Properly understood, expert confidentiality cannot be “waived” in Oregon2020-04-23T00:25:19+00:00
05.14.2014 // CONSTRUCTION LAW WATCH
Properly understood, expert confidentiality cannot be “waived” in Oregon

The Oregon state courts have unique rules regarding expert discovery.  The Oregon Rules of Civil Procedure do not allow for pre-trial depositions or document discovery from experts hired by the parties.  However, lawyers frequently confuse and challenge each other on the basis for this.  Often there is reference to the concept that the expert may be within the attorney-client privilege, or that his or her work product may somehow be confidential.  As a result, in order to protect their experts from discovery requests, and to avoid a “waiver” of protection, parties often share expert reports and materials as “mediation communications.”  The parties put significant effort into making sure that all of the other participating parties agree that any expert materials which are shared are “mediation communication” to make sure that there is no “waiver” of whatever protection exists in Oregon for experts. 

Can expert witnesses be deposed in Oregon?

No, regardless of any issue of “waiver.”  It is not necessary to couch the expert discovery limitation only in terms of privilege, or work product.   A party is only entitled to discovery which is permitted by the Oregon Rules of Civil Procedure or expressly authorized by statute or caselaw.

Quite simply, the Oregon Rules of Civil Procedure do not allow a party to depose another’s expert witness, or to review the expert’s file, prior to trial.  The Oregon Supreme Court reaffirmed this longstanding rule in Stevens v. Czerniak, 336 Or 392, 400 (2004):  “[I]n deleting ORCP 36B(4), the legislature made a policy choice to continue the practice of not authorizing expert discovery in civil actions in state courts.”  Id. at 146-147. 

In general, “in a civil action, a party has no obligation to disclose information to another party in advance of trial unless the rules of civil procedure or some other source of law requires the disclosure.”  Id. at 400 (citing State ex rel Union Pacific Railroad v. Crookham, 295 Or 66, 68–69 (1983). 

Therefore, under the Oregon Rules of Civil Procedure, there is simply no mechanism for one party to require another’s expert to testify about their opinions, or provide their expert files, prior to trial.  That’s it.

This is true regardless of whether the experts’ materials are somehow produced and are not protected by a mediation “confidentiality” agreement. The Rules of Civil Procedure cannot be “waived” by the unilateral action of a party, in the way a party may be able to “waive” certain privileges by sharing the information outside of the privilege.

Parties opposing requests for expert discovery should be reminded to raise not only privilege or work product concerns, but also simply point out the fact that the requesting party seeks discovery without an enabling rule or statute.

ABOUT BALL JANIK LLP

Ball Janik LLP was founded in 1982 with six lawyers and a four-person support staff in Portland, Oregon. Since our firm’s inception, we have expanded our capabilities, our professionals, and geographic footprint. What started as a firm focused in real property and land use (known then as Ball Janik & Novack), has grown to include the insights of a team of 30-plus attorneys, with a combined six centuries of experience, and capabilities including Real Estate and Land Use, Construction Defect, Commercial Litigation, Insurance Recovery, Construction and Design, Employment, Finance and Corporate, Public Agencies and Schools, and Community Associations. With offices in Florida and Oregon, our regional growth has earned us a national reputation for upholding the rights of our clients.

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Heather J. Oden
Oregon , Portland
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