Rule 5.140.Oregon Discovery in Foreign Proceedings

UTCR 5.140 is the mirror image of the commission rule. Here the case is pending somewhere else and the discovery has to happen in Oregon. Which paperwork you file turns on where the case sits.

For a proceeding pending in another state and covered by ORCP 38 C, the party submits a package to the court: the foreign subpoena; an original and two copies of a fully completed subpoena that complies with the Oregon Rules of Civil Procedure, including ORCP 55, and carries the names, addresses, email addresses, and telephone numbers of all attorneys of record and self-represented parties in the foreign proceeding; and a petition and request for issuance of a subpoena on substantially the published form, which repeats those assurances and states that the foreign subpoena was issued by a court of record of a state as ORCP 38 C defines that word.

When the case sits in a foreign jurisdiction that ORCP 38 C does not reach, the route is registration. The party files the writ, mandate, commission, letter rogatory, or order executed by the appropriate authority with an Oregon circuit court, and either the party or an active attorney licensee in good standing of the Oregon State Bar presents in person at ex parte the original or a certified copy, a petition, and an order to register the document on substantially the published form. If the court approves, the matter receives a circuit court case number and the Oregon attorney may issue appropriate process. If the foreign jurisdiction has no procedure for issuing such an instrument at all, the party instead presents a petition at ex parte to compel the witnesses to appear and testify, supported by an affidavit or declaration covering each item the rule lists: the jurisdiction, the court, the caption, the case number, the filing date, the absence of any process to compel a witness outside its boundary, the authorization sought, and the witnesses to be compelled.

One subject carries an extra filing. A party seeking a subpoena through the ORCP 38 C petition and request who is pursuing material related to gender-affirming treatment or reproductive health care services permitted under Oregon law must also submit a declaration under ORS 24.500. The declaration must establish that the subpoena relates to an out-of-state action of a kind the rule describes: an action in tort, contract, or statute brought by a patient or the patient's authorized legal representative for the patient's damages, or an action founded in contract brought or enforced by a party with a contractual relationship with the person the subpoena targets. In each case a similar claim must exist under Oregon law.