Oregon Rules Regarding Expert Witness Depositions and Interrogatories
Oregon rules and cases do not provide for any pre-trial discovery relating to expert witnesses (see the following section). Accordingly, experts will not be subject to depositions or interrogatories in Oregon absent mutual agreement between the parties.
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Oregon Expert Witness Reports and Disclosures Rules
The Oregon Supreme Court has made clear that the Oregon Rules of Civil Procedure do not authorize pretrial disclosure of experts’ identities or the substance of their testimony. Stevens v. Czerniak, 84 P.3d 140, 146 (Or. 2004) (“Having considered the text, context, and legislative history of [Oregon Rule of Civil Procedure] 36, we agree with petitioner that the legislature did not intend to authorize pretrial disclosure of either an expert’s name or the substance of the expert’s testimony. Without a specific provision authorizing expert discovery, the trial court lacked authority to require the parties to disclose that information in advance of trial.”). Instead, as the Court of Appeals of Oregon describes, the Oregon rules permit “what is colloquially referred to as ‘trial by ambush,’ and protect from pretrial disclosure the identities of experts and the substance of their testimony.” Hinchman v. UC Mkt., LLC, 348 P.3d 328, 333 (Or. Ct. App. 2015). Note, though, that while the Oregon rules do not require disclosures relating to experts, they also do not proscribe the parties from mutually agreeing to make such disclosures. See State ex rel. Crown Power & Equip. Co., L.L.C v. Ravens, 309 S.W.3d 798, 805 n.8 (Mo. 2009) (discussing Oregon’s approach in a Missouri Supreme Court decision).
Note also that in situations where an expert opinion is necessary to establish a genuine issue of material fact to oppose a motion for summary judgment, Rule 47E of the Oregon Rules of Civil Procedure comes into play. This rules prevents motions for summary judgment from becoming vehicles requiring the unilateral disclosure of expert information. Instead of requiring the disclosure of the name of the expert, the expert’s qualifications, and the expert’s facts and opinions, Rule 47E deems sufficient the submission of an affidavit or a declaration of the party’s attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact. This declaration must be made in good faith based on admissible facts or opinions of a qualified expert who has actually been retained and is willing to testify.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Oregon
As noted above, the Oregon Rules of Civil Procedure do not provide for any pretrial discovery relating to expert witnesses. Instead, as one commentator has described, “[u]pon completion of direct examination, opposing counsel receives the materials the expert reviewed with a long recess or lunch break to prepare cross examination.” Douglas M. Branson, No Contest: Corporate Lawyers and the Perversion of Justice in America, 48 Case W. Res. 459, 473 (1998) (book review). Although it appears Oregon courts have not had occasion to decide whether an attorney communicating to an expert materials or information that would otherwise be protected work product renders such materials discoverable, this commentary (“opposing counsel receives the materials the expert reviewed”) suggests that possibility.