Pain and Suffering Damages

This article is an excerpt from Chapter 4 of Damages, by Lara Christine Johnson

For more information on this topic, check out the Damages book on BarBooks™. The print version of this book will be available later this year.

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  • 4.3    PROOF OF PAIN AND SUFFERING AS AN ELEMENT OF NONECONOMIC DAMAGES
  • 4.3-1 General Principles

To prove pain and suffering, the most significant general principle is that evidence must be presented showing that the plaintiff’s pain and suffering is causally related to the defendant’s conduct. See Crawford v. Seufert, 236 Or 369, 388 P2d 456 (1964). Sometimes that proof must be in the form of medical testimony; but sometimes the nature of the injury is such that laypersons or the jury can determine causation without the help of an expert.

In Ouma v. Skipton, 267 Or App 406, 341 P3d 124 (2014), the trial court struck the testimony of a chiropractor because he failed to testify that the injuries he treated were, to a reasonable degree of medical probability, caused by the collision. The trial court granted a motion for directed verdict on noneconomic damages on the ground that the plaintiff had failed to present sufficient evidence of causation. On appeal, the court noted that the record contained testimony by the plaintiff that he had fractured his tooth in the collision, evidence from which the jury could find causation without expert medical testimony. “Although we agree,” the court explained,

with the trial court’s conclusion that plaintiff necessarily would have to introduce expert medical testimony in order to establish causation with respect to the other injuries alleged in the complaint, we previously have held that defendant is not entitled to a directed verdict on an entire claim where there is sufficient evidence to permit a finding that the defendant’s conduct caused some part of the injuries alleged.

Ouma, 267 Or App at 409 (citing Wheeler v. LaViolette, 129 Or App 57, 61, 877 P2d 665 (1994)).

The severity of a plaintiff’s injuries will bear on the amount of proof required for noneconomic damages; “no severe physical injury can occur without involving mental distress.” Rostad v. Portland Ry., Light & Power Co., 101 Or 569, 582, 201 P 184 (1921); see also Smitson v. S. Pac. Co., 37 Or 74, 95, 60 P 907 (1900) (holding that damages for future pain and suffering of double amputee was not an erroneous jury instruction). Evidence of continued pain 18 months after an accident “establishes a probability that for sometime in the future plaintiff will suffer pain.” Odrlin v. Dugan, 137 Or 140, 142, 1 P2d 599 (1931); accord Nelson v. Tworoger, 256 Or 189, 192, 472 P2d 802 (1970).

If the plaintiff is seeking damages for permanent injuries, the existence of a scar two years after an accident is sufficient evidence of permanency. Kelley v. Light, 275 Or 241, 243, 550 P2d 427 (1976); Senkirik v. Royce, 192 Or 583, 593–94, 235 P2d 886 (1951).

  • 4.3-2 Proof from Medical Practitioners

Although expert medical testimony may not be required to prove future pain and suffering, it is a common practice that can be effective. See Hecker v. Union Cab Co., 134 Or 385, 392, 293 P 726 (1930); Kelley v. Light, 275 Or 241, 550 P2d 427 (1976). As a matter of trial tactics, the plaintiff’s counsel will likely present medical testimony to explain the future course of the injury and how it will affect the plaintiff’s life.

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  • 4.3-3 Other Types of Proof

The plaintiff’s testimony about his or her own condition is always competent evidence on the issue of past and future pain and suffering. Skeeters v. Skeeters, 237 Or 204, 231, 389 P2d 313, reh’g den, 237 Or 242, 391 P2d 386 (1964) (plaintiff’s testimony held sufficient evidence of his paralysis to go to the jury on the question of whether such paralysis actually existed); Frangos v. Edmunds, 179 Or 577, 589, 173 P2d 596 (1946). Nonmedical witnesses may testify about the plaintiff’s declarations of present pain or suffering or about the witness’s own observation of the plaintiff’s behavior while in pain, such as limited activity. Frangos, 179 Or at 593 (testimony of plaintiff’s wife); Weygandt v. Bartle, 88 Or 310, 319, 171 P 587 (1918). In Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 978 P2d 429, rev den, 329 Or 318 (1999), the court held that a patient was not required to present expert testimony on the issue of negligence or emotional distress when a surgeon allegedly left a clamp behind during open heart surgery, thus requiring another surgery. “[I]njured plaintiffs are entitled to claim damages for mental anguish, which plaintiffs may establish through their own or other lay testimony.” Fieux, 159 Or App at 641 (emphasis omitted).

In addition to testimony from the plaintiff and other lay witnesses, day-in-the-life videos may be helpful to communicate the effects of an injury on the plaintiff. See Arnold v. Burlington N. R. Co., 89 Or App 245, 248, 748 P2d 174, rev den, 305 Or 576 (1988) (over defendant’s objections, videotape admitted into evidence because it “communicated to the jury effectively, and perhaps better than words could do, what plaintiff’s life as a double amputee was like”).

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Lawyer Advertising on the Internet

Excerpted from The Ethical Oregon Lawyer (OSB Legal Pubs 2015), chapter 2 “Marketing, Advertising, and Solicitation” by David J. Elkanich.

§ 2.4   ADVERTISING

Lawyer advertising, marketing, and self-promotion have changed markedly over the years. Prior versions of this chapter may have focused almost exclusively on business cards, Yellow Page ads, letterheads, and solicitation; and although this chapter still addresses those topics, it is important to pause and reflect on the ever-evolving nature of lawyer advertising.

Lawyers have been turning to the Internet in increasing numbers as a means of self-promotion. Almost all law firms have their own website, and lawyers now may create blogs to provide general legal analysis, send out e-mail alerts on new cases, use Internet directories and referral services, and join group advertising to develop larger and more effective websites. Lawyers may study web traffic and become proficient in “SEO” (search-engine optimization), and may need to understand “Adwords” and “pay per click advertising.”    Other lawyers may join social media (such as Twitter or Facebook) to expand and develop their Internet presence. Over recent years, bar associations have begun responding to the proliferation of lawyer and law-firm websites and other forms of Internet activity by lawyers by modifying or clarifying the extent to which the rules governing lawyer advertising and solicitation extend to these activities.

For lawyers who are subject to regulation by Oregon, no reported decisions currently exist concerning the applicability of the rules governing advertising and solicitation to most types of Internet activity, such as lawyer websites, nor do the Oregon rules expressly regulate such activity to any substantial extent. However, the rules expressly address the related area of electronic-mail communications and real-time com­munications (see § 2.4-3; § 2.6-1 of The Ethical Oregon Lawyer), and at least one ethics opinion deals with whether (and when) lawyers may accept Internet-based referrals and how they can pay for that service. See, e.g., OSB Formal Ethics Op No 2007-180 (“Internet Advertising: Payment of Referral Fees”).

Note: However, numerous ethics opinions address how lawyers navigate an electronic practice, including the Internet and other electronically derived issues. See, e.g., OSB Formal Ethics Op No 2005-164 (“Communicating with Represented Persons: Contact Through Web Sites and the Internet”); OSB Formal Ethics Op No 2011-187 (rev 2015) (“Competency: Disclosure of Meta­data”); OSB Formal Ethics Op No 2011-188 (rev 2015) (“Informa­tion Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials”); OSB Formal Ethics Op No 2013-189 (“Accessing Information about Third Parties Through a Social Networking Website”).

An increasing number of jurisdictions have addressed Internet-related issues in reported decisions, and these decisions may provide insights into how the Oregon rules will be applied to Internet activity. For a description of efforts in other states, see ABA/BNA Lawyers’ Manual on Professional Conduct 81:551–81:574 (2014); 81:2012–81:2014 (2013) (supplemented periodically) (summarizing state regulatory activity in this area). The ABA Center for Professional Responsibility’s website lists resources concerning technology and marketing. See <www.abanet.org/ cpr>.

For a discussion of how the usual principles governing lawyer advertising and solicitation will or should work as applied to the Internet, see Louise L. Hill, Change Is In the Air: Lawyer Advertising and the Internet, 36 U Richmond L Rev 21 (2002); Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Dispa­rate Standards, 75 Wash L Rev 785 (2000); J. Clayton Athey, The Ethics of Attorney Web Sites: Updating the Model Rules to Better Deal with Emerging Technologies, 13 Geo J Legal Ethics 499 (2000); and Peter R. Jarvis & Bradley F. Tellam, Competence and Confidentiality in the Context of Cellular Telephone, Cordless Telephone, and E-Mail Com­munications, 33 Willamette L Rev 467 (1997) (addressing limits placed on communications by rules governing advertising and solicita­tion).

Lawyers disseminating information via the Internet should take account of the multijurisdictional character of the dissemination. Information included on an Oregon lawyer’s website will be dissemi­nated in other jurisdictions. Given the myriad restrictions placed on lawyer advertising by state regulators, it would be at least impractical to suggest that lawyer advertisements on the Internet must comply with each state’s regulatory scheme. However, the inherent multijurisdictional nature of Internet communications has led some commentators to favor replacing the current state-by-state approach to the regulation of lawyer self-promotion with a national standard. See, e.g., William E. Hornsby, Jr., Ad Rules Infinitum: The Need for Alternatives to State-Based Ethics Governing Legal Services Marketing, 36 U Richmond L Rev 49 (2002). Unless and until a national approach is adopted, lawyers must determine which states’ rules to follow in communicating through the Internet. For Oregon lawyers, Oregon’s choice-of-law provision provides some assistance in making this determination. See § 2.7.

Practice Tip: Although the law in this area is not well-developed, the existing decisional law from other jurisdictions indicates that lawyers’ dissemination of information via the Inter­net is likely to be treated as advertising and solicitation. See, e.g., California Formal Op Interim No 12-0006 (2015) (a blog that is part of a lawyer’s professional website, or that otherwise expresses the lawyer’s availability for professional employment, is subject to the rules regulating lawyer advertising). See also New York State Bar Ethics Op 967 (2013) (a blog written by a lawyer, “the primary purpose of which is not retention of the attorney,” is not subject to the advertising rules).

Internet communications can take a number of forms, at least some of which do not fit comfortably into the traditional advertising and solicitation paradigm. See, for example, California Formal Op No 2012-186, which discusses whether social-media communications (such as through Facebook or Twitter) are lawyer advertising. Lawyers using the Internet should at the very least assume that the basic requirement that information be truthful and nonmisleading will apply to Internet communications. These restrictions should be considered with respect not only to the content of lawyers’ websites, but also to their domain names.

Caveat: Lawyers who advertise in Oregon should be aware that the Oregon Rules of Professional Conduct are not the sole legal constraints on lawyer advertising. Oregon statutes prohibiting unfair trade practices also apply. See ORS 646.605–646.656; ORS 646.881–646.885.

Sales of Manufactured-Dwelling Parks in Oregon

This article is excerpted from Oregon Real Estate Deskbook, chapter 48 Manufactured and Mobile Homes, by Phillip C. Querin and William “Bill” D. Miner.

The complete chapter will soon be available on the BarBooks™ online library. Look for the preorder offer for the entire Oregon Real Estate Deskbook coming soon.

§ 48.3-3               Sales of Manufactured-Dwelling Parks

House Bill 4038 (2014) substantially modified the provisions that establish the process for tenants of manufactured-housing parks to purchase the parks. Park owners must now give written notice of their interest in selling the community (a) before commencing marketing to the general public, or (b) when the owner receives an offer that it intends to consider, whichever occurs first. Or Laws 2014, ch 89, § 1(1).

The written notice must be given to: (1) all tenants of the manufactured-dwelling park; or (2) the tenant committee, if one exists and (a) was formed for purposes that include the purchase of the park , and (b) with which the owner met within the 12-month period before delivery of the notice. Additionally, the written notice must be given to the “Office of Manufactured-Dwelling Park Community Relations of the Housing and Community Services Department.” Or Laws 2014, ch 89, § 1(2)–(3).

The notice must inform the residents that:

               (a)          The owner is considering selling the park.

               (b)          The tenants, through a tenants committee, have an opportunity to compete to purchase the park.

               (c)           In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form or identify a single tenants committee for the purpose of purchasing the park and notify the owner in writing of:

               (A)          The tenants’ interest in competing to purchase the park; and

               (B)          The name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

               (d)          The representative of the tenants committee may request financial information described in section 2 (2) of this 2014 Act from the owner within the 10-day period.

               (e)          Information about purchasing a manufactured-dwelling park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Or Laws 2014, ch 89, § 1(4).

Within 10 days after delivery of the notice, if residents are interested in purchasing, they must notify the park owner in writing of (1) their interest in purchasing the park, (2) the identification of the tenants committee, and (3) the name and contact information of a tenant representative from the tenants committee with whom the park owner may communicate about the purchase. Or Laws 2014, ch 89, § 2(1).

During the 10-day period after delivery of the notice, the tenant representative may make a written request for “the kind of financial information that a seller of a park would customarily provide to a prospective purchaser.” Or Laws 2014, ch 89, § 2(2). The park owner is required to provide the following information within seven days after the tenant’s request for information: (1) the “asking price, if any, for the park”; (2) the “total income collected from the park and related profit centers” during the “12-month period immediately before delivery of the notice required by [Or Laws 2014, ch 89, § 2(1)]”; (3) the cost of all park utilities during the same 12-month period; (4) the annual cost of park insurance policies per the most recent premium period; (5) the number of park-owned homes; and (6) the number of vacant spaces and homes in the park. Or Laws 2014, ch 89, § 2(3).

NOTE: The park owner may place certain restrictions on the required information, such as making all or part of the information confidential. See Or Laws 2014, ch 89, § 2(4).

If the tenants choose to continue, within 15 days of delivery of the owner’s financial information, they must (1) form a corporate entity legally capable of consummating the purchase, or associate with a nonprofit capable of doing so; (2) submit a written offer of purchase; and (3) provide a copy of the articles of incorporation or other evidence of legal capacity to purchase the park. Or Laws 2014, ch 89, § 2(5).

The park owner is not obligated to continue negotiating with residents if they fail to perform within any of the required time periods, or if they violate any confidentiality agreement. Or Laws 2014, ch 89, § 2(6)(c).

Finally, the following general principles apply to the purchasing process:

(1)          All parties must act in a “commercially reasonable manner,” (Or Laws 2014, ch 89, § 3(1));

(2)          Minor errors in providing notice to the tenants or in providing financial information will not prevent the owner from selling to a third party and will not make the owner liable to the tenants, (Or Laws 2014, ch 89, § 3(3));

(3)          The park owner may seek out and negotiate with other potential purchasers while also negotiation with the tenants, (Or Laws 2014, ch 89, § 3(4));

(4)          If the park owner fails to comply with the rules “in a substantial way that prevents the tenants from competing to purchase the park,” the tenants may obtain injunctive relief to prevent a sale to a third-party purchaser (only if the owner has not already filed an affidavit of compliance under ORS 90.830), or recover the greater of actual damages or twice the monthly rent from the owner for each tenant, (Or Laws 2014, ch 89, § 3(5)); and

(5)          If a tenant violates the confidentiality agreement in a substantial way, the park owner may recover actual damages from the tenant, (Or Laws 2014, ch 89, § 3(6)).

Park owners are, however, excluded from complying with the above requirements in the case of certain transfers described in Or Laws 2014, ch 89, § 4.

Attorney Fees Provide Fair Access to Courts

Statutory and contractual rules for the award of attorney fees are important provisions that help ensure that parties have fair access to the judicial system. To help lawyers navigate the many rules and regulations related to attorney fees, Legal Publications will be publishing a companion set: Oregon Attorney Fee Codebook and Oregon Attorney Fee Compilation.

This article includes an excerpt of one of the chapters that is excerpted in the Compilation along with the statutes cited in the excerpt as they will appear in the Codebook. For a more thorough discussion of the topic and to read cross-referenced sections, you can check out Oregon Civil Pleading and Practice on BarBooks™ or pre-order the Codebook and Compilation.

Compilation excerpt:

Oregon Civil Pleading and Practice, Chapter 43. Attorney Fees, Cost Bills, and ORCP 17 Sanctions, by Timothy S. DeJong and Keil M. Mueller.

§43.1    ATTORNEY FEES

§43.1-1 Availability of Attorney Fees

In Oregon, the general rule is that attorney fees are available only when expressly authorized by contract or statute. Swett v. Bradbury, 335 Or 378, 381, 67 P3d 391 (2003). But see §43.1-1(f) regarding a court’s “inherent power” to award attorney fees in certain cases.

When preparing a pleading, the lawyer should determine whether any basis for claiming attorney fees exists under contract or in the substantive law. For example, attorney fees are available in civil rights actions under 42 USC §1983 (see 42 USC §1988(b)), unlawful trade practices claims under ORS 646.638(3), and certain landlord-tenant actions under ORS 90.510(8). ORS chapter 20 also provides for the availability of attorney fees in a variety of types of actions.

Some statutes require an award of attorney fees to the prevailing party in certain types of actions. See §43.1-1(a); see also §43.1-2 regarding identifying the prevailing party. Other statutes give the court discretion to award attorney fees in some kinds of actions. See §43.1-1(b). Attorney fees are also recoverable in actions based on a contract that specifically provides for them. See §43.1-1(e).

Practice Tip: The failure to assert a right to attorney fees at the earliest possibility may prevent a party from recovering attorney fees. See §43.1-3(a). Therefore, it is crucial for the lawyer to determine whether attorney fees are available at the outset of every case.

Attorney fees are also allowed when the court finds that the opposing party had “no objectively reasonable basis” for asserting a claim, defense, or ground for appeal. ORS 20.105(1); see §43.1-1(c).

Also, the Uniform Trial Court Rules include provisions relating to attorney fees. See §43.1-1(d).

Note: Pro se litigants typically may not recover attorney fees. Pendell v. Department of Revenue, 315 Or 608, 616, 847 P2d 846 (1993); Parquit Corp. v. Ross, 273 Or 900, 902, 543 P2d 1070 (1975). However, an attorney who represents him- or herself may recover “the reasonable value of the legal services that [the attorney] performed on [his or her] own behalf.” Colby v. Gunson, 349 Or 1, 9, 238 P3d 374 (2010) (interpreting ORS 192.490(3), which provides that any person who prevails in a suit seeking the right to inspect or to receive a copy of a public record is entitled to reasonable attorney fees).

Note: ORS 20.125 provides that the court “shall” assess attorney fees and costs against a lawyer whose “deliberate misconduct” causes a mistrial.  

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Codebook excerpt:

Note: All statutes updated through 2014 legislative session.

Ch. 20 Attorney Fees, Costs and Disbursements
PROCEDURE IN CIVIL PROCEEDINGS
ATTORNEY FEES; EXPERT WITNESS FEES

20.105 Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis. (1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(2) All attorney fees paid to any agency of the state under this section shall be deposited to the credit of the agency’s appropriation or cash account from which the costs and expenses of the proceeding were paid or incurred. If the agency obtained an Emergency Board allocation to pay costs and expenses of the proceeding, to that extent the attorney fees shall be deposited in the General Fund available for general governmental expenses. [1983 c.763 §57; 1995 c.618 §2]

OTHER COSTS

      20.125 Assessment of costs and attorney fees against attorney causing mistrial. In the case of a mistrial in a civil or criminal action, if the court determines that the mistrial was caused by the deliberate misconduct of an attorney, the court, upon motion by the opposing party or upon motion of the court, shall assess against the attorney causing the mistrial costs and disbursements, as defined in ORCP 68, and reasonable attorney fees incurred by the opposing party as a result of the misconduct. [1985 c.556 §1; 1995 c.618 §3]

Chapter 90 — Residential Landlord and Tenant
MANUFACTURED DWELLING AND FLOATING HOME SPACES

      90.510 Statement of policy; rental agreement; rules and regulations; remedies. . . . 
(8) Intentional and deliberate failure of the landlord to comply with subsections (1) to (3) of this section is cause for suit or action to remedy the violation or to recover actual damages. The prevailing party is entitled to reasonable attorney fees and court costs.

Chapter 192 — Records; Public Reports and Meetings
INSPECTION OF PUBLIC RECORDS

192.490 Court authority in reviewing action denying right to inspect public records; docketing; costs and attorney fees. . .
      (3) If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal. If the person prevails in part, the court may in its discretion award the person costs and disbursements and reasonable attorney fees at trial and on appeal, or an appropriate portion thereof. If the state agency failed to comply with the Attorney General’s order in full and did not issue a notice of intention to institute proceedings pursuant to ORS 192.450 (2) within seven days after issuance of the order, or did not institute the proceedings within seven days after issuance of the notice, the petitioner shall be awarded costs of suit at the trial level and reasonable attorney fees regardless of which party instituted the suit and regardless of which party prevailed therein. [1973 c.794 §9; 1975 c.308 §3; 1981 c.897 §40]

Chapter 646 — Trade Practices and Antitrust Regulation
UNLAWFUL TRADE PRACTICES

      646.638 Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions. . .
(3) The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist.

Time Limitations under the Oregon Family Abuse Protection Act

Oregon Statutory Time Limitations is now available on the BarBooks™ online library. This article is an excerpt from the Family and Juvenile chapter of that book. It is not a comprehensive coverage of the topic of the Family Abuse Protection Act, but is rather limited to a discussion of time limitations provided for under that statute. For more information about time limitations in family and juvenile matters, see the complete chapter on BarBooks™.

Authors of the chapter from which this article is excerpted are Jessica Flint, Nigel Vanderford, Alex Sutton, Mark Johnson Roberts, and Craig Cowley.

Sec. 4.1   FAMILY ABUSE PROTECTION ACT

“Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 to 107.735 [the Family Abuse Prevention Act], if the person is in imminent danger of further abuse from the abuser.” ORS 107.710(1). Time during which the respondent is incarcerated or has a principal residence more than 100 miles from the petitioner’s principal residence is not counted as part of the 180-day period. ORS 107.710(6).

Sec. 4.1A Hearing and Duration

When a person files a Family Abuse Prevention Act petition, the court must hold an ex parte hearing on the day the petition is filed or on the
following judicial day. Upon the request of the petitioner and the requisite showing of abuse, danger, and threat, the court must issue an order restraining the respondent and including various specific provisions. ORS 107.718(1). The order is effective for one year or until withdrawn, amended, or superseded, whichever is sooner. ORS 107.718(3).

Sec. 4.1B  Respondent’s Request for a Hearing

Within 30 days after a restraining order is served, the respondent may request a hearing. If the respondent fails to request a hearing within that time, the order is confirmed by operation of law. ORS 107.718(10)(a), (11).

Sec. 4.1C  Hearing Date

If the respondent requests a hearing under ORS 107.718(10), the court must hold the hearing within 21 days after the request. However, if the respondent contests an order granting temporary child custody to the petitioner, the court must hold the hearing within five days after the request. ORS 107.716(1).

Sec. 4.1D  Child Custody Hearing

If the court determines under ORS 107.718(2) that exceptional circumstances exist that affect custody of a child, the court must hold a hearing within 14 days of issuing the restraining order. ORS 107.716(2)(a). The respondent may request an earlier hearing to be held within five days after the request. ORS 107.716(2)(b). When the court schedules a hearing under ORS 107.716(2), the respondent may not request a hearing under ORS 107.718(10). ORS 107.716(2)(c).

Sec. 4.1E  Extension of Time

If service of notice of a hearing under ORS 107.718(2) or (10) is inadequate to provide a party with sufficient notice, the court may extend the date of the hearing up to five days so that the party may seek representation. ORS 107.716(4)(a). If one party is represented by an attorney at such a hearing, the court may extend the date of the hearing up to five days at the other party’s request so the other party may seek representation. ORS 107.716(4)(b).

Sec. 4.1F  Renewal of Order

If the court renews an order, the respondent may request a hearing within 30 days after being served. The court must hold a hearing within 21 days after the respondent’s request. ORS 107.725(4).

Electronically Stored Information (ESI) and Litigation

This article is an excerpt from Oregon Civil Pleading and Practice, chapter 30, E-Discovery. For more information on this topic, go to the BarBooks™ online library or purchase a hard copy at a discount during our Summer Sale.

By Mark A. Friel

  INTRODUCTION

This chapter discusses key aspects of electronically stored information (ESI) in the context of civil discovery in Oregon courts. ESI generally refers to any information created or used in a digital environment, or stored on digital media. The Federal Rules of Civil Procedure were first amended in December 2006 to specifically address the discovery of ESI. The Oregon Council on Court Procedures has promulgated an amendment to ORCP 43, which took effect on January 1, 2012, to include “electronically stored information” within the definition of documents, and to include the following new provision (ORCP 43 E):

E Electronically Stored Information. A request for electronically stored information may specify the form in which the information is to be produced by the responding party but, if no such specification is made, the responding party must produce the information in either the form in which it is ordinarily maintained or in a reasonably useful form.

Reported decisions under Oregon state law are practically nonexistent with respect to ESI, and there is very little guidance for state courts apart from the more developed case law under the Federal Rules of Civil Procedure. For example, see Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006) (noting the lack of guidance relating to ESI under state law, and making frequent references throughout the publication to the federal rules and federal case law) (available at <http://www.ncsc.org/Topics/Civil/Civil-Procedure/Resource-Guide.aspx>).

Relying mostly on developments under federal law, this chapter explains some of the basics of ESI, why it is different from traditional forms of discovery, how to effectively manage the process of ESI preservation and production, and the sanctions the courts use to deal with the mishandling of ESI. The final section (§30.6) offers further reading in this rapidly evolving area.

   BASICS OF ELECTRONICALLY STORED INFORMATION (ESI)

Sources of ESI

In Zubulake v. UBS Warburg LLC, 217 FRD 309 (SDNY 2003), in the first of a series of famous opinions on electronic discovery, the court explained that

[f]ive categories of data, listed in order from most accessible to least accessible, are described in the literature on electronic data storage:

1.     Active, online data: “On-line storage is generally provided by magnetic disk. It is used in the very active stages of an electronic records [sic] life—when it is being created or received and processed, as well as when the access frequency is high and the required speed of access is very fast, i.e., milliseconds.” Examples of online data include hard drives.

2.     Near-line data: “This typically consists of a robotic storage device (robotic library) that houses removable media, uses robotic arms to access the media, and uses multiple read/write devices to store and retrieve records. Access speeds can range from as low as milliseconds if the media is already in a read device, up to 10–30 seconds for optical disk technology, and between 20–120 seconds for sequentially searched media, such as magnetic tape.” Examples include optical disks.

3.     Offline storage/archives: “This is removable optical disk or magnetic tape media, which can be labeled and stored in a shelf or rack. Off-line storage of electronic records is traditionally used for making disaster copies of records and also for records considered ‘archival’ in that their likelihood of retrieval is minimal. Accessibility to off-line media involves manual intervention and is much slower than on-line or near-line storage. Access speed may be minutes, hours, or even days, depending on the access-effectiveness of the storage facility.” The principled difference between nearline data and offline data is that offline data lacks “the coordinated control of an intelligent disk subsystem,” and is, in the lingo, JBOD (“Just a Bunch Of Disks”).

4.     Backup tapes: “A device, like a tape recorder, that reads data from and writes it onto a tape. Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably . . . The disadvantage of tape drives is that they are sequential-access devices, which means that to read any particular block of data, you need to read all the preceding blocks.” As a result, “the data on a backup tape are not organized for retrieval of individual documents or files [because] . . . the organization of the data mirrors the computer’s structure, not the human records management structure.” Backup tapes also typically employ some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression.

5.     Erased, fragmented or damaged data: “When a file is first created and saved, it is laid down on the [storage media] in contiguous clusters . . . As files are erased, their clusters are made available again as free space. Eventually, some newly created files become larger than the remaining contiguous free space. These files are then broken up and randomly placed throughout the disk.” Such broken-up files are said to be “fragmented,” and along with damaged and erased data can only be accessed after significant processing.

Zubulake, 217 FRD at 318–319 (footnotes and internal citations omitted). Of these five categories of electronically stored information (ESI), “the first three categories are typically identified as accessible, and the latter two as inaccessible.” Zubulake, 217 FRD at 319–320. The distinction the court in Zubulake drew between “accessible” and “inaccessible” ESI is, as explained in §30.4-5, relevant to a party’s obligations under the discovery rules.

Even within the various categories of accessible and inaccessible data, ESI includes not only that information that the user created intentionally (such as the text of a word processing file), but also any information created by the device on which the file is created, used, or stored (such as the date the file was created, the file’s author, the identity of anyone who may have edited the file, and a history of edits made to the file). This “metadata” is also a form of ESI and potentially subject to discovery. See, e.g.,
Romero v. Allstate Ins. Co., 271 FRD 96, 103 (ED Pa 2010) (“‘the producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable'” (quoting Ford Motor Co. v. Edgewood Props., 257 FRD 418, 425 (DNJ 2009))).

Difficulties of Handling ESI

Electronically stored information (ESI) is unlike traditional documents. It does not reside in a drawer, in a filing cabinet, or on a shelf in a warehouse. It cannot be photocopied and simply handed over to another party in response to discovery requests. Perhaps most importantly, it is much easier to lose, alter, or destroy ESI than traditional documents. A simple keystroke could overwrite, alter, or destroy vast quantities of information in a matter of seconds.

It is because of the ease with which ESI can be lost, altered, or destroyed that the 2006 amendments to FRCP 37 added a new section providing:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

FRCP 37(e); see also FRCP 37(e), 2006 Advisory Committee notes (“The ‘routine operation’ of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents.”). FRCP 37(e) is not an automatic out for parties who have allowed relevant, accessible ESI to be altered, overwritten, or otherwise lost. In its commentary on the new provision, the Advisory Committee explained:

Rule 37[(e)] applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37[(e)] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

FRCP 37(e), 2006 Advisory Committee notes (former FRCP 37(f)); see also
Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 FRD 139, 146 (D DC 2007) (“Rule [37(e)] does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation”).