This article is a part of her continuing series on civil litigation in Oregon. In a previous article, we introduced the concept of pretrial "discovery." Essentially, discovery is the exchange of information prior to trial. This article focuses on the most common method of pretrial discovery, the request for production.
Keep in mind that the Oregon Rules of Civil Procedure govern civil litigation in Oregon all the way from the very first filing of a complaint, up to the filing of a judgment after trial. Many rules deal with the methods permitted for pretrial discovery, including the request for production
The more formal name of this device is the" request for production of documents and things." It is a written request from one party to another seeking actual documents that are reasonably calculated to lead to discovery of something relevant to the issues in the case. In the personal injury claim, the most common requests involve medical records, medical bills, witness statements, a copy of the driver's license, and even proof of insurance at the time of an auto collision. If one party took the statement of another, that information must also be provided.
It is not enough for one party to claim that they do not have the records in their possession. For example, an injured Plaintiff may not have all of his medical records, but because he has the ability to obtain those records, the rules require him to go get those records, because they are the kind document that is "within his control."
In a civil claim involving injury, a defense attorney will often request diary entries or other the plaintiff may have generated discussing his or her injuries. More recently, the emphasis has shifted to social media entries. Many requests for production now seek a complete social media data. However, trial courts have been tempering the scope of social media that a defense attorney can request in any given case.
Another common issue in requests for documents is the request for prior medical records. Generally, a defense attorney is entitled to obtain medical records generated prior to the date of injury at issue in a case if this records relate to treatment of an area the body injured in the accident alleged in the plaintiff's complaint. Many times, this is referred to as the "body part rule."
In many cases, the request for production will seek documents that are not reasonably calculated to lead to anything relevant to the case, and a party is permitted to object to those kinds of requests. If there is a disagreement between the parties, then the court may intervene to sort out what documents should be provided.
The request for production a plaintiff files will often seek the same information that a defendant seeks in his or her request for production. However, there are differences. For example, if the defendant was a driver working for an employer, the plaintiff's attorney may be interested to see whether or not that driver was disciplined for prior accidents, or was properly trained before the employer entrusted that employee with a vehicle.
Many times, we discuss these issues when first meeting our client. If you have a claim, and are concerned about what documents may need to be provided, call us at 503-325-8600. We deal with these issues every day.