(1) Within this state, depositions shall be preceded by an oath or affirmation administered to the deponent by an officer authorized to administer oaths by the laws of this state or by a person specially appointed by the court in which the action is pending. A person so appointed has the power to administer oaths for the purpose of the deposition.
(2) For purposes of this rule, a deposition taken pursuant to Rule 39C(7) is taken within this state if either the deponent or the person administering the oath is located in this state.
B. OUTSIDE THE STATE Within another state, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken:
(1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States;
(2) before a person appointed or commissioned by the court in which the action is pending, and such a person shall have the power by virtue of such person's appointment or commission to administer any necessary oath and take testimony; or
(3) pursuant to a letter rogatory. A commission or letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in (here name the state, territory, or country)." Evidence obtained in a foreign country in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
C. FOREIGN DEPOSITIONS AND SUBPOENAS
(1) Definitions. For the purpose of this section:
(a) "Foreign subpoena" means a subpoena issued under authority of a court of record of any state other than Oregon.
(b) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(2) Issuance of subpoena.
(a) To request issuance of a subpoena under this section, a party or attorney shall submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state.
(b) When a party or attorney submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's procedure and requirements, shall assign a case number and promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed. If a party to an out-of- state proceeding retains an attorney licensed to practice in this state, that attorney may assist the clerk in drafting the subpoena.
(c) A subpoena under this subsection shall:
(i) Conform to the requirements of these Oregon Rules of Civil Procedure, including Rule 55, and conform substantially to the form provided in Rule 55A(1) but may otherwise incorporate the terms used in the foreign subpoena as long as those terms conform to these rules; and
(ii) Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(3) Service of subpoena. A subpoena issued by a clerk of court under subsection (2) of this section shall be served in compliance with Rule 55.
(4) Effects of request for subpoena. A request for issuance of a subpoena under this section does not constitute an appearance in the court. A request does allow the court to impose sanctions for any action in connection with the subpoena that is a violation of applicable law.
(5) Motions. A motion to the court, or a response thereto, for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court pursuant to this section is an appearance before the court and shall comply with the rules and statutes of this state. The motion shall be submitted to the court in the county in which discovery is to be conducted.
(6) Uniformity of application and construction. In applying and construing this section, consideration shall be given to the need to promote the uniformity of the law with respect to its subject matter among states that enact it.
[CCP 12/2/78; amended by 1979 c.284 § 24; § A amended by CCP 12/12/92; §§ B and C amended by CCP 12/11/10 eff. 1/1/12; § C amended by 2013 c.1 § 2 eff. 1/1/2014; §§ B, C amended by CCP 12/8/18 eff. 1/1/20.]
Every deposition needs someone with legal authority to put the witness under oath, and Rule 38 supplies that authority. Inside Oregon, that authority belongs to anyone the state already allows to administer oaths, or to a person the court specially appoints just for that deposition. A deposition taken by remote means under Rule 39 still counts as taken within Oregon as long as either the witness or the person administering the oath is physically located here. Outside Oregon, the rule offers three routes: before a person authorized to administer oaths where the deposition takes place, before a person the Oregon court appoints or commissions, or under a formal letter rogatory addressed to the authorities of the other state or country. Getting a commission or a letter rogatory doesn’t require first showing that one of the other routes would be impractical, and evidence gathered abroad in response to a letter rogatory isn’t automatically thrown out just because it doesn’t look like a standard Oregon deposition transcript.
Section C addresses the reverse situation: someone suing in another state who needs to depose a witness or gather documents located in Oregon. Rather than asking an Oregon court to issue a subpoena from scratch, the out-of-state litigant submits the foreign subpoena to the clerk of court in the Oregon county where the discovery will happen. The clerk opens a case number and issues an Oregon subpoena that can borrow language from the foreign one, so long as it still follows Oregon’s own subpoena rules and lists contact information for the lawyers and any unrepresented parties involved. Submitting the subpoena for issuance isn’t treated as an appearance before the Oregon court, but filing a motion to enforce, quash, or modify that subpoena is, and that motion goes to the court in the county where the discovery is happening.