The Council on Court Procedures is considering whether or not to promulgate the following proposed amendments to the Oregon Rules of Civil Procedure. Boldface (with underlining) denotes new language; italicized language within bold brackets indicates language to be deleted.
Comments regarding the proposed amendments to the Oregon Rules of Civil Procedure may be sent to:
Maurice J. Holland
Council on Court Procedures
1221 University of Oregon School of Law
Eugene, OR 97403-1221
Kathryn H. Clarke
Chair, Council on Court Procedures
921 Southwest Washington, Suite 764
Portland, OR 97205
The Council meeting at which the Council will receive comments from the public relating to the proposed amendments will be held commencing at 9:30 a.m. on the following date and place:
December 11, 2004
Oregon State Bar Center
5200 Southwest Meadows Road
Lake Oswego, Oregon
The Council will take final action on the proposed amendments at the December 11, 2004, meeting.
* * * * *
F Service by telephonic facsimile communication device.
Whenever under these rules service is required or permitted to be made upon a party, and that party is represented by an attorney, the service may be made upon the attorney by means of a telephonic facsimile communication device if the attorney maintains such a device at the attorney's office and the device is operating at the time service is made. Service in this manner shall be equivalent to service by mail for purposes of Rule 10 C.
* * * * *
F Notice and exclusion.
F(1) When ordering that an action be maintained as a class action under this rule, the court shall direct that notice be given to some or all members of the class under subsection E(2) of this rule, shall determine when and how this notice should be given and shall determine whether, when, how, and under what conditions putative members may elect to be excluded from the class. The matters pertinent to these determinations ordinarily include: (a) the nature of the controversy and the relief sought; (b) the extent and nature of any member's injury or liability; (c) the interest of the party opposing the class in securing a final resolution of the matters in controversy; (d) the inefficiency or impracticality of separately maintained actions to resolve the controversy; (e) the cost of notifying the members of the class; and (f) the possible prejudice to members to whom notice is not directed. When appropriate, exclusion may be conditioned on a prohibition against institution or maintenance of a separate action on some or all of the matters in controversy in the class action or a prohibition against use in a separately maintained action of any judgment rendered in favor of the class from which exclusion is sought.
F(2) Prior to the entry of a final judgment against a defendant the court [shall request] may require members of the class who may be entitled to individual monetary recovery to submit a [statement in a form] claim form prescribed by the court requesting affirmative relief which may also, where appropriate, require information regarding the nature of the loss, injury, claim, transactional relationship, or damage. When required, [T]the [statement] claim form shall be designed to meet the ends of justice. In determining [the form of the statement] whether to require a claim form and what form it shall take, the court shall consider the nature of the acts of the defendant, the amount of knowledge a class member would have about the extent of such member's damages, the nature of the class including the probable degree of sophistication of its members, the probable cost of administering claim forms, the possible prejudice to the parties and class members of omitting the claim form, the probable size of the class, the probable size of individual class members' claims, and the availability of relevant information from sources other than the individual class members. When the court requires a claim form, [T]the amount of damages assessed against the defendant shall not exceed the total amount of damages determined to be allowable by the court for each individual class member who has filed a statement required by the court, assessable court costs, and an award of attorney fees, if any, as determined by the court.
F(3) When a claim form is required, [F]failure of a class member to file a statement required by the court will be grounds for entry of judgment dismissing such class member's claim for individual monetary recovery without prejudice to the right to maintain an individual, but not a class, action for such claim.
F(4) Plaintiffs shall bear costs of any notice ordered prior to a determination of liability. The court may, however, order that defendant bear all or a specified part of the costs of any notice included with a regular mailing by defendant to its current customers or employees. The court may hold a hearing to determine how the costs of such notice shall be apportioned.
F(5) No duty of compliance with due process notice requirements is imposed on a defendant by reason of the defendant including notice with a regular mailing by the defendant to current customers or employes of the defendant under this section.
F(6) As used in this section, "customer" includes a person, including but not limited to a student, who has purchased services or goods from a defendant.
* * * * *
A [Order] Notice for examination. When the mental or physical condition or the blood relationship of a party, or of an agent, employee, or person in the custody or under the legal control of a party (including the spouse of a party in an action to recover for injury to the spouse), is in controversy, [the court] any party for good cause may [order] compel the party to submit to a physical or mental examination by a physician or a mental examination by a psychologist or to produce for examination the person in such party's custody or legal control. [The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and] To compel an examination under this rule, a party shall give reasonable notice in writing to every other party to the action or proceeding and to the person to be examined. The notice shall state the time, place, manner, and conditions for conducting the examination, the scope of the examination [and the person or persons by whom it is to be made], and the name and address of the examiner. The following conditions shall apply to an examination under this rule:
(1) The parties, the examinee, and their representatives shall comply with any conditions for the examination to which they agree in writing.
(2) No person shall obstruct the examination. The court may impose sanctions against a party or person who obstructs an examination and may order any relief that the court deems necessary to remedy an obstruction.
(3) Any party, the examinee, and the examining physician or psychologist may record the examination by audiotape in an unobtrusive manner. However, the court shall limit or prohibit the audiotaping of an examination to prevent infringement of a right protected by the law of copyright regarding any psychological test, or to prevent a violation of an ethical rule that applies to the physician or psychologist who conducts the examination. A person who records an examination by audiotape shall retain the original recording without alteration until final disposition of the proceeding unless the court orders otherwise. Upon request, and upon payment of the reasonable charges for copying, the person who records the examination shall make and furnish a copy of the original audiotape recording to any party, the examinee, or their representatives.
(4) All objections to questions asked and the procedures followed during the examination are reserved for trial or other disposition by the court. The examinee may refuse to disclose information or a communication that is protected from disclosure by the law of privilege.
(5) The court by order, and for good cause, may alter any of the foregoing conditions or require that the examination occur under different or additional conditions.
B Report of examining physician or psychologist. If requested by the party [against] to whom [an order] a notice for examination is [made] delivered under section A of this rule or the person examined, the party causing the examination to be made shall deliver to the requesting person or party a copy of a detailed report of the examining physician or psychologist setting out such physician's or psychologist's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party [against] to whom the [order] notice of examination is [made] delivered a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows inability to obtain it. This section applies to examinations made by agreement of the parties, unless the agreement expressly provide otherwise.
C Reports of examinations; claims for damages for injuries. In a civil action where a claim is made for damages for injuries to the party or to a person in the custody or under the legal control of a party, upon the request of the party against whom the claim is pending, the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought unless the claimant shows inability to comply.
D Report; effect of failure to comply.
D(1) Preparation of written report. If an obligation to furnish a report arises under sections B or C of this rule and the examining physician or psychologist has not made a written report, the party who is obliged to furnish the report shall request that the examining physician or psychologist prepare a written report of the examination, and the party requesting such report shall pay the reasonable costs and expenses, including the examiner's fee, necessary to prepare such a report.
D(2) Failure to comply or make report or request report. If a party fails to comply with sections B and C of this rule, or if a physician or psychologist fails or refuses to make a detailed report within a reasonable time, or if a party fails to request that the examining physician or psychologist prepare a written report within a reasonable time, the court may require the physician or psychologist to appear for a deposition or may exclude the physician's or psychologist's testimony if offered at the trial.
E Access to individually identifiable health information. Any party against whom a civil action is filed for compensation or damages for injuries may obtain copies of individually identifiable health information as defined in Rule 55 H within the scope of discovery under Rule 36 B. Individually identifiable health information may be obtained by written patient authorization, by an order of the court, or by subpoena in accordance with Rule 55 H.
A Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
* * * * *
(A)(2) Motion. If a party fails to furnish a report under Rule 44 B or C, or if a deponent fails to answer a question propounded or submitted under Rules 39 or 40, or if a corporation or other entity fails to make a designation under Rule 39 C(6) or Rule 40 A, or if a party fails to respond to a request for a copy of an insurance agreement or policy under Rule 36 B(2), or if a party in response to a request for inspection submitted under Rule 43 fails to permit inspection as requested, the discovering party may move for an order compelling discovery in accordance with the request. Any motion made under this subsection shall set out at the beginning of the motion the items that the moving party seeks to discover. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 36 C.
* * * * *
B Failure to comply with order.
* * * * *
B(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent or a person designated under Rule 39 C(6) or 40 A to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section A of this rule or Rule 44, the court in which the action is pending may make such orders in regard to the failure as are just, including among others, the following:
B(2)(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
B(2)(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;
B(2)(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party;
B(2)(d) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
B(2)(e) Such orders as are listed in paragraphs (a), (b), and (c) of this subsection, where a party has failed to comply with [an order] a notice for examination under Rule 44 A requiring the party to produce another for examination, unless the party failing to comply shows inability to produce such person for examination.
* * * * *
* * * * *
E Compromise; effect of acceptance or rejection.
E(1) Except as provided in ORS 17.065 through 17.085, the party against whom a claim is asserted may, at any time up to 10 days prior to trial, serve upon the party asserting the claim an offer to allow judgment to be given against the party making the offer for the sum, or the property, or to the effect therein specified.
E(2)If the party asserting the claim accepts the offer, the party asserting the claim or such party's attorney shall endorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon such party asserting the claim; and thereupon judgment shall be given accordingly, as a stipulated judgment. [Unless agreed upon otherwise by the parties, costs, disbursements, and attorney fees shall be entered in addition as part of such judgment as provided in Rule 68.] If the offer does not state that it includes costs and disbursements or attorney fees, the party asserting the claim shall submit any claim for costs and disbursements or attorney fees to the court as provided in Rule 68.
E(3) If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the party asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer, but the party against whom the claim was asserted shall recover of the party asserting the claim costs and disbursements, not including prevailing party fees, from the time of the service of the offer.
* * * * *
[H Necessity of noting exception on error in statement of issues or instruction; all other exceptions automatic. No statement of issues submitted to the jury pursuant to subsection C(2) of this rule and no instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury. Any point of exception shall be particularly stated and taken down by the reporter or delivered in writing to the judge. It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction or a requested statement of issues, except those contained in instructions and statements of issues given, shall import an exception in favor of the party against whom the ruling was made.]
H Necessity of noting exception on error in statement of issues or instructions given or refused
H(1) Statement of issues or instructions given or refused . A party may not obtain review on appeal of an asserted error by a trial court in submitting or refusing to submit a statement of issues to a jury pursuant to subsection C(2) of this rule or in giving or refusing to give an instruction to a jury unless the party who seeks to appeal identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury.
H(2) Exceptions must be specific and on the record. A party shall state with particularity any point of exception to the trial judge. A party shall make a notation of exception either orally on the record or in a writing filed with the court.
* * * * *
C Demand for judgment. Every judgment shall grant the relief to which the party in whose favor it is rendered is entitled[, even if such relief has not been demanded in the pleadings, except: C(1) Default. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. However, a default judgment granting equitable remedies may differ in kind from or exceed in amount that prayed for in the demand for judgment, provided that reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered. C(2) Demand for money damages. Where a demand for judgment is for a stated amount of money as damages, any judgment for money damages shall not exceed that amount.] . A judgment for relief different in kind from or exceeding the amount prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered.
* * * * *
A Requirements for issuance. To obtain an order for issuance of provisional process the plaintiff shall cause to be filed with the clerk of the court from which such process is sought a sworn petition and any necessary supplementary affidavits or declarations requesting specific provisional process and showing, to the best knowledge, information, and belief of the plaintiff, affiant or declarant that the action is one in which provisional process may issue, and:
* * * * *
[A(9) If provisional process is based on notice of a bulk transfer, a copy of the notice;]
[A(10)] A(9) Facts, if any, which tend to establish that there is a substantial danger that the defendant or another person is engaging in, or is about to engage in, conduct which would place the claimed property in danger of destruction, serious harm, concealment, removal from this state, or transfer to an innocent purchaser;
[A(11)] A(10) Facts, if any, which tend to establish that without restraint immediate and irreparable injury, damage, or loss will occur;
[A(12)] A(11) Facts, if any, which tend to establish that there is substantial danger that the defendant or another person probably would not comply with a temporary restraining order; and
[A(13)] A(12) That there is no reasonable probability that the defendant can establish a successful defense to the underlying claim.
B Provisional process prohibited in certain consumer transactions.
No court shall order issuance of provisional process to effect attachment of a consumer good or to effect attachment of any property if the underlying claim is based on a consumer transaction. Provisional process authorized by Rule 85 may issue in consumer transactions.
C Evidence admissible; choice of remedies available to court.
C(1) The court shall consider the affidavit, declaration or petition filed under section A of this rule and may consider other evidence including, but not limited to, an affidavit, a declaration, a deposition, an exhibit, or oral testimony.
C(2) If from the affidavit, declaration or petition or other evidence, if any, the court finds that a complaint on the underlying claim has been filed and that there is probable cause for sustaining the validity of the underlying claim, the court shall consider whether it shall order issuance of provisional process, as provided in section D [or E] of this rule, or a restraining order, as provided in section [F] E of this rule, in addition to a show cause order. The finding under this subsection is subject to dissolution upon hearing.
[D Effect of notice of bulk transfer. Subject to section B of this rule, if the court finds that with respect to property of the defendant notice of bulk transfer has been given and that the time for possession by the transferee has not passed, the court shall order issuance of provisional process.]
Issuance of provisional process where damage to property
* * *
[F] E Restraining order to protect property. * * *
[G] F Appearance; hearing; service of show cause order; content; effect of service on person in possession of property. * * *
[H] G Waiver; order without hearing. If after service of the order issued under subsection [G(1)] F(1) of this rule, the defendant by a writing executed by or on behalf of the defendant after service of the order expressly declares that defendant is aware of the right to be heard and does not want to be heard, that defendant expressly waives the right to be heard, that defendant understands that upon signing the writing the court will order issuance of the provisional process sought so that the possession or control of the claimed property will be taken from the defendant or another person, the court, subject to section B of this rule without hearing shall order issuance of provisional process.
[I] H Authority of court on sustaining validity of underlying claim; provisional process; restraining order.
[I(1)] H(1) Subject to section B of this rule, if the court on hearing on a show cause order issued under section [G] F of this rule finds that there is probable cause for sustaining the validity of the underlying claim and if Rule 82 A has been complied with, the court shall order issuance of provisional process. The order shall describe with particularity the provisional process which may be issued.
[I(2)] H(2) Subject to section B of this rule, if the court on hearing on a show cause order issued under section [G] F of this rule finds that there is probable cause for sustaining the validity of the underlying claim but that the provisional process sought cannot properly be ordered, and if Rule 82 A has been complied with, the court in its discretion may continue or issue a restraining order of the nature described in section [F] E of this rule. If a restraining order is issued, it shall conform to the requirements of Rule 79 D. A restraining order under this subsection does not create a lien.