CONTENTS OREGON CIVIL LITIGATION MANUAL

Transcription

1 OREGON CIVIL LITIGATION MANUAL CONTENTS VOLUME 1 1 Oregon State Courts: Practice and Rules...Jan Shea Stephen P. Armitage 2 Timetable for Litigation Matters... Richard B. Thierolf, Jr. 3 Litigation Checklist... Katherine R. Heekin 4 Client Interviewing and Counseling... J. Michael Dwyer 5 Case Investigation...David H. Williams Jason M. Pistacchio 6 Litigation Technology... Katherine R. Heekin Peter H. Glade 7 Pleadings and Parties... William A. Masters 8 Summons...Nena Cook 9 Removal from State to Federal Court... Scott E. Crawford 10 Pretrial Motions...Brian J. MacRitchie Alycia N. Sykora 11 Summary Judgment... Thomas C. Sand Sabrina P. Loiselle 12 Stipulations and Orders... Hon. Karla J. Knieps 13 Temporary Restraining Orders and Preliminary Injunctions...Nena Cook 14 Tender of Defense...Barbara J. Gazeley 15 Negotiation and Settlement... Hon. Kristena A. LaMar 16 Discovery... Timothy J. Helfrich 17 Depositions... Matthew A. Levin David B. Markowitz Charles J. Paternoster vii

2 Contents VOLUME 2 18 Requests for Production; Inspection; Physical and Mental Examinations.. Michael ( Sam ) Sandmire Inara K. Scott 19 Requests for Admissions...Amy R. Alpern 20 Subpoenas... Martin E. Hansen Cynthia J. Starke 21 Jury Selection: Voir Dire... Timothy W. Grabe 22 Trial Notebooks... Susan K. Eggum 23 Trial Memoranda...Barry M. Mount 24 Trial Motions...Donald E. Templeton Brian R. Talcott 25 Jury Instructions... David A. Landrum Denise G. Fjordbeck 26 Verdicts and Findings... Robert Udziela 27 Costs and Disbursements...Tara J. Schleicher 28 Attorney Fees... Paul B. Heatherman 29 Judgments...Jacqueline Koch Mark B. Comstock 30 Collection of Judgments; Provisional Process...Jason W. Alexander Michael G. Halligan 31 Posttrial Matters...Donald H. Pyle William T. Patton 32 Appeals...Charles F. Adams Keith M. Garza 33 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

3 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

4 17 MATTHEW A. LEVIN DAVID B. MARKOWITZ CHARLES J. PATERNOSTER DEPOSITIONS I. ( 17.1) INTRODUCTION II. III. IV. 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 PLANNING DEPOSITION DISCOVERY A. ( 17.5) Whether and Whom to Depose B. ( 17.6) Coordination with Other Means of Discovery 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

5 C. ( 17.9) Location D. 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 E. Compelling Attendance at the Deposition 1. ( 17.16) Parties 2. ( 17.17) Nonparty Witnesses F. 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 V. 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 VI. 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 17-2

6 VII. 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 VIII. ( 17.37) SUMMARY OF WAIVER OF OBJECTIONS IX. 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 X. 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 XI. 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 XII. ( 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

7 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

8 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 < 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

9 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

10 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

11 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

12 Depositions / 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