The Oregon motion to compel: list what you want at the top of the motion

Oregon's rule contains a formatting requirement that is easy to miss and easy to fail:

Any motion made under this subsection shall identify at the beginning of the motion the items that the moving party seeks to discover.

Not somewhere in the motion. At the beginning. A motion that argues first and specifies later does not comply.

The rule is also broader than most in what it reaches — expert reports and insurance agreements are named grounds in their own right.

What can be compelled

Or. R. Civ. P. 46 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 served under Rule 39 or Rule 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 production or inspection submitted under Rule 43 fails to produce or 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 identify 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 any protective order it would have been empowered to make on a motion made pursuant to Rule 36 C.

Two of these are unusual. Reports under Rule 44 — Oregon's medical and expert report provisions — have their own compel route. And insurance agreements are named expressly rather than being folded into a general document category, which mirrors Connecticut's treatment.

Note what is not in the list: interrogatories. Oregon restricts interrogatory practice in ways most states do not, so the compel grounds reflect the discovery devices Oregon actually uses.

Rule 46 A(3):

Evasive or incomplete answer. For purposes of this section, an evasive or incomplete answer is to be treated as a failure to answer.

Where to file

Rule 46 A(1):

(a) Parties. A motion for an order directed against a party may be made to the court in which the action is pending and, on matters relating to a deponent's failure to answer questions at a deposition, a motion may also be made to the circuit court for the county where the deponent is located.

(b) Non-parties. A motion for an order directed against a deponent who is not a party shall be made to the circuit court for the county where the non-party deponent is located.

Oregon measures by where the deponent is located, not where the deposition is being taken — a different test from most states, and one that can point to a different county.

The non-party rule is mandatory.

Fees are discretionary both ways

Rule 46 A(4):

Award of expenses of motion. If the motion is granted, the court may, after an opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both of them, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court may, after an opportunity for hearing, require the moving party or the attorney advising the motion, or both of them, to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

"May" in both directions — symmetric and discretionary, which lowers the stakes on both sides compared with the mandatory regimes in Louisiana, North Carolina or Virginia.

There is no conference certification requirement in ORCP 46.

Once an order is disobeyed

Rule 46 B(1) handles the deposition situation — sanctions by the court in the county where the deponent is located — and Rule 46 B(2) supplies the sanctions available from the court where the action is pending, on the familiar pattern: deemed-established facts, preclusion, striking pleadings, dismissal, default judgment and contempt.

Before you file

1. Confirm the discovery device. Oregon's grounds track its own rules, and interrogatory practice differs from most states — see Oregon discovery.
2. List the items you want at the very top of the motion. The rule requires it there.
3. Work out where the deponent is located, not where the deposition was noticed.
4. Quote Rule 46 A(3) where the response was evasive or incomplete.
5. Ask for fees, but do not count on them. They are discretionary in both directions.

How Oregon compares

A short checklist

1. Put the list of items at the beginning of the motion.
2. Check whether the target is a Rule 44 report or an insurance agreement — both are named grounds.
3. File against a non-party in the county where the deponent is located.
4. Complete or adjourn a deposition before applying.
5. Quote the evasive-answer provision where the response was thin.
6. Do not overreach — a denied motion can draw a protective order under Rule 36 C.
7. Expect discretion on fees, and give the court a reason to exercise it.

Where these rules live

• Or. R. Civ. P. 36 — General Provisions Governing Discovery
• Or. R. Civ. P. 43 — Production of Documents and Things
• Or. R. Civ. P. 44 — Physical and Mental Examination; Reports
• Or. R. Civ. P. 46 — Failure to Make Discovery; Sanctions

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.