ORCP 36

See also annotations under ORS 41.615 in permanent edition.

NOTES OF DECISIONS

In general

      Nothing in this rule or in ORCP 39, 40, 41, 43 or 44 gives judge authority to order party to civil action to prepare list to be furnished to another party of the identity and location of occurrence witness. State ex rel Union Pacific RR v. Crookham, 295 Or 66, 663 P2d 763 (1983)

      Where fire marshal had told insurer that fire had been intentionally set, insurer had basis for believing that denial of insured’s claim and litigation were likely and investigation reports prepared for insurer were made in anticipation of litigation and protected as work product. United Pacific Insurance Co. v. Trachsel, 83 Or App 401, 731 P2d 1059 (1987), Sup Ct review denied

      Insurer was not entitled to material protected only as work product because insurer failed to make required showing of substantial need and undue hardship. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

      Where prosecution questioned expert witness for defense on subject other than subject for which expert had been retained, opinion of expert was not privileged work product. State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993), on reconsideration126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

      Whether discovery procedure involved undue expense was determined by burden and expense of complying with discovery request, not burden and expense involved in using discovery material at trial. State ex rel Anderson v. Miller, 320 Or 316, 882 P2d 109 (1994)

      Where necessity of protective order is demonstrated, in order to prevent hardship to party, court may award attorney fees as “reasonable expenses” in attending deposition. Carton v. Shisler, 146 Or App 513, 934 P2d 448 (1997), Sup Ct review denied

      Party seeking disclosure of documents must present trial court with sufficient evidence that documents are subject to exception to asserted privilege or that documents are not within scope of asserted privilege. Kahn v. Pony Express Courier Corp., 173 Or App 127, 20 P3d 837 (2001), Sup Ct review denied

      Court may not order pretrial disclosure of expert witness’s name or substance of expert witness’s testimony. Stevens v. Czerniak, 336 Or 392, 84 P3d 140 (2004); Ransom v. Radiology Specialists of Northwest, 363 Or 552, 425 P3d 412 (2018)

      Expert witness may also be fact witness subject to deposition with regard to facts personally known to witness and not gathered primarily for purpose of rendering expert opinion. Gwin v. Lynn, 344 Or 65, 176 P3d 1249 (2008); Ransom v. Radiology Specialists of Northwest, 363 Or 552, 425 P3d 412 (2018)

LAW REVIEW CITATIONS

Under former similar statute (ORS 41.617)

      56 OLR 551 (1977)

In general

      27 WLR 1 (1991); 89 OLR 1445 (2011)

ORCP 36B

NOTES OF DECISIONS

      Waiver of work-product protection for trial preparation materials is generally treated on per document basis and not based on subject-matter waiver, so disclosure of some documents does not waive protection for all other documents on same subject. Meyer v. Oregon Lottery, 292 Or App 647, 426 P3d 89 (2018)