Discovery in Oregon divorce cases begins with a statutory list of documents and records that must be gathered and shared with the opposing party. But what exactly is “discovery”– and what’s “discoverable?”
Discovery in Oregon is a procedure for the exchange of information pre-trial in civil and criminal cases. The Oregon Rules of Civil Procedure allow for answers to interrogatories, request for production of documents, request for admissions, and depositions. Discovery can be obtained from people, agencies, companies who are not parties to the case by means of subpoenas. When a party objects to a discovery request, the requesting party may seek the assistance of the court by filing a Motion to Compel Discovery.
In more simple terms, discovery in Oregon divorce cases is the exchange of information.
What must be exchanged in a divorce case?
For starters, Oregon law (ORS 107.089) requires that the parties exchange the following information within 30 days of being served with a petition for divorce:
- All federal and state income tax returns filed by either party for the last three calendar years.
- 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.
- All records showing any income earned or received by either party for the current calendar year.
- 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.
- 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.
- All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due.
- Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party’s name or in which either party has any interest.
- For all automobiles, motor vehicles and boats, documentation evidencing the vehicle identification number or other unique identifying number.
- Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest.
- 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.
- 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.
Section 5 of ORS 107.089 goes on to state, “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.” This means that the above list is what is required for a minimum exchange of discovery, and that the parties can demand more.
What is discoverable in an Oregon divorce?
The general rules of discovery in Oregon allow a fairly broad inquiry. Meaning that, in general, “parties may inquire regarding any matter, not privileged, which is relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Emphasis has been added to that last phrase because it greatly expands what can be requested.
Examples of things that can be discoverable in Oregon divorce cases include– but are not limited to:
- Financial records
- Employment records
- Medical and health records (often subject to a protective order)
- School records
- Counseling records
- Text messages
- Social media content (including Facebook posts and private messages, Twitter and “tweets”, Instagram posts, etc)
- Diaries and journals
What happens if a party in a divorce does not provide discovery?
If a party does not provide information as required by law, the other party may apply for a motion to compel as provided in ORCP 46. If the motion to compel is granted, and the Court finds that there was willful noncompliance with the requirements of Oregon law, the Court will 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.
Are protective orders available for sensitive or confidential materials?
In some cases, yes. A party can apply for what’s called a “protective order” under ORCP 36(C) or other statute (such as the juvenile code).
ORCP 36(C) reads as follows:
Court order limiting extent of disclosure. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or (9) that to prevent hardship the party requesting discovery pay to the other party reasonable expenses incurred in attending the deposition or otherwise responding to the request for discovery.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 46 A(4) apply to the award of expenses incurred in relation to the motion.
How can I use the discovery and the power to compel to my advantage?
For more information on how to best use discovery in your Oregon divorce case, speak with your divorce attorney. If you have not yet hired an attorney, call our office to discuss how we can help you get the most information in your divorce case in order to obtain the best possible outcome. Information is power.