OREGON CIVIL LITIGATION MANUAL
CONTENTS
VOLUME 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Oregon State Courts:
Practice and Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jan Shea
Stephen P. Armitage
Timetable for Litigation Matters . . . . . . . Richard B. Thierolf, Jr.
Litigation Checklist . . . . . . . . . . . . . . . . . . . Katherine R. Heekin
Client Interviewing and Counseling . . . . . . . . . J. Michael Dwyer
Case Investigation . . . . . . . . . . . . . . . . . . . . . . David H. Williams
Jason M. Pistacchio
Litigation Technology . . . . . . . . . . . . . . . . . . Katherine R. Heekin
Peter H. Glade
Pleadings and Parties . . . . . . . . . . . . . . . . . . . William A. Masters
Summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nena Cook
Removal from State to Federal Court . . . . . . . Scott E. Crawford
Pretrial Motions . . . . . . . . . . . . . . . . . . . . . . . Brian J. MacRitchie
Alycia N. Sykora
Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . Thomas C. Sand
Sabrina P. Loiselle
Stipulations and Orders . . . . . . . . . . . . . . . . Hon. Karla J. Knieps
Temporary Restraining Orders
and Preliminary Injunctions . . . . . . . . . . . . . . . . . . . . . Nena Cook
Tender of Defense . . . . . . . . . . . . . . . . . . . . . . . Barbara J. Gazeley
Negotiation and Settlement . . . . . . . . . . . Hon. Kristena A. LaMar
Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . Timothy J. Helfrich
Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Matthew A. Levin
David B. Markowitz
Charles J. Paternoster
vii
Contents
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
VOLUME 2
Requests for Production; Inspection;
Physical and Mental Examinations . . Michael (“Sam”) Sandmire
Inara K. Scott
Requests for Admissions . . . . . . . . . . . . . . . . . . . . . Amy R. Alpern
Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin E. Hansen
Cynthia J. Starke
Jury Selection: Voir Dire . . . . . . . . . . . . . . . . . Timothy W. Grabe
Trial Notebooks . . . . . . . . . . . . . . . . . . . . . . . . . Susan K. Eggum
Trial Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . Barry M. Mount
Trial Motions . . . . . . . . . . . . . . . . . . . . . . . . Donald E. Templeton
Brian R. Talcott
Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . David A. Landrum
Denise G. Fjordbeck
Verdicts and Findings . . . . . . . . . . . . . . . . . . . . . . Robert Udziela
Costs and Disbursements . . . . . . . . . . . . . . . . . . Tara J. Schleicher
Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . Paul B. Heatherman
Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jacqueline Koch
Mark B. Comstock
Collection of Judgments;
Provisional Process . . . . . . . . . . . . . . . . . . . . Jason W. Alexander
Michael G. Halligan
Posttrial Matters . . . . . . . . . . . . . . . . . . . . . . . . . . Donald H. Pyle
William T. Patton
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charles F. Adams
Keith M. Garza
Bonds and Undertakings . . . . . . . . . . . . . . . . Michael G. Halligan
Jason W. Alexander
Table of Forms and Appendixes
Table of Statutes and Rules
Table of Cases
Subject Index
viii
EDITORS’ PREFACE
This fourth edition of Oregon Civil Litigation Manual revises the
book that was introduced in 1976 and revised in 1982 and 1993, with
intermediate supplements. Over the span of 28 years, the book has grown
from one volume to two, and has accommodated major changes in the
way we practice law in Oregon, from adoption of the ORCP to increased
emphasis on negotiation and settlement to collecting attorney fees for our
work. Because of the publication in 1994 of Federal Civil Litigation
Manual, this fourth edition no longer covers federal practice. Oregon
Civil Litigation Manual, however, remains a source of information on the
“how-tos” of litigating in Oregon state courts.
Although every effort was made to ensure that this material is
current as of the publication date, rule changes are pending for the
Oregon Rules of Appellate Procedure and the Federal Rules of Civil
Procedure. We attempted to highlight the sections of the book that may
be affected if a proposed rule change takes effect. Nevertheless, as with
all legal research, the lawyer should research original sources of
authority.
We owe great thanks to the authors who worked on this project.
Their generous donation of legal expertise and valuable time is a measure
of their dedication to our profession. We are fortunate to count them as
members of the Oregon State Bar.
Thanks, too, to the capable OSB CLE staff for often reminding us
and the authors of our commitment to publishing this edition, and for
producing the finished product.
KIP CHILDS
CHARLES ADAMS
Editors
November 2004
v
17
MATTHEW A. LEVIN
DAVID B. MARKOWITZ
CHARLES J. PATERNOSTER
DEPOSITIONS
I.
II.
(§17.1)
INTRODUCTION
OVERVIEW OF THE PROCESS AND
THE APPLICABLE RULES
A. (§17.2)
Discovery Depositions
B. (§17.3)
Perpetuation Depositions
C. (§17.4)
Applicable Rules and Case Law
III.
PLANNING DEPOSITION DISCOVERY
A. (§17.5)
Whether and Whom to Depose
B. (§17.6)
Coordination with Other Means of Discovery
IV.
SETTING THE DEPOSITION
A. (§17.7)
Timing and Order of Depositions
B. (§17.8)
Scheduling
MATTHEW A. LEVIN, B.S., J.D. (cum laude), University of Michigan (1991,
1994); member of the State Bar of Michigan since 1995 and the Oregon State Bar
since 2000; shareholder, Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland.
DAVID B. MARKOWITZ, B.S., California State Polytechnic University (1971); J.D.
(with great distinction), University of the Pacific, McGeorge School of Law
(1974); member of the Oregon State Bar since 1974; shareholder, Markowitz,
Herbold, Glade & Mehlhaf, P.C., Portland.
CHARLES J. PATERNOSTER, B.A., Colgate University (1993); J.D., University of
Pittsburgh (1998); member of the New York State Bar Association since 1998
and the Oregon State Bar since 2002; associate, Markowitz, Herbold, Glade &
Mehlhaf, P.C., Portland.
17-1
C.
D.
E.
F.
V.
VI.
17-2
(§17.9)
Location
The Notice of Deposition
1. (§17.10) Necessity
2. (§17.11) Form of Notice
3. (§17.12) When Served
4. (§17.13) Document Request
5. (§17.14) Who Served; Irregularities in Notice
6. (§17.15) Filing
Compelling Attendance at the Deposition
1. (§17.16) Parties
2. (§17.17) Nonparty Witnesses
Recording
1. Court Reporters
a.
(§17.18) Depositions Within the State
b.
(§17.19) Depositions Outside the State;
Letters Rogatory
c.
(§17.20) Depositions in Another Country
d.
(§17.21) Disqualification of the Reporter
2. (§17.22) Nonstenographic Recording
PREPARING FOR THE DEPOSITION
A. (§17.23) Examination of Documents and
Understanding of Facts
B. (§17.24) Identification of Issues and Big Questions
C. (§17.25) Preparing Exhibits
D. Preparing the Witness
1. (§17.26) The Witness Interview
2. (§17.27) Refreshing the Witness’s Recollection
with Documents
CONDUCTING THE DEPOSITION
A. (§17.28) Who May Attend
B. (§17.29) Stipulations Regarding the Conduct of
the Deposition
C. (§17.30) The Oath
D. (§17.31) Dealing with the Unresponsive Witness
E. (§17.32) Depositions of Nonparties
VII.
VIII.
IX.
X.
XI.
XII.
DEFENDING AT THE DEPOSITION
A. (§17.33) Objections
1. (§17.34) Objections as to Form
2. (§17.35) Instructions Not to Answer
B. (§17.36) Cross-Examination
(§17.37)
SUMMARY OF WAIVER OF OBJECTIONS
THE TRANSCRIPT
A. (§17.38) Obtaining the Transcript
B. (§17.39) Reading and Signing
C. (§17.40) Retention of Exhibits
D. (§17.41) Technology and the Transcript
E. (§17.42) Filing the Transcript
COURT INTERVENTION IN THE DEPOSITION
A. (§17.43) Motion to Limit Scope or Shorten or
Enlarge Time for Deposition
B. (§17.44) Motion to Terminate or Limit Examination
C. (§17.45) Motion for Expenses for Failure to
Appear and Proceed
SPECIAL TYPES OF DEPOSITIONS
A. (§17.46) Depositions to Perpetuate Testimony
B. (§17.47) Depositions of Experts
C. (§17.48) Depositions of Organizations
D. (§17.49) Records Depositions
E. (§17.50) Telephone Depositions
F. (§17.51) Videotaped Depositions
(§17.52)
USING THE DEPOSITION TRANSCRIPT
AT TRIAL
FORMS
17-1 Notice of Deposition
17-2 Motion, Affidavit, and Order for Commission to
Take Out-of-State Deposition
17-3 Commission to Take Foreign Deposition
17-4 Notice of Deposition of Organization
17-5 Notice of Perpetuation Deposition
17-3
§17.1 / Depositions
I. (§17.1) INTRODUCTION
In Oregon state practice, given the lack of interrogatories, the
deposition is the most important discovery tool available to the civil
litigator. This chapter provides an overview of the Oregon Rules of Civil
Procedure as they relate to depositions (ORCP 36–43, 46, and 55) and
describes local practice based on those rules.
II. OVERVIEW OF THE PROCESS
AND THE APPLICABLE RULES
A. (§17.2)
Discovery Depositions
A discovery deposition is taken to obtain sworn testimony in
question and answer form before trial, usually from an adverse witness
who otherwise refuses to provide information to counsel, or from a
witness whose veracity or continued availability is in question.
B.
(§17.3)
Perpetuation Depositions
A perpetuation deposition is a deposition taken with the
understanding that it will be used at trial in lieu of the witness’s live
testimony, usually due to the expected unavailability of the witness at the
time of trial. A witness’s testimony may be perpetuated before an action
is filed or pending appeal on the basis set forth in ORCP 37, which is
self-explanatory. The rules for perpetuation of testimony after
commencement of an action are set forth in ORCP 39 I.
C.
(§17.4)
Applicable Rules and Case Law
The general rules that must be understood to conduct any
deposition in Oregon state court are ORCP 36 (General Provisions
Governing Discovery) and ORCP 39 (Depositions upon Oral
Examination). Other rules that are of interest with respect to specific
issues are ORCP 37 (Perpetuation of Testimony or Evidence Before
Action or Pending Appeal), ORCP 38 (Persons Who May Administer
Oaths for Depositions; Foreign Depositions), which describes the
requirements for recorders of depositions both inside and outside the
state, and ORCP 41 (Effect of Errors and Irregularities in Depositions).
ORCP 40 describes a little-used procedure for obtaining information
through depositions on written questions. Also important are ORCP 46
(Failure to Make Discovery; Sanctions) and ORCP 55 (Subpoena).
NOTE: Because there is relatively little Oregon case law on
the subject of depositions, Oregon courts readily rely on federal
17-4
Depositions / §17.6
case law interpreting comparable federal procedural rules. See, e.g.,
Vaughan v. Taylor, 79 Or App 359, 363 n 3, 718 P2d 1387 (1986);
Boon and Boon, 100 Or App 354, 357, 786 P2d 215 (1990).
PRACTICE TIP: The Multnomah Bar Association (MBA)
Court Liaison Committee has published guidelines for local
deposition practice, which are available from the MBA. See
<www.mbabar.org/docs/depositionguide.pdf>. In addition, the
Multnomah County Motion Panel periodically releases information
regarding its general practice with respect to common issues, and
these conclusions are often published in the Multnomah Lawyer.
The MBA can provide information from recent issues regarding
motion panel statements.
III. PLANNING DEPOSITION DISCOVERY
A. (§17.5)
Whether and Whom to Depose
Depositions are an expensive means of discovery. Therefore, the
budget of a case must be considered in planning a deposition. The
longest and most complex depositions are usually those of the parties.
Once depositions of the parties are taken, a lawyer should consider
taking the depositions of nonparty witnesses. These depositions often
involve witnesses who are out of the local area and therefore involve
increased expense.
A lawyer should consider the possibility of obtaining the
information he or she seeks through informal processes, such as talking
to witnesses informally or obtaining documents via subpoena for
nonparty witnesses.
PRACTICE TIP: In the case of a corporate party, the opposing
party may wish to start with a middle or higher level management
person, even a person not necessarily best informed about a
particular transaction, in order to obtain an overview of the
corporate structure, and in the hope that that person might make
concessions about the transaction as a whole, the corporation’s
management, the way in which the corporation is run, or the
corporation’s business, without understanding the significance of
that testimony.
B.
(§17.6)
Coordination with Other Means of Discovery
The efficient lawyer will obtain significant documents in advance
of, and with an eye toward, the first depositions. The lawyer should take
17-5
§17.7 / Depositions
depositions early in the case to allow time during the discovery period
for follow-up depositions of witnesses identified through the initial
depositions of parties or key management employees.
PRACTICE TIP: Lawyers should remember to monitor local
court practice regarding time limits and possible resistance to
setovers of older cases merely because discovery is incomplete.
IV. SETTING THE DEPOSITION
A. (§17.7)
Timing and Order of Depositions
A deposition may be taken at any time after an appearance is due
from the defendant in the case, usually 30 days after service of summons
and complaint. ORCP 39 A. If the plaintiff seeks to take a deposition
before the expiration of the time to appear and answer, it must obtain
leave of court unless (1) the defendant has served a notice of deposition
or has otherwise sought discovery or (2) the plaintiff gives a special
notice because the person to be deposed is about to leave the state or is
bound on a voyage to sea before the expiration of the time period.
ORCP 39 A, 39 C(2).
NOTE: A deposition taken pursuant to special notice will not
be admissible against any party unable, after the exercise of due
diligence, to obtain a lawyer in time for the deposition. ORCP
39 C(2).
The law does not specify the order in which depositions must be
taken. Notices properly and timely served will control. Strategic
considerations in the timing of depositions require more complex inquiry.
A lawyer contemplating the timing and scheduling of depositions must
consider, among other issues:
•
the availability of document discovery in advance of the
depositions;
•
the sequence that will best prepare witnesses for their testimony
given prior testimony by other witnesses;
•
the possibility that some depositions will lead to the necessity for
others; and
•
the witnesses who will most likely have testimony for summary
judgment or other motions, or regarding additional discovery issues.
In state court, there are no time limits for completion of
depositions. Occasionally, courts will grant a protective order that a
deposition not be taken at a time when the lawyers should be getting
17-6
Depositions / §17.9
ready for trial. At the same time, most courts expect the parties to
reasonably cooperate in taking perpetuation depositions that may occur
just before trial.
B.
(§17.8)
Scheduling
The general practice is to schedule the deposition at a time chosen
by agreement of all parties, beginning with a telephone call to opposing
lawyers requesting alternative dates for the deposition, taking the
schedule of the witness into account. Once the parties agree on a date
and time, the lawyer prepares the notice required by ORCP 39 C.
Lawyers encountering difficulty in scheduling a deposition may
apply to the court for intervention and appropriate scheduling orders by
means of a motion to compel or a motion for a protective order. The
court also has the power to enter such orders under its general
supervisory authority over discovery, and when a plaintiff refuses to
appear within a court established time frame for deposition, it is not an
abuse of discretion for the trial court to dismiss the case. Mestas v.
Peters, 280 Or 447, 571 P2d 888 (1977).
It is also within the court’s discretion to include attorney fees in a
protective order issued pursuant to a motion under ORCP 36 C. In
Carton v. Shisler, 146 Or App 513, 515, 934 P2d 448 (1997), the
plaintiff planned perpetuation depositions of a number of Californiaresident witnesses. The defendant obtained a protective order from the
trial court granting him reimbursement for reasonable costs and attorney
fees incurred to attend the California depositions. The court of appeals
construed the language of the rule providing for “any order which justice
requires” to be broad enough to include an award of fees. Carton, supra,
146 Or App at 516.
PRACTICE TIP: If it is necessary to notice a deposition without
the consent of another party due to that party’s lack of response to
requests for convenient dates, the lawyer should first send a letter
stating the time and date chosen and requesting that the
unresponsive party immediately reply with alternative dates. If the
party does not respond, the lawyer should send the notice on a date
stated in the letter. Of course, significant time pressure or other
considerations may obviate this process.
C.
(§17.9)
Location
The general rules that most courts follow for determining the
proper place for a deposition are as follows:
17-7
§17.9 / Depositions
•
The plaintiff can be deposed in the place where the action was
filed, where the plaintiff lives, or where the plaintiff has its place
of business, whichever place is most convenient for the defendant.
•
The defendant and nonparties can be deposed wherever they live
or have a business, whichever is most convenient for the parties
and witnesses. 39 MULTNOMAH LAW 6 (June 1993) (motion panel
rulings).
These are, of course, general rules that are subject to review and
modification on request at the court’s discretion. The notice of deposition
will control in the event of disagreement regarding location, and if
change is desired, a ruling must be sought from the court.
Local practice is to hold the deposition at the office of the lawyer
for the witness or the party producing the witness or, in the case of
third-party witnesses, at the office of the lawyer for the party who seeks
the deposition.
Pursuant to a motion for a protective order (ORCP 36 C(2)), the
court can, for good cause shown, designate that the deposition be taken
at a different place. The availability of telephone depositions makes this
less of an issue than it used to be.
Depositions of out-of-town party witnesses may be required to
occur at the place of filing, depending on the witness’s relationship to
the claim. For example, a plaintiff who resides elsewhere but chose to
file in this state will be required to attend a deposition in Oregon at his
or her own expense. A key representative of a corporate party may
similarly be required to attend a deposition locally, although in the case
of a defendant the court may make a determination that other
considerations will govern the location.
A nonparty witness who is an Oregon resident may be required to
attend a deposition by subpoena only in the county where that person
resides, is employed, or transacts business in person, or in another
convenient place ordered by the court. A nonresident nonparty witness
may be required to attend within the state only if personally served in
the state and only in the county where served or in another convenient
location pursuant to court order. ORCP 55 F(2). Oregon process served
outside the state is not effective to compel attendance anywhere.
Depositions taken outside the state in actions before Oregon state
courts are authorized by ORCP 38 B. Under that rule, formal notice must
be issued pursuant to ORCP 39 C, but local practice in the jurisdiction
in which the examination is held will govern issuance of subpoenas and
17-8
Depositions / §17.11
the qualification of the person administering the oath and taking the
record of the deposition.
If an action is pending in another state’s courts and a party wants
to depose a witness in Oregon, a subpoena can be obtained in Oregon.
Whenever any mandate, writ, or commission is issued by a court in the
other state, or “whenever upon notice or agreement” it is required to take
the testimony of a witness, the witness may be compelled to appear and
testify in the same manner and by the same procedure as is used in
actions pending in Oregon. ORCP 38 C.
PRACTICE TIP: When proceeding “upon notice or agreement,”
the party seeking the subpoena should file a motion with the court
and an affidavit stating that litigation is pending in a foreign
jurisdiction and the deponent’s testimony or records are necessary
for the litigation. See, e.g., SLR 5.095(4) (Multnomah).
D.
The Notice of Deposition
1.
(§17.10) Necessity
As discussed in §17.8, supra, depositions are usually scheduled by
agreement of the parties. Therefore, the notice of deposition will serve
as a confirmation, rather than the first information, that a deposition will
take place at a designated time and place. Nevertheless, sending a formal
notice is a recommended practice because it provides a clear and
unequivocal statement of the basic parameters of the deposition,
including the method of recording, and proof of notice will be necessary,
if a party deponent does not appear according to its terms, to obtain
sanctions. ORCP 46 D. The availability of sanctions against a party for
failure to appear at a deposition can depend on service of a proper
notice. ORCP 39 H, 46 D.
2.
(§17.11) Form of Notice
A notice of deposition must give reasonable notice, be in writing,
and be served on every party to the action. ORCP 39 C(1). The notice
of deposition must state the following:
•
the time and place of the deposition (ORCP 39 C(1));
•
the name and address of each person to be deposed (ORCP
39 C(1));
•
if an organization is to be deposed, the matters, described with
reasonable particularity, on which examination is requested (ORCP
39 C(6));
17-9