Rule 36.General Provisions Governing Discovery

Rule 36(A) opens with a closed list of discovery methods: depositions on oral examination or written questions; production of documents or things, or permission to enter land or other property for inspection; physical and mental examinations; and requests for admission. Written interrogatories — a set of questions one party mails to another to answer in writing, under oath — are not on that list, and nowhere else in the Oregon Rules of Civil Procedure does a party get to serve interrogatories on another party. That is a real departure from the federal rules and most states, which all include a dedicated interrogatories device. In an Oregon civil case, if you want facts from an opposing party, you get them through a deposition, a document request, an examination, or a request for admission — not through written interrogatories.

The scope of discovery is broad. A party may inquire into any matter that is not privileged and is relevant to any party’s claim or defense, including the existence, description, location, and condition of documents and tangible things, and the identity and location of people with relevant knowledge. Information does not have to be admissible at trial to be discoverable — it is enough that seeking it appears reasonably calculated to lead to admissible evidence.

Insurance coverage gets its own disclosure rule. On request from an adverse party, a party must disclose the existence and contents of any insurance agreement or policy that could cover a judgment in the case, and — a detail many states’ rules leave out — the existence of any coverage denial or reservation of rights, along with the policy language behind it. None of that becomes admissible at trial just because it was disclosed, and an application for insurance is not treated as part of the policy itself.

Materials a party or its representative prepared for litigation or trial get qualified protection. An opposing party can discover them only by showing a substantial need for the materials and an inability, without undue hardship, to get their substantial equivalent some other way — and even then, the court must still shield the attorney’s or representative’s own mental impressions, conclusions, opinions, and legal theories from disclosure. Separate from that showing, a party can always obtain a copy of a statement they themselves previously gave about the case, and a non-party can request a copy of their own prior statement as well; if that request is refused, the person can move for a court order.

When discovery threatens to become a burden rather than a tool, Rule 36(C) lets a party — or a non-party from whom discovery is sought — ask the court for a protective order on a showing of good cause. The court can bar the discovery outright, limit its timing or method, wall off certain subjects, keep a deposition sealed until the court says otherwise, protect trade secrets, or — to prevent hardship to the party or person discovery is sought from — order the party requesting discovery to pay that person’s reasonable expenses in attending the deposition or otherwise responding. If the court denies that motion instead, it can order the discovery to proceed on fair terms — and either way, the losing side on the motion risks paying the other’s reasonable expenses.