Oregon Motion to Compel

Introduction

Key Things to Know

1. 1

   Oregon's enumerated discovery methods decide the shape of the dispute. ORCP 36 A names depositions on oral examination or written questions, production of documents or things or permission to enter land or other property for inspection and other purposes, physical and mental examinations, and requests for admission. Interrogatories to parties are not on the list. ORCP 46 A(2) then lets the discovering party move for an order compelling discovery where a party fails to furnish a report under Rule 44 B or C, a deponent fails to answer a question under Rule 39 or 40, an entity fails to make a designation under Rule 39 C(6) or Rule 40 A, a party fails to respond to a request for a copy of an insurance agreement or policy under Rule 36 B(2), or a party fails to produce or to permit inspection as requested under Rule 43.

2. 2

   The expense award is permissive, and the same rule shows you that the choice was deliberate. ORCP 46 A(4) provides that if the motion is granted the court may, after an opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both of them, to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust. The denied limb uses the same may against you and the attorney advising the motion. Compare ORCP 46 B(3), where a party who disobeys an order already entered faces an award the court shall make, and ORCP 46 D, where a total failure carries the same shall.

3. 3

   That contrast is the practical point, and it runs against intuition. A fight about an inadequate or objected-to response is an ORCP 46 A(2) motion with a discretionary fee. A party who never appeared for a properly noticed deposition, or who neither complied with nor served objections to a Rule 43 request after proper service, is handled by ORCP 46 D, where the court shall require the party failing to act or the attorney advising that party, or both, to pay the reasonable expenses caused by the failure, unless the failure was substantially justified or other circumstances make an award unjust. ORCP 46 D also closes an argument off: the failure may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order under Rule 36 C.

4. 4

   The requirement most often missed is in a different rulebook. ORCP 46 says nothing about talking to the other side first. UTCR 5.010(2) does, and it states the consequence rather than a fee: the court will deny any motion made pursuant to ORCP 36 through 46, unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the issues in dispute. UTCR 5.010(4) then requires a certificate of compliance filed at the same time the motion is filed, and tells you what suffices: a statement either that the required conference took place or containing facts showing good cause for its absence. UTCR 5.010(5) adds that an unopposed motion, once certified as such, may be submitted ex parte.

5. 5

   Three things go in or with the motion, from two instruments. ORCP 46 A(2) fixes both content and placement: any motion made under that subsection shall identify at the beginning of the motion the items that the moving party seeks to discover. UTCR 5.020(1) requires that every motion document include a memorandum of law or a statement of authority explaining how any relevant authorities support the contentions of the moving party. And UTCR 5.010(4) requires the certificate of compliance. UTCR 5.030 then sets the clock on the other side: an opposing party may file a written memorandum of authorities not later than 14 days from the date of service or the date of filing of the motion, whichever is later, and a reply must be filed within seven days of the service or filing of the responding memorandum.

6. 6

   On a production dispute Oregon does ask you to move reasonably promptly, but only as a standard. ORCP 43 B(5), captioned Seeking relief under Rule 46 A(2), provides that a party who moves for an order under Rule 46 A(2) regarding any objection or other failure to respond or to permit inspection, copying, entry, or related acts as requested, must do so within a reasonable time. There is no number of days and the rule states no consequence, so delay is not a bar on the rule's own words. Note also where the sentence sits: it is in the Rule 43 production rule, and there is no equivalent sentence for depositions, for Rule 44 reports or for the Rule 36 B(2) insurance request.

7. 7

   Two form rules give you something concrete to point at. Against the responding party, ORCP 43 B(2) prescribes what a production response must contain, including any objection to a request or a part of it and the reason for each objection, and ORCP 43 B(3) provides that any objection not stated in accordance with B(2) is waived, that an objection to only part of a request must clearly state the part objected to, and that an objection does not relieve the party of the duty to comply with any part not specifically objected to. Against the requesting party, ORCP 45 A requires a request for admission to be preceded by a statement in capital letters, in a font size at least as large as the request itself, warning that failure to serve a written answer or objection within the time allowed by ORCP 45 B will result in admission.

Oregon Requirements for Motion to Compel

• Which of the Five ORCP 46 A(2) Grounds Applies

  ORCP 46 A(2) lets the discovering party move where a party fails to furnish a report under Rule 44 B or C, a deponent fails to answer a question propounded or served under Rule 39 or Rule 40, a corporation or other entity fails to make a designation under Rule 39 C(6) or Rule 40 A, a party fails to respond to a request for a copy of an insurance agreement or policy under Rule 36 B(2), or a party fails to produce or to permit inspection as requested under Rule 43. Interrogatories are absent because ORCP 36 A does not provide for them as a discovery method. Requests for admission are also absent: silence admits the matter under ORCP 45 B and a non-complying answer goes to the ORCP 45 C motion to determine sufficiency.

• The Items You Seek, Identified at the Beginning of the Motion

  ORCP 46 A(2) provides that any motion made under that subsection shall identify at the beginning of the motion the items that the moving party seeks to discover. The placement is part of the requirement, so this goes in the opening lines rather than in an exhibit, the memorandum or a schedule at the end. List the specific documents, deposition questions, designation or report, not the dispute in general terms.

• The UTCR 5.010(4) Certificate of Compliance

  UTCR 5.010(2) provides that the court will deny any motion made pursuant to ORCP 36 through 46 unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the issues in dispute. UTCR 5.010(4) then requires the moving party to file a certificate of compliance with the rule at the same time the motion is filed, and provides that the certificate will be sufficient if it states either that the parties conferred or contains facts showing good cause for not conferring. ORCP 46 itself contains no such requirement, so a reader working only from the civil rules will miss it.

• A Memorandum of Law or a Statement of Authority

  UTCR 5.020(1) provides that every motion document must include a memorandum of law or a statement of authority explaining how any relevant authorities support the contentions of the moving party. The lighter option is available, but something must accompany the motion. UTCR 5.030 then sets the opposing clock: an opposing party may file a written memorandum of authorities not later than 14 days from the date of service or the date of filing of the motion, whichever is later, with a reply within seven days of the service or filing of that memorandum. UTCR 5.040 provides that the presiding judge or designee shall hear and determine all motions.

• The Court You File In, Which Is Fixed for a Non-Party Deponent

  ORCP 46 A(1)(a) provides that a motion directed against a party may be made to the court in which the action is pending and, on matters relating to a deponent's failure to answer questions at a deposition, also to the circuit court for the county where the deponent is located. ORCP 46 A(1)(b) provides that a motion directed against a deponent who is not a party shall be made to the circuit court for the county where the non-party deponent is located. Against a non-party the word is shall, so there is no choice.

• Proof the Thirty Day Period and the Forty Five Day Floor Had Run

  State the computation. ORCP 43 B(2) gives 30 days after service of a request for production, or such other time as the court may order or to which the parties may agree in writing, and separately provides that a request may not require a defendant to produce or allow inspection before the expiration of 45 days after service of summons unless the court specifies a shorter time. ORCP 45 B gives 30 days on a request for admission with the same 45-day floor for a defendant unless the court shortens the time. Note that Oregon expressly requires a party agreement extending the production period to be in writing.

• That You Are Moving Within a Reasonable Time on a Production Dispute

  ORCP 43 B(5) provides that a party who moves for an order under Rule 46 A(2) regarding any objection or other failure to respond or to permit inspection, copying, entry, or related acts as requested, must do so within a reasonable time. There is no day count and the rule states no consequence, so this is a standard rather than a bar. Record the date of the objection or the failure and be ready to explain any gap. The sentence sits in the Rule 43 production rule, and no equivalent appears for a deposition question, a Rule 44 report or the Rule 36 B(2) insurance request.

• The Expense Request, and Why Winning Does Not Guarantee It

  ORCP 46 A(4) provides that if the motion is granted the court may, after an opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both of them, to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust, and that if the motion is denied the same permissive award runs against the moving party or the attorney advising the motion. The verb is may on both limbs. Contrast ORCP 46 B(3), where the court shall require payment from a party who disobeys an order already entered, and ORCP 46 D, where the same shall applies to a party who never appeared or never responded at all.