5 Trial Lawyer • Summer 2023 you think the order should be structured. We cannot create documents It seems self-evident, but it bears repeating that the court cannot create discovery. If opposing counsel responds that they possess no documents or information responsive to a request, the court cannot order them to turn over what they assert doesn’t exist. Either modify the request to encompass documents adjacent to what was originally sought or, if you believe an opposing party is being disingenuous, present the court with something to support that position. Complaining about unsupported suspicions doesn’t provide the court with grounds for relief. If you iron it out, let us know Very often, parties resolve, in part or in total, discovery disputes after motions have been filed but before a scheduled hearing. If any portion of a discovery dispute has been resolved prior to a hearing, please, please, please let the court know in advance of the hearing. Knowing which specific portions are still in dispute and which are not allows the court to better focus and better prepare for argument on what’s still at issue. The need for expedited hearings Sometimes an expedited hearing on a discovery issue is needed. In order to get a matter heard in an expedited manner in Multnomah County, parties need to contact the assigned motion judge’s staff and schedule a quick 10-15 minute hearing (usually over the phone) to explain to the court why the motion must be handled in an expedited fashion. This is not meant to be a hearing on the merits of the motion. Only after the court hears the justification for expedited hearing and grants an expedited hearing, can the motion itself then be set before the motions judge in an expedited time frame. Parties cannot and should not assume the court will automatically grant a request for an expedited hearing, particularly if they have been sitting on a discovery issue for some time. An upcoming trial date does not suddenly make a long-standing discovery issue urgent to the point of automatically justifying an expedited hearing. Let the court know what you want Frequently, parties file discovery- related motions, responses and replies, and ask for a hearing to be set. After the hearing time and date are set, parties then file additional affirmative motions. It is incorrect to assume that the motions judge will hear all filed discovery motions at the date and time set for hearing on the first motion if parties only requested hearing dates/times for the first motion. If parties wish to address additional motions, they need to contact the assigned motions judge, give notice and ask additional time be added to the previously set motion hearing. Judges make concerted efforts to thoroughly review filed materials in advance of motions argument, and this cannot be done if there is inadequate notice of what the parties intend to address. Unless the court is specifically put on notice, most judges will not agree to hear subsequently filed motions for lack of notice, preparation and time on the docket. Really try to talk In 2018, U.S. District Court Judge Fred Biery authored a discovery-related order that directed as follows, “Make time for earspace, i.e. talking and listening as opposed to texting and emailing.” It seems so basic, but Judge Biery’s order bears repeating. Many practitioners have forgotten post-COVID that Uniform Trial Court Rule 5.010(2) states “[t]he 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.” In most courts, including Multnomah County, “conferring” means “to talk in person or on the phone . . . [g]enerally, sending a text message or email is not considered to be conferring.” Multnomah County Motions Judges Consensus Statement, p.4 (Aug. 2018), full text available at www.courts.oregon. gov. Often parties have never actually talked to one another about a discovery dispute prior to a hearing on the matter. Once everyone is together in court, parties frequently reach compromise positions on discovery matters with no intervention from the court. Please make a concerted effort to speak to opposing counsel about a discovery issue prior to setting a hearing. Even if no resolution is achieved, parties will better understand opposing counsel’s position, and the court will be less inclined to suspect gamesmanship where parties have tried more than just email or written correspondence to resolve disputes. Hon. Jenna Plank serves as a judge in Multnomah County Circuit Court. Her office is located at 1200 SW 1st Ave., Portland, OR 97204. She can be reached at jenna.r.plank@ojd.state.or.us or 971236-8661. 1 Order at 2-3, HouseCanary, Inc. v. Quicken Loans, Inc., No. SA-18-CV-0519-FB (W.D. Tex. Aug. 14, 2018). Often parties have never actually talked to one another about a discovery dispute prior to a hearing on the matter.
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