the evidence available during the presentation of evidence at trial. Oregon’s lack of discovery and lack of any associated rule translates to a lack of trial guidance. Thus, in contrast to Oregon’s clear protection of experts in the discovery phase, Oregon provides little or no protection at trial. Lawyers and judges accept the concept that experts should bring their entire file to the witness stand, but this concept is not in any rule or case. Instead, it appears to be a continuation of the medical concept that the physician-patient privilege is waived the moment the physician takes the stand to testify, but this rule is unhelpful for nonmedical experts. Assuming a similar concept applies here — the prohibition against expert discovery ends at trial — the timing and scope of the file production remains unbounded by rule and, therefore, subject to judicial discretion. In most construction cases I have tried, the court ordered some form of advance production of the expert file, sufficient to allow the cross-examining party to review the file and prepare for cross without delaying the presentation of evidence. In my experience, most courts have ordered production 24 hours in advance of testimony. I heard one judge express the opinion that the court has the power to order production as much as two weeks in advance. This begs the question of when discovery ends and trial begins, at least for purposes of this issue. Regarding the scope of the file production at trial, OEC 705 states experts may “be required to disclose the underlying facts or data on cross-examination”, which appears on its face to be limited to information underpinning opinions expressed at trial. This would be consistent with federal rules, which contemplate production of the data and assumptions underpinning the testimony, but generally do not require production of other communications with counsel. FRCP 26(b)(4)(c). However, Oregon lacks any rule providing such boundaries. We have developed a long-standing practice among both bench and bar that experts should bring the entirety of their files with them to trial and give them to opposing counsel when called to testify. That being said, several open questions persist regarding categories of documents practitioners may not wish to be included within expert files produced at trial. The first category concerns mediation communications. Within the construction bar, and I suspect within many other practice areas as well, we rely on experts from the early part of the case, often well before suit is filed. We frequently rely on experts to prepare mediation-specific reports and participate in mediator-guided expert meetings. Such involvement inevitably creates additional emails, invoices, evaluations, notes, reports and other documents that exist only because of the mediation process. In Oregon, mediation communications “are not admissible as evidence in any subsequent adjudicatory proceeding and may not be disclosed by the parties or the mediator in any subsequent adjudicatory proceeding.” ORS 36.222(1). Mediation communications include “statements, memoranda, work products, documents and other materials … prepared specifically for use in mediation.” ORS 36.220(3). Therefore, practitioners should argue to exclude such materials from expert files. Surprisingly, I have had mixed results with this argument. Some judges readily agree the expert file should exclude mediation communications. Some judges order the file to be complete when shared but required advance conferral regarding any document to be used in cross so I would have the opportunity to object based upon ORS 36.222. Other judges have suggested counsel should identify well in advance any mediation communications so the argument does not delay presentation of evidence. The second open question for expert file production is the attorney client privilege. Experts are defined as “representative(s) of the lawyer” under OEC 503(2)(a)-(b), and therefore expert communications should be subject to the attorney-client privilege. The primary case on this issue is Brink v. Multnomah County, 224 Or 507 (1960). There, the county sought to condemn part of Plaintiffs’ land to widen a road. The Defendant See Oregon’s “Expert Privilege” p. 32 31 Trial Lawyer | Winter 2025
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