Civil Litigation in Oregon: An Introduction to Discovery

This is a article and are continuing series on civil litigation in Oregon. In this article, we introduce the concept of pretrial "discovery."

After a plaintiff files a complaint, and a defendant files an answer in response to that complaint, the parties have "framed the issues" in the case. In theory, the attorneys and litigants now know what facts are agreed upon and what facts are disputed. The next step in the litigation is to exchange information between the parties to flesh out the allegations in the pleadings (papers filed in court).

There are several methods or vehicles available in conducting pretrial discovery. The parties can request actual documents from each other, can ask each other to admit or deny certain allegations or factual statements, can inspect an accident scene or another party's property, or even request someone to submit to a medical examination. In our series of articles, we address each mode or method of discovery separately. In this article, we concentrate on defining the scope or breadth of information typically exchanged prior to a trial.

Generally, each party is allowed to ask for information regarding any matter that is "reasonably calculated" to lead to discovery of relevant evidence. In plain English, this means that one party can ask another for any information that has a good chance of lading to something that would be relevant at a trial. This standard is much more broad than the "relevance" standard that is used at a jury trial. Sometimes, examples are better at illustrating this point.

In injury claim, and injured plaintiff may allege that she suffered a lower back injury as a result of the defendant's negligence. Obviously, the defendant is entitled to information regarding the injured plaintiff's low back injury. However, at a deposition, a defense attorney will ask many questions about the plaintiff's general medical history, to see whether not there any pre-accident issues playing a role in the development of the plaintiff's low back problems. Sometimes, there could be a request for medical records for treatment prior date of the accident or injury, especially if the injured plaintiff treated the same part of the body that was injured in an auto collision or accident. Many times, this information will not come up at trial, because it is simply not relevant. However, it is clearly discoverable.

If the parties have a disagreement about whether some document or information should be provided, the Court rules require that they at least make an attempt to resolve their differences. If the conflict still exists, then the party seeking the information can file a motion to compel with the trial court. The trial court then reviews the written arguments of each party, and might hear oral argument before making a decision. If the trial court finds that the information should be requested, it will issue an order compelling the objecting party to produce the information requested. In extreme cases, the court may find that the party refusing to provide information acted in bad faith, and could sanction that party with assessment of attorney fees or other kinds of penalties.

You may have an injury claim against someone that involves an aggravation of a pre-existing injury. This is fairly common, and if you have questions, call us at 503-325-8600. We deal with these issues every day, and can explain how the law works when somebody is negligent, and aggravates a pre-existing medical issue.

Joe Di Bartolomeo
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Top-rated Personal Injury Lawyer Helping Oregon and Washington Families