Discovery Process

In any civil matter including a family law matter, each side is entitled to ask for and to receive documents and information from the other side. This process is called "discovery." The most common forms of discovery are depositions and requests for production.

Depositions. A deposition occurs when the attorney for one side interrogates the other party or else when an attorney interrogates a witness. The interrogation is conducted under oath. The deposition typically occurs in the office of one of the attorneys. All attorneys are present. Usually, a court reporter is present to record the interrogation. Sometimes, a tape recorder is used.

Requests For Production. Requests for production usually occur in one of two forms: a statutory request and a Rule 43 request.

A statutory request is done pursuant to ORS 107.088 and .089. The text of ORS 107.089 is set out in full at the end of this page. This statute lists ten categories of information that you must provide if requested. If you are the party making the request, then you also must produce the same information.

A Rule 43 Requests is governed by Rule 43 of the Oregon Rules of Civil Procedure. Under this rule, any party may ask the other party to produce any document that is relevant to any issue, including documents that may lead to relevant evidence. This is a very broad rule, and nearly every financial document of a party falls under it. Requests for Production under Rule 43 can be long, onerous, and time consuming to deal with.

Statutory requests and Rule 43 requests are made in nearly every dissolution, including the cases that ultimately settle. Indeed, the information obtained by Requests For Production often lead to settlement of cases. A party is required to comply with requests for production of documents, regardless of whether the request "makes any sense." It is not useful to ask, "Why does the other attorney ask for that?" The answer is, "It is does not matter. If requested, it must be given." If discovery is not promptly produced when requested, the other party may ask for and receive attorney fees sanctions against you. Delay in hearings also could result.

TEXT OF ORS 107.089

Following is the Text of ORS 107.089:

107.089 Documents parties in suit must furnish to each other under certain circumstances; effect of failure to furnish. (1) If served with a copy of this section as provided in ORS 107.088, each party in a suit for legal separation or for dissolution shall provide to the other party copies of the following documents in their possession or control:

(a) All federal and state income tax returns filed by either party for the last three calendar years;

(b) If income tax returns for the last calendar year have not been filed, all W 2 statements, year end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year;

(d) All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years;

(e) All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest;

(f) All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due;

(g) Certificates of title or registration of all automobiles, motor vehicles, boats or other personal property registered in either party's name or in which either party has any interest;

(h) Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest;

(i) The most recent statement describing any retirement plan, IRA pension plan, profit sharing plan, stock option plan or deferred compensation plan in which either party has any interest; and

(j) All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed.

(2)(a) Except as otherwise provided in paragraph (b) of this subsection, the party shall provide the information listed in sub section (1) of this section to the other party no later than 30 days after service of a copy of this section.

(b) If a support hearing is pending fewer than 30 days after service of a copy of this section on either party, the party upon whom a copy of this section is served shall provide the information listed in subsection (1)(a) to (d) of this section no later than three judicial days before the hearing.

(3)(a) If a party does not provide information as required by subsections (1) and (2) of this section, the other party may apply for a motion to compel as provided in ORCP 46.

(b) Notwithstanding ORCP 46 A(4), if the motion is granted and the court finds that there was willful noncompliance with the requirements of subsections (1) and (2) of this section, the court shall require the party whose conduct necessitated the motion or the party or attorney advising the action, or both, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees.

(4) If a date for a support hearing has been set and the information listed in subsection (1)(a) to (d) of this section has not been provided as required by subsection (2) of this section:

(a) By the obligor, the judge shall postpone the hearing, if requested to do so by the obligee, and provide in the future order for support that the support obligation is retroactive to the date of the original hearing; or

(b) By the obligee, the judge shall postpone the hearing, if requested to do so by the obligor, and provide that any support ordered in a future hearing may be prospective only.

(5) The provisions of this section do not limit in any way the discovery provisions of the Oregon Rules of Civil Procedure or any other discovery provision of Oregon law.