Motion for Protective Order in Oregon

Background

“ORCP 36, which governs discovery, generally allows parties to inquire regarding any matter, not privileged, that is relevant; to any party's claims or defenses. The information sought, however, must be reasonably calculated to lead to the discovery of admissible evidence.” (See I. H. v. Ammi (2022) 370 Or. 406, 411-12.)

“On the motion of the party from whom discovery is sought, ORCP 36 C(1) permits the trial court to restrict or limit the terms and conditions of discovery, as justice requires[,] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” (See I. H. v. Ammi (2022) 370 Or. 406, 412.)

General Information for Complaints and Motions

“The Oregon Rules of Civil Procedure provide that any party who wishes to impose conditions on discovery may do so by means of a motion for a protective order under ORCP 36.” (See Lindell v. Kalugin (2013) 353 Or. 338, 350.)

“That rule, which expressly applies to physical and mental examinations, ORCP 36 A, provides that the party seeking an order that discovery may be had only on specified terms and conditions must establish good cause for those conditions.” (See id.)

Standard of Review and Burdens of Proof

“Whatever discovery may be appropriate is a matter within the discretion of the court.” (See Willamette Landing Apartments - 89, LLC v. Burnett (2016) 280 Or. App. 703, 719.)

Specifically, “the issuance and vacation of protective orders are matters of a trial court's discretion.” (See I. H. v. Ammi (2022) 370 Or. 406, 412.)

“We review the trial court's decision for an abuse of discretion.” (See Doe v. Denny's, Inc. (1997) 146 Or. App. 59, 67.)

“Although our review of the court's decision is for abuse of discretion, the court's discretion must be exercised in accordance with, and our review must necessarily take into account, the applicable legal principles governing the right to discovery.” (See Baker v. English (1995) 134 Or. App. 43, 46.)

Meet and Confer

“The court will deny any motion made pursuant to ORCP 36 through 46, unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the issues in dispute.” (See Nelson and Nelson (1992) 117 Or. App. 157, 160.)

“The moving party will file a certificate of compliance with the rule at some time prior to the time set for hearing on the motion. The certificate shall be sufficient if it states either that the parties conferred or contains facts showing good cause for not conferring." (See id.)

The Court’s Decisions

It is well settled that “under Rule 26(c), Fed.R.Civ.P., the party or person from whom discovery is sought must establish 'good cause' for any restriction on the use of discovery documents.” (See Wilson v. Piper Aircraft (1980) 46 Or. App. 795, 799.)

It is also well settled that “if the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.” (See Tracy v. Nooth (2012) 252 Or. App. 163, 169 n.9.)