Oregon depositions: no hour limit, a three-day designation rule, and a separate track for trial testimony

Because Oregon has no interrogatories, depositions carry more of the case here than they do anywhere else. ORCP 36 A lists four discovery methods — depositions, document production, physical and mental examinations, and requests for admission — and the first is where most of the work happens.

ORCP 39 responds by leaving the tool largely unconstrained: no seven-hour clock, no numerical cap, no presumptive limits of the kind Federal Rule 30 imposes.

When you can take one

ORCP 39 A: after service of summons or the appearance of the defendant — or, in a special proceeding, at any time after a question of fact has arisen — any party may take the testimony of any person, including a party, by deposition on oral examination.

Leave of court, with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of the period of time specified in Rule 7 to appear and answer after service of summons on any defendant, except that leave is not required: (1) if a defendant has served a notice of taking deposition or otherwise sought discovery; or (2) a special notice is given as provided in subsection C(2) of this rule

So the only gate is on an early plaintiff deposition, and even that has two exceptions.

Prisoners — ORCP 39 B: the deposition of a person confined in a prison or jail "may only be taken by leave of court," on the terms the court prescribes. The court may order it taken at the place of confinement, or — where the prisoner is confined in Oregon — order temporary removal and production.

The special notice: a witness about to leave

ORCP 39 C(2) is Oregon's escape from the waiting period, and it has three requirements plus a certification:

(a) The notice states that the person to be examined is about to go out of the state, or is bound on a voyage to sea, and will be unavailable for examination unless the deposition is taken before the expiration of the period of time specified in Rule 7 to appear and answer after service of summons on any defendant. (b) sets forth facts to support the statement. (c) The plaintiff's attorney signed the notice, and that signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true.

And there is a safeguard for the other side. Under ORCP 39 C(2)(d), if a party shows that when served with a special notice "the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party."

The special notice therefore buys speed, not admissibility. A deposition taken before the defendant could find a lawyer may be unusable against them.

The notice

ORCP 39 C(1): reasonable notice in writing to every other party, stating the time and place and the name and address of each person to be examined — or, where the name is unknown, "a general description sufficient to identify the person or the particular class or group to which the person belongs."

Where a subpoena duces tecum will be served, "the designation of the materials to be produced as set forth in the subpoena must be attached to or included in the notice."

Documents from a party — ORCP 39 C(5): a notice to a party deponent may be accompanied by a request under Rule 43 for production of documents and tangible things at the deposition, and Rule 43's procedures apply to the request. So a party document demand attached to a deposition notice runs on Rule 43 timing, not on the notice period.

Recording — ORCP 39 C(4): the notice may provide for non-stenographic recording, in which case it must designate the manner of recording and preserving the deposition. The court "may require that the deposition be taken by stenographic means if necessary to assure that the recording be accurate."

Timing changes — ORCP 39 C(3): the court may for cause shown enlarge or shorten the time.

Organization depositions: designate three days out

ORCP 39 C(6) differs from Federal Rule 30(b)(6) in a way worth planning around.

A party may name an organization as the deponent and "describe with reasonable particularity the matters on which examination is requested." Then:

the organization so named must provide notice of no fewer than 3 days before the scheduled deposition, absent good cause or agreement of the parties and the deponent, designating the name(s) of one or more officers, directors, managing agents, or other persons who consent to testify on its behalf and setting forth, for each person designated, the matters on which that person will testify.

Two obligations the federal rule does not impose: a deadline for the designation, and a matter-by- matter allocation where more than one witness is designated.

The rule adds that "a subpoena must advise a nonparty organization of its duty to make this designation," and that the persons designated "will testify as to matters known or reasonably available to the organization."

If you notice an entity deposition and hear nothing by day three, that is a rule violation, not a scheduling inconvenience.

Remote depositions

ORCP 39 C(7)(a): the court "may order, or approve a stipulation, that testimony be taken by remote means." Where it is taken by remote means under a court order, the order must designate the conditions of taking and the manner of recording.

And where testimony is taken remotely without an order or a stipulation made part of the record, "objections as to the taking of testimony by remote means, the manner of giving the oath or affirmation, and the manner of recording are waived unless objection thereto is made at the taking of the deposition."

The oath may be administered in the presence of the person administering it or by remote means, at the election of the party taking the deposition.

ORCP 39 C(7)(b) defines remote means as "any form of real-time electronic communication that permits all participants to hear and speak with each other simultaneously and allows official court reporting when requested."

And it affects who may swear the witness. ORCP 38 A(2): a deposition taken under Rule 39 C(7) "is taken within this state if either the deponent or the person administering the oath is located in this state."

Objections, and when you may refuse to answer

ORCP 39 D(1): examination and cross-examination "may proceed as permitted at the trial."

ORCP 39 D(3) governs objections, and it is stricter about conduct than most:

All objections made at the time of the examination must be noted on the record. A party or deponent must state objections concisely and in a non-argumentative and non-suggestive manner. Evidence will 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.

Three grounds, and no others. "Objection, form" is noted and the witness answers.

Written questions as an alternative — ORCP 39 D(4): in lieu of participating in an oral examination, a party may serve written questions on the party taking the deposition, who will propound them on the record.

Getting help mid-deposition

ORCP 39 E(1) is a live remedy rather than a post-hoc one:

At any time during the taking of a deposition, on 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 a 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 Rule 36 C.

Where the deponent is a non-party, the motion may go to the court where the action is pending or the court at the place of examination. If the order terminates the examination, "it will be resumed thereafter only on the order of the court in which the action is pending."

And "on demand of the moving party or deponent, the parties will … suspend the taking of the deposition for the time necessary to make a motion."

ORCP 39 E(2): the court may provide that assistance by remote means — which is what makes the provision practical rather than theoretical.

ORCP 39 E(3): Rule 46 A(4) governs the award of expenses on such a motion.

Reading and correcting the transcript

ORCP 39 F(1): where testimony is taken stenographically or recorded non-stenographically, and any party or the witness so requests at the time the deposition is taken, the recording or transcription is submitted to the witness for examination, changes and statement of correctness. With leave of court the request may be made at any time before trial.

Note the trigger: the request is made at the deposition. Under ORCP 39 F(3), "if no examination by the witness is requested, no statement by the witness as to the correctness … is required."

ORCP 39 F(2): changes the witness desires are entered on the transcription or stated in a writing accompanying the recording, "together with a statement of the reasons given by the witness for making them," and notice of the changes and reasons "must promptly be served on all parties by the party taking the deposition."

If the witness does not make the correctness statement within 30 days — or a shorter time the court orders — the party taking the deposition states the fact of waiver, incapacity, absence or refusal, "and the deposition may then be used as fully as though the statement had been made," unless on a motion to suppress under Rule 41 D the court finds the reasons require rejection.

Certification and filing

ORCP 39 G(1): a stenographic reporter certifies under oath on the transcript that the witness was duly sworn and the transcript is a true record. For a non-stenographic recording later transcribed, the transcriber certifies under oath that they heard the witness sworn on the recording and that the transcript is correct. And where a recording or transcription is used in the action or filed, the party taking the deposition, or their attorney, "must certify under oath that the recording … is a true, complete, and accurate recording … and that the recording has not been altered."

ORCP 39 G(2): the transcript or recording is filed with the court if requested by any party, enclosed in a sealed envelope directed to the clerk.

Perpetuation depositions: a separate track

Oregon keeps trial-preservation testimony in its own subsection, with its own notice period and its own gate.

A party wishing to perpetuate testimony for trial or hearing does so by serving a perpetuation deposition notice, which is subject to ORCP 39 C(1) through C(7) and must additionally state "a brief description of the subject areas of testimony of the witness" and "the manner of recording."

Any other party may object before the deposition, and objections are governed by the standards of Rule 36 C. If no objection is filed, or perpetuation is allowed, the testimony "is admissible at any subsequent trial or hearing in the action, subject to the Oregon Evidence Code."

At a hearing on an objection, the burden is on the party seeking perpetuation to show that:

(a) the witness may be unavailable as defined in ORS 40.465 (1)(d) or (1)(e) or ORS 45.250 (2)(a) through (2)(c); (b) it would be an undue hardship on the witness to appear at the trial or hearing; or (c) other good cause exists for allowing the perpetuation.

The timing: "Any perpetuation deposition must be taken not less than 7 days before the trial or hearing on not less than 14 days' notice." The court may allow a shorter period, before or during trial, on a showing of good cause.

And you can still take a discovery deposition first — the rule says so expressly, to the extent one is allowed by law.

Objections are use-it-or-lose-it. The perpetuation examination proceeds as under section D, "all objections to any testimony or evidence taken at the deposition must be made at the time and noted on the record," the court rules on them before the testimony is offered, and "any objections not made at the deposition will be deemed waived."

That is the opposite of ordinary discovery-deposition practice, where relevance and admissibility objections are preserved for trial. A perpetuation deposition is the trial testimony, so the objections have to be made there.

How Oregon compares

A short checklist

Taking one

1. Check whether you need leave — only a plaintiff deposing before the appearance period does, and two exceptions apply.
2. Attach the subpoena's document designation to the notice where a subpoena duces tecum is being used.
3. For a party's documents, use a Rule 43 request with the notice, and follow Rule 43's timing.
4. For an entity, describe the matters with reasonable particularity and expect the designation three days out — with each witness matched to their matters.
5. Get remote depositions on the record by order or stipulation, or objections about the method are waived at the deposition.
6. If you want trial testimony, use the perpetuation track — 14 days' notice, taken at least 7 days before trial, subject areas and recording method stated.

Defending one

1. Instruct not to answer only on the three ORCP 39 D(3) grounds. Everything else is answered subject to the objection.
2. Keep objections concise, non-argumentative and non-suggestive. The rule says so in terms.
3. If the examination turns abusive, move under ORCP 39 E — you can demand suspension while you do, and the court can hear it remotely.
4. Request transcript review at the deposition. Ask later and you need leave of court.
5. At a perpetuation deposition, make every objection on the record. They are waived otherwise.

Where these rules live

• ORCP 7 — Summons
• ORCP 36 — General Provisions Governing Discovery
• ORCP 38 — Persons Before Whom Depositions May Be Taken
• ORCP 39 — Depositions upon Oral Examination
• ORCP 40 — Depositions upon Written Questions
• ORCP 41 — Effect of Errors and Irregularities in Depositions
• ORCP 43 — Production of Documents and Things
• ORCP 45 — Requests for Admission
• ORCP 46 — Failure to Make Discovery; Sanctions
• ORCP 47 — Summary Judgment

The Oregon Judicial Department publishes court information at courts.oregon.gov. This page explains what the rules say. It isn't legal advice, and the Oregon Evidence Code provisions the perpetuation rule cross-references are outside what this site reproduces.