4 Trial Lawyer • Summer 2023 By Judge Jenna Plank Multnomah County Circuit Court Before taking the bench, I worked as a prosecutor. In that role, my world of discovery obligations was pretty well outlined in ORS 135.815 et. al., and the guiding principle that most anything favorable or of use to defense gets disclosed. I did not have clients, and I had the luxury of adopting a “when in doubt, turn it over” attitude. Such is not the case, of course, in the world of civil suits. Everyone is advocating on behalf of a client. All sides must do their best to unearth discovery supporting their position while simultaneously protecting their client from undue burden and embarrassment. Complaints, defenses and, ultimately, resolution are shaped by the ongoing discovery process. Given how much of civil practice is driven by discovery, it’s only natural the View From The Bench Hon. Jenna Plank Pay attention to discovery scope and process of discovery is frequently disputed. In speaking with several colleagues, discovery disputes also happen to be one of the most frequent sources of judicial frustration. For a variety of reasons, attorneys often make avoidable missteps when scheduling and litigating discovery disputes. Below are a few ideas to keep in mind when your next discovery dispute requires judicial intervention. Be clear, concise and selective Trial courts generally possess broad discretion when deciding discovery disputes. The standard of appellate review for a discovery decision is abuse of discretion, meaning a trial court’s decision on discovery matters is frequently affirmed. In short, it is imperative to make your best argument the first time around on a discovery issue. Be selective in your arguments. Exercise discretion on which issues you want to raise versus which ones you’re willing to let go. Judges have limited bandwidth, and it serves neither your client nor the court to shoot at every target in sight. Pick your strongest and most important arguments and focus on those. The court, in turn, will be more apt and able to follow your arguments to the result you desire. To that end, the most persuasive arguments are generally the clearest and most concise. Tell the court what the theory of the case is, how the discovery sought is relevant to that theory and why the information sought is reasonably calculated to lead to the discovery of admissible evidence. Simply stating you believe a category of discovery will be favorable to your position, without also being able to articulate how, is a recipe for disaster. If you are objecting to a discovery request or seeking a protective order, specifically tell the court why you are objecting or believe a protective order is warranted. Do not present an oral argument that consists of nothing more than just disagreeing with opposing counsel. Saying a protective order is warranted to protect a client from undue burden or embarrassment without being able to articulate why or how the client will suffer a particular undue burden or embarrassment is rarely a winning argument. If you are moving the court for a protective order, also be prepared to articulate exactly how
RkJQdWJsaXNoZXIy MTY1NDIzOQ==