Motion for Sanctions for Failure to Comply with Discovery in Oregon

What Is a Motion for Sanctions for Failure to Comply with Discovery?


“ORCP 46 B(2)(c) provides that a trial court may impose various sanctions if a party fails to obey an order to provide or permit discovery.” (See Kosatka and Kosatka (1996) 137 Or. App. 379, 382.)

General Information for Complaints and Motions

“Under ORCP 46 D, if a party fails to cooperate in a properly scheduled deposition, a trial court may sanction the party by mak[ing] such orders in regard to the failure as are just[.]” (See Peeples v. Lampert (2008) 345 Or. 209, 215.)

“The text of ORCP 46 B(2)(c) does not expressly state whether the party seeking discovery must show prejudice to it or willful disobedience by the other party.” (See id.)

“That rule does, however, require the sanction imposed to be just and a prerequisite for imposition of a sanction is that a party fails to obey an order to provide or permit discovery." (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.)

“Under ORS 135.865, a trial court has broad discretion in imposing sanctions for a party's failure to comply with discovery.” (See State ex rel Glode v. Branford, (1998) 149 Or. App. 562, 567.)

“We review a trial court's ruling on a motion for sanctions for a discovery violation for abuse of discretion.” (See McFarlane v. Pony Express Courier Corp. (2002) 184 Or. App. 461, 467.)

“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 “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.)

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.)

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