Bruce C. Hamlin, Portland (Chair
J. Michael Alexander, Esq., Salem (Vice Chair)
John H. McMillan, Salem (Treasurer)
Lisa A. Amato, Esq., Portland (as of 12/98)
Hon. David V. Brewer, Eugene
Bruce J. Brothers, Esq., Bend
Hon. Anna J. Brown, Portland
Lisa C. Brown, Esq., Portland
Hon. Ted Carp, Eugene
Kathryn S. Chase, Esq., Eugene
Hon. Allan H. Coon, Grants Pass
Diana L. Craine, Esq., Lake Oswego
Judge Don A. Dickey, Salem
Justice Robert D. Durham, Salem
William A. Gaylord, Esq., Portland
Hon. Daniel L. Harris, Medford
Hon. Rodger J. Isaacson, Klamath Falls
Hon.Virginia L. Linder, Salem
Hon. Michael H. Marcus, Portland
Connie Elkins McKelvey, Esq., Portland (as of 8/98)
David B. Paradis, Esq. Medford
Karsten H. Rasmussen, Esq., Eugene
Nancy S. Tauman, Esq., Portland
Maurice J. Holland, Executive Director
Gilma J. Henthorne, Executive Assistant
Mailing Address:
1221 University of Oregon
School of Law
Eugene, OR 97403-1221
Telephone: (541) 346-3834
(541) 346-3990
FAX: (541) 346-1541
The following amendments to the Oregon Rules of Civil Procedure have been promulgated by the Council on Court Procedures for submission to the 1999 Legislative Assembly. Pursuant to ORS 1.735, they will become effective January 1, 2000, unless the Legislative Assembly by statute modifies the action of the Council.
During the 1997-1999 biennium, the Council has taken action to correct problems relating to rules promulgated during previous biennia. The comment which follows each rule was prepared by Council staff. Those comments reflect the intent of the Council, but are not officially adopted by the Council. Subdivisions of rules are called sections and are indicated by capital letters, e.g., A; subdivisions of sections are called subsections and are indicated by arabic numerals in parentheses, e.g., (1); subdivisions of subsections are called paragraphs and are indicated by lower case letters in parentheses, e.g., (a), and subdivisions of paragraphs are called subparagraphs and are indicated by lower case Roman numerals in parentheses, e.g., (iv).
The amended rules are set out with both the current and amended language. New language is shown in boldface, with underlining, and language to be deleted is italicized and bracketed.
The Council held public meetings at the Oregon State Bar Center in Lake Oswego, Oregon, on November 15, 1997, January 10, 1998, February 14, 1998, March 14, 1998, June 13, 1998, July 11, 1998, August 15, 1998, September 12, 1998, and December 12, 1998.
The Council expresses its appreciation to the bench and the Bar for the comments and suggestions it has received.
RULE 39 DEPOSITIONS UPON ORAL EXAMINATION
RULE 68 ALLOWANCE AND TAXATION OF ATTORNEY FEES AND COSTS AND DISBURSEMENTS
* * * *
D Manner of service.
* * *
D(2) Service Methods.
* * *
D(2)(b) Substituted service. Substituted service may be made
by delivering a true copy of the summons and the complaint at the
dwelling house or usual place of abode of the person to be served,
to any person [over] 14 years of age or older residing in the
dwelling house or usual place of abode of the person to be served.
Where substituted service is used, the plaintiff, as soon as
reasonably possible, shall cause to be mailed, by first class mail,
a true copy of the summons and the complaint to the defendant at
defendant's dwelling house or usual place of abode, together with
a statement of the date, time, and place at which substituted
service was made. For the purpose of computing any period of time
prescribed or allowed by these rules or by statute, substituted
service shall be complete upon such mailing.
* * * *
D(3) Particular defendants. Service may be made upon
specified defendants as follows:
D(3)(a) Individuals.
* * *
D(3)(a)(iv) Tenant of a mail agent. Upon an individual
defendant who is a "tenant" of a "mail agent" within the meaning of
ORS 646.221 by delivering a true copy of the summons and the
complaint to any person apparently in charge of the place where the
mail agent receives mail for the tenant, provided that:
(A) the plaintiff makes a diligent inquiry but cannot find the
defendant; and
(B) the plaintiff, as soon as reasonably possible after
delivery, causes a true copy of the summons and the complaint
to be mailed by first class mail to the defendant at the
address at which the mail agent receives mail for the
defendant and to any other mailing address of the defendant
then known to the plaintiff, together with a statement of the
date, time, and place at which the plaintiff delivered the
copy of the summons and the complaint.
Service shall be complete on the latest date resulting from
the application of subparagraph D(2)(d)(ii) of this rule to all
mailings required by this subparagraph unless the defendant signs
a receipt for the mailing, in which case service is complete on the
day the defendant signs the receipt.
* * * *
E By whom served; compensation. A summons may be served by
any competent person 18 years of age or older who is a resident of
the state where service is made or of this state and is not a party
to the action nor, except as provided in ORS 180.260, an officer,
director, or employee of, nor attorney for, any party, corporate or
otherwise. However, service pursuant to subparagraph D(2)(d)(i) of
this rule may be made by an attorney for any party. Compensation
to a sheriff or a sheriff's deputy in this state who serves a
summons shall be prescribed by statute or rule. If any other
person serves the summons, a reasonable fee may be paid for
service. This compensation shall be part of disbursements and
shall be recovered as provided in Rule 68.
* * * *
Council on Court Procedures, Staff Comment, 1998
New subparagraph D(3)(a)(iv) authorizes a method of serving
individual defendants, apart from minors or incapacitated persons,
who are "tenants" of "mail agents" as those terms are defined by
ORS 646.221. This method may be used only when the party making
service has been unable to find the party upon whom service is to
be made despite having made diligent inquiry in an effort to do so.
Service by this method is complete on the latest date
resulting from application of subparagraph D(2)(d)(ii) of this rule
or the date on which the party served receipts for the mailing
required by (B) of subparagraph D(3)(a)(iv) of this rule, whichever
is later.
DEPOSITIONS UPON ORAL EXAMINATION
RULE 39
* * * *
[D Examination and cross-examination; record of
examination; oath; objections. Examination and cross-examination
of witnesses may proceed as permitted at the trial. The person
described in Rule 38 shall put the witness on oath. The testimony
of the witness shall be recorded either stenographically or as
provided in subsection C(4) of this rule. If testimony is
recorded pursuant to subsection C(4) of this rule, the party
taking the deposition shall retain the original recording without
alteration, unless the recording is filed with the court pursuant
to subsection G(2) of this rule, until the final disposition of
the action. If requested by one of the parties, the testimony
shall be transcribed upon the payment of the reasonable charges
therefor. All objections made at the time of the examination to
the qualifications of the person taking the deposition, or to the
manner of taking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the proceedings,
shall be noted upon the record. Evidence objected to shall be
taken subject to the objections. In lieu of participating in the
oral examination, parties may serve written questions on the
party taking the deposition who shall propound them to the
witness and see that the answers thereto are recorded verbatim.]
D Examination; record; oath; objections.
D(1) Examination; cross-examination; oath. Examination and
cross-examination of deponents may proceed as permitted at trial.
The person described in Rule 38 shall put the deponent on oath.
D(2) Record of examination. The testimony of the deponent
shall be recorded either stenographically or as provided in
subsection C(4) of this rule. If testimony is recorded pursuant
to subsection C(4) of this rule, the party taking the deposition
shall retain the original recording without alteration, unless
the recording is filed with the court pursuant to subsection G(2)
of this rule, until final disposition of the action. Upon
request of a party or deponent and payment of the reasonable
charges therefor, the testimony shall be transcribed.
D(3) Objections. All objections made at the time of the
examination shall be noted on the record. A party or deponent
shall state objections concisely and in a non-argumentative and
non-suggestive manner. Evidence shall be taken subject to the
objection, except that a party may instruct a deponent not to
answer a question, and a deponent may decline to answer a
question, only:
(a) when necessary to present or preserve a motion
under section E of this rule;
(b) to enforce a limitation on examination ordered by
the court; or
(c) to preserve a privilege or constitutional or
statutory right.
D(4) Written questions as alternative. In lieu of
participating in an oral examination, parties may serve written
questions on the party taking the deposition who shall propound
them to the deponent on the record.
[E Motion to terminate or limit examination. At any time
during the taking of a deposition, on motion of any party or of
the deponent and upon a showing that the examination is being
conducted or hindered in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or any
party, the court in which the action is pending or the court in
the county where the deposition is being taken shall rule on any
question presented by the motion and may order the officer
conducting the examination to cease forthwith from taking the
deposition, or may limit the scope and manner of the taking of
the deposition as provided in Rule 36 C. Those persons described
in Rule 46 B(2) shall present the motion to the court in which
the action is pending. Non-party deponents may present the
motion to the court in which the action is pending or the court
at the place of examination. If the order terminates the
examination, it shall be resumed thereafter only upon the order
of the court in which the action is pending. Upon demand of the
objecting party or deponent,the taking of the deposition shall be
suspended for the time necessary to make a motion for an order.
The provisions of Rule 46 A(4) apply to the award of expenses
incurred in relation to the motion.]
E Motion for court assistance; expenses.
E(1) Motion for court assistance. At any time during the
taking of a deposition, upon motion and a showing by a party or a
deponent that the deposition is being conducted or hindered in
bad faith, or in a manner not consistent with these rules, or in
such manner as unreasonably to annoy, embarrass, or oppress the
deponent or any party, the court may order the officer conducting
the examination to cease forthwith from taking the deposition, or
may limit the scope or manner of the taking of the deposition as
provided in section C of Rule 36. The motion shall be presented
to the court in which the action is pending, except that
non-party deponents may present the motion to the court in which
the action is pending or the court at the place of examination.
If the order terminates the examination, it shall be resumed
thereafter only on order of the court in which the action is
pending. Upon demand of the moving party or deponent, the
parties shall suspend the taking of the deposition for the time
necessary to make a motion under this subsection.
E(2) Allowance of expenses. Subsection A(4) of Rule 46
shall apply to the award of expenses incurred in relation to a
motion under this section.
* * * *
Council on Court Procedures, Staff Comment, 1998
In addition to being reorganized in subsections for greater
clarity, Section D is amended in response to a suggestion by the
OSB Procedure and Practice Committee that, in addition to their
long established authority to deal with violations of this rule
by deposing parties or their attorneys, courts be given more
explicit authority to provide relief against certain kinds of
misconduct on the part of attorneys for deponents or other
parties.
Specifically, the amendments to Section D provide that
objections must be stated concisely, non-suggestively, and non-argumentatively, and prescribe the limited circumstances in which
a deponent may properly be instructed not to answer a question.
Section E is reorganized in subsections for greater clarity
and its title is changed from "Motion to terminate or limit
examination" to "Motion for court assistance" to reflect its
being expanded to authorize a motion for appropriate judicial
relief when an oral deposition is being "hindered in bad faith,
or in a manner not consistent with these rules [emphasis added]."
The court has broad discretion in fashioning appropriate relief.
Subsection 46 A(4) applies to the award of expenses of a
motion under subsection E(1) of this rule.
SUBPOENA
RULE 55
* * * *
I Medical records.
* * *
I(2) Manner of service. If a patient or health care
recipient is represented by an attorney, a true copy of a
subpoena duces tecum for medical records of a patient or health
care recipient must be served on the attorney for the patient or
health care recipient [at least 15] not less than 14 days before
the subpoena is served on a custodian or other keeper of medical
records. Upon a showing of good cause, the court may shorten or
lengthen the [15-day] 14-day period. Service on the attorney for
a patient or health care recipient under this section may be made
in the manner provided by Rule 9 B. If the patient or health
care recipient is not represented by an attorney, service of a
true copy of the subpoena must be made on the patient or health
care recipient [at least 15] not less than 14 days before the
subpoena is served on the custodian or other keeper of medical
records. Upon a showing of good cause, the court may shorten or
lengthen the [15-day] 14-day period. Service on a patient or
health care recipient under this section must be made in the
manner specified by Rule 7 D(3)(a) for service on individuals.
* * * *
Council on Court Procedures, Staff Comment, 1998
Subsection 55 I(2) is amended to change from 15 to 14 the
minimum number of days before being served on the records
custodian a medical records subpoena must be served on the
patient or health care recipient to whom the records pertain, or
on his or her attorney. This amendment makes this subsection
consistent with the 14 days required for hospital records
subpoenas by paragraph H(2)(b) of this rule.
ALLOWANCE AND TAXATION
OF ATTORNEY FEES AND COSTS
AND DISBURSEMENTS
RULE 68
* * * *
C(4)(c) Hearing on objections.
* * *
C(4)(c)(ii) The court shall deny or award in whole or in
part the amounts sought as attorney fees or costs and
disbursements. [No findings of fact or conclusions of law shall
be necessary.]
* * *
C(4)(e) Findings and conclusions. On the request of a
party, the court shall make special findings of fact and state
its conclusions of law on the record regarding the issues
material to the award or denial of attorney fees. A party shall
make a request pursuant to this paragraph by including a request
for findings and conclusions in the title of the statement of
attorney fees or costs and disbursements or objections filed
pursuant to paragraph (a) or (b) of this subsection. In the
absence of a request under this paragraph, the court may make
either general or special findings of fact and may state its
conclusions of law regarding attorney fees.
* * * *
Council on Court Procedures, Staff Comment, 1998
The rule previously provided that: "No findings of fact or
conclusions of law shall be necessary." In recent years appellate
courts have increasingly experienced the need to remand rulings
on attorney fee awards to the trial court for supplementation of
the record by inclusion of findings and conclusions material to
such rulings because of the difficulty or impossibility of
conducting meaningful review in their absence. See, e.g.,
Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990).
A new paragraph C(4)(e) is added requiring the trial court
to make special findings of fact and state its conclusions of law
regarding issues material to any ruling on a statement of
attorney fees or objections thereto, which make clear the factual
and legal basis for the denial of requested fees or the amount in
which they are awarded. However, this requirement is conditional
upon a request for special findings of fact and conclusions of
law being timely made. In the absence of a timely request the
court may make only a general finding of fact and need not state
its conclusions of law separately. A request under this paragraph
is timely only if included in the title of the statement filed
pursuant to paragraph C(4)(a) of this rule or in the title of any
objections filed pursuant to paragraph C(4)(b) of this rule.
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