Oregon’s “Expert Privilege” Leaves Experts Unprotected at Trial by Dan Goldstein Oregon’s lack of expert discovery is unique and great fodder for cocktail party discussions. However, the problem with Oregon’s lack of expert discovery is the lack of defined protection at trial, leaving multiple traps for unwary practitioners. In this article, I assemble the various components of expert testimony in Oregon during the discovery phase and then at trial. I will also offer various recommendations. The Discovery Phase: Oregon’s non-existent “Expert Privilege” I have often heard opposing counsel incorrectly refer to Oregon’s expert privilege, but Oregon law contains no privilege. Instead, Oregon has a tacit prohibition against using discovery devices to obtain information from experts. The story itself is important to understanding this prohibition. Before 1979, Oregon did not have the centralized set of procedural rules we enjoy today. Instead, court procedures were found in case law and local rules. In 1977, the Legislature created The Council on Court Procedures, which then created the first draft comprehensive Oregon Rules of Civil Procedure (ORCP) in 1978 for promulgation to the 1979 Legislature. The new proposed ORCPs represented a significant expansion in discovery, including a provision allowing for expert discovery, which had not previously been allowed in Oregon. The initial proposed set of rules included a mandatory initial expert disclosure requirement under ORCP 36 B(4) mirroring the federal initial disclosure requirement at that time. The rule required production of a statement by the attorney the party intends to call an expert and to describe the subject matter on which the expert is expected to testify. Importantly, this initial disclosure rule ends with the following sentence: “Nothing contained in this subsection shall be deemed to be a limitation of the party’s right to obtain discovery of another party’s expert not covered under this rule, if otherwise authorized by law.” (Oregon Laws 1979, ch. 284 § 23). Thus, ORCP 36 B(4) would have allowed parties to direct all discovery devices toward experts, including RFPs, document subpoenas and deposition subpoenas. However, the 1979 Legislature ultimately disagreed, rejecting this provision and instead passing a bill to delete Rule 36 B(4) along with other modifications, but neglected to insert any other language that would expressly prohibit expert discovery. Therefore, as enacted, ORCP 36 A(1) defines a broad scope of discovery into “any matter, not privileged, which is relevant to the claim or defense,” followed by a specific set of allowable discovery devices, all of which were conspicuously silent as to experts. Taken literally, the scope of discovery appeared to be very broad, with no proscription against discovery from experts. The Oregon Supreme Court resolved this question 25 years later in Stevens v. Czerniak, 336 Or 392 (2004). In a unique ruling, the court confirmed the act of deleting ORCP 36 B(4) was effectively the same as enacting a prohibition against expert discovery. “(I)n deleting ORCP 36 B(4), the legislature made a policy choice to continue the practice of not authorizing expert discovery in civil actions in state courts.” Id. at 402. “(T)he legislature did not intend to authorize pretrial disclosure of either an expert’s name or the substance of the expert’s testimony.” Id. This silent prohibition on expert discovery, together with the work product doctrine, has been held to protect all expert materials prepared in anticipation of litigation, even those apparently obtained before retaining counsel. Union Pacific Ins. Co. v. Trachsel 83 Or App 401, 404 (1987). DAN GOLDSTEIN specializes in construction and real estate litigation, routinely representing owners, contractors and design professionals in claims regarding defect, delay, non-payment, non-disclosure, breach of contract, boundary disputes and easement disputes. He is a partner at Aldrich Goldstein, located at 621 SW Morrison Street, Suite 1050, Portland, OR 97205. He can be reached at [email protected] and 503-226-7045. See Oregon’s “Expert Privilege” Leaves Experts Unprotected at Trial p. 30 29 Trial Lawyer | Winter 2025
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