|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2011|
By Timothy MB Ferrell
Every month the bar Bulletin lists a dozen or more names of applicants for admission under the bar’s reciprocity rules. I myself am a member of six bars and have litigated for most of my 20-year legal career. Like me, almost all of these applicants will be familiar with using interrogatories in their practice. Most will be surprised when they look for the Oregon rule governing interrogatories, only to find that the rule number has been “reserved for further expansion” (ORCP 42). As such, there may be room for interrogatories in the rules and the time may be right to allow them.
Recently, I had a case involving wrongful foreclosure. The main issue was whether or not the defendant trustee had looked at certain documents before recording a declaration that no such documents existed. The plaintiff homeowner thought that such documents did exist. The plaintiff believed that he was the victim of a robo signer in a foreclosure mill. If the homeowner was right, then the trustee’s declaration was invalid and the foreclosure was wrongful. In its response to a request for production, the trustee objected that the request was too indefinite and refused to provide any documents. An interrogatory asking what documents were reviewed would have helped the plaintiff describe the document with particularity, thereby avoiding the trustee’s objection and avoiding an expensive out-of-state deposition. Indeed, knowing what documents were or were not reviewed, may have been grounds for summary judgment.
The two Oregon Supreme Court cases on the subject do not forbid their use. State ex rel Union Pacific Railroad Company v. Crookham, 295 Or. 66 (1983); Stevens v. Czerniak, 336 OR 392 (2004). In fact, many Oregon state agencies allow their use. .See e.g., the Department of Revenue (ORS 305.195) and the Oregon Board of Dentistry (ORS 679.252(8). Significantly, interrogatories are allowed by Oregon statute after a judgment is entered. ORS 18.270.
The privileges and immunities clause prevents the state from passing a law that grants any citizen or class of citizens privileges or immunities which upon the same terms do not equally belong to all citizens. Oregon Constitution Art. 1 sec. 20. Just as the legislature cannot impose on this constitutional right, so a court cannot prevent one class of plaintiffs from obtaining discovery while allowing another to use it. For example, it would make no sense to allow a person with a judgment to use interrogatories, while preventing their use to obtain that same judgment in the first place. What possible reason could there be to distinguish between such parties? Without a rational basis, there is no valid constitutional reason to ban the use of interrogatories. As such, the Oregon Rules of Civil Procedure can not specifically forbid the use of interrogatories and no court should be able to prevent their use.
This interpretation comports with the general policy that the rules of procedure are to be interpreted to serve the just, speedy and inexpensive determination of every action. ORCP 1. Clearly, most state agencies agree that interrogatories are an important discovery tool and their enabling legislation allows them to take advantage of the device. The courts should also be allowed to grant leave to serve interrogatories where a party thinks that their use can further the purposes of the rules. ORCP 36. Failure to allow interrogatories would deny plaintiffs the use of a discovery device allowed by parties with judgments, and those working for state agencies and boards.
With so many new admittees from around the country, Oregon courts have to be prepared for these attorneys to request interrogatories. Indeed, out of state admittees may be compelled to seek leave if they are to competently represent their clients in light of their past practice. RCP 1.1. They may also have an ethical duty to move for leave to serve interrogatories, which should not be limited by ORCP 17 (c)(3) (the RCP allows an attorney to seek a changes to the law; ORCP 17 prevents sanctions for such efforts).
Because of the constitutional ramifications of denying such leave, however, the Council on Court Procedures should save attorneys and their clients the trouble and expense of moving for leave and consider making use of the reserved rule number. Now that the bar is open to so many lawyers from around the country, this may be a good time to amend the rules to allow Oregon litigants to make use of interrogatories.
ABOUT THE AUTHOR
Tim Farrell lives and works in Hood River. He is a member of the bars of Oregon, Washington, Ohio, District of Columbia, Guam and the Commonwealth of the Northern Mariana Islands. He has an LLM in admiralty and worked for many years in the western Pacific. He currently helps homeowners in foreclosure matters.
© 2011 Timothy MB Ferrell