Oregon Expert Witness Discovery Rules

What Is the Scope of Expert Discovery in Oregon?

In Oregon, the discovery of expert information is governed by specific rules that align in part with federal standards while maintaining unique state-specific provisions. Under Oregon Rules of Civil Procedure (Or. R. Civ. P.) 36 B(2)(a), parties are permitted to use interrogatories to ascertain the identity of expert witnesses expected to testify at trial, the subject matter of their testimony, and the facts and opinions they will provide. While Oregon does not require the automatic exchange of expert reports, parties may request either a written report from the expert or a summary of the expert's expected testimony.

Oregon's framework does not directly mirror Federal Rule of Civil Procedure 26(b)(4), particularly in terms of automatic disclosures and the discovery of draft reports or expert communications. Though recent amendments to ORCP 36 have aligned certain protections with federal standards, Oregon does not explicitly address the discoverability of draft reports or communications, generally protecting them under work-product principles.

Timing and Procedure for Expert Discovery in Oregon

The timing of expert discovery in Oregon is typically controlled by the court's scheduling order, which sets deadlines for disclosures and exchanges. Expert discovery generally occurs after initial disclosures and before trial, often several months in advance.

• Interrogatories for Expert Information: A party may use interrogatories to compel disclosure of expert witness details, including identity, subject matter, and testimony content (Or. R. Civ. P. 36 B(2)(a)).
• Exchange of Expert Reports: While not automatic, parties can request expert witness report or summaries.
• Depositions: Depositions of experts require either mutual agreement or a court order, as Oregon's rules generally disfavor routine expert depositions.

What Methods of Expert Discovery Are Permitted in Oregon?

Oregon allows the following methods for expert discovery:

• Interrogatories: Primarily used to gather expert witness information.
• Document Requests: Can be used to obtain written reports or summaries of expert testimony.
• Depositions: Permitted with agreement or court order, subject to a showing of good cause.

Discovery is generally limited to testifying experts. Non-testifying experts are protected unless exceptional circumstances are shown. Oregon's rules do not explicitly use federal terminology distinguishing between testifying and consulting experts but offer protection under work-product doctrines.

Limits on Discovery of Expert Materials and Communications

Oregon's approach to expert materials and communications relies on work-product principles, although explicit rule coverage is absent:

• Draft Reports and Communications: Typically protected, with recent ORCP 36 amendments aligning with federal protections.
• Exceptions: Discovery may be allowed for materials showing bias or facts/data considered by the expert.
• Judicial Precedents: Oregon courts have not extensively clarified these protections beyond aligning with general work-product doctrines.

Consequences for Noncompliance or Discovery Violations

Noncompliance with expert discovery rules in Oregon can lead to significant consequences:

• Exclusion of Testimony: The court may exclude expert testimony if disclosure requirements are not met (Or. R. Civ. P. 46).
• Sanctions: Sanctions may include monetary penalties or other measures to ensure compliance.
• Court's Discretionary Control: The court maintains inherent authority to manage trial evidence, including expert testimony.

Relevant Rules and Legal Authority in Oregon

Oregon's expert discovery is primarily governed by:

• Or. R. Civ. P. 36 B(2)(a): Governs expert interrogatories.
• Or. R. Civ. P. 36 C: Requires supplementation of discovery responses.
• Or. R. Civ. P. 46: Outlines sanctions for discovery violations.
• Or. Evid. Code 702: Relates to the admissibility of expert testimony, adhering to the Brown/O’Key standard, similar to the federal Daubert standard.

Oregon's rules emphasize flexibility and judicial discretion, differing from federal practice by not mandating automatic disclosures and limiting routine expert depositions. These distinctions underscore the state's tailored approach to expert discovery, balancing thoroughness with protection of sensitive materials.