No interrogatories in Oregon...Any ideas on how to procede with Discovery?

[cinesational]

Hi, I filed the Answer, and now am going to send off "REQUESTS FOR ADMISSIONS" AND

"REQUEST FOR PRODUCTION OF DOCUMENTS",I wanted to send out interrogatories, but Oregon doesn't allow for them..any ideas on what I should do about getting these questions answered? Also I am only allowed 30 Admissions..

This was one of the questions i was going to ask:

Interrogatory No. 22

How much was this account purchased for from Credit Financial?

How would I get them to give me this info?

I also can't find anywhere about the filing of Discovery? I do have to file with the court right?

Edited May 5, 2010 by cinesational
bad title no responses

[cinesational]

Any ideas on question I should ask in discovery?

[ADSOFT]

Look into bill of Paticulars? Where did you get the 20 count thing?

..omg you are right, wtf

TIP ONE

Don’t follow notice pleading rules. Oregon state courts still use a form of code pleading.

Oregon state courts have not adopted notice pleading practices. The complaint must contain a “statement of the ultimate facts” forming a claim, which is code pleading, rather than a simple “statement of the claim.” The semantic difference is significant. If you do not plead ultimate facts – and rely instead on the tried and true notice pleading format – you will likely be hit with seemingly endless motions to dismiss or to make the claims more definite and certain.

TIP TWO

Don’t plead damages in an amount to be proven at trial.

Washington practitioners may be accustomed to seeing complaints with damages generally stated “in amount to be determined at trial,” particularly for claims involving personal injuries. Washington law provides that the defendant may then submit a request to the plaintiff for a statement of damages. The form and substance of damages pleading in Oregon is materially different.

The Oregon rules provide that “if recovery of money or damages is demanded, the amount thereof shall be stated.” This rule therefore requires a plain statement of damages as an element of a claim, a prayer for damages, and the amount of monetary damages sought. The maximum damages must be stated. For special damages such as lost profits, ultimate facts must be pleaded as the basis for the alleged loss.

TIP THREE

Don’t forget to plead the right to recover attorney’s fees.

Oregon court rules require the pleader to state in the complaint, answer or other pleading the entitlement to recover attorney’s fees, whether it be by statute, contract or rule. If no pleading is filed, but instead a motion to dismiss or motion for summary judgment prior to pleading, the basis for recovering attorney’s fees must be stated in the motion. The court has no basis to award fees to the prevailing party without it.

TIP FOUR

Don’t plead punitive damages. It’s not permitted in the opening complaint (except in federal court).

In contrast to Washington, punitive damages are recoverable in Oregon under appropriate circumstances. However, plaintiffs cannot request an award of punitive damages in an initial complaint filed in state court. The plaintiff can, nevertheless, include a “notice” provision in the complaint by stating the intent to file a motion for leave of court to amend the complaint to assert a claim for punitive damages. The motion must be supported by affidavits and other evidence adequate to avoid a motion for directed verdict. Discovery of the defendant’s ability to pay is not permitted unless and until this motion is granted.

TIP FIVE

Don’t count on expert discovery.

Oregonians seem to prefer trial by ambush. There is no expert discovery in Oregon state court. Unless you persuade opposing counsel to exchange it earlier, chances are you will learn the identity of the expert and receive the written report (if any) just before the expert sits down to testify.

The U.S. District Court for the District of Oregon permits expert discovery, but the local rules and the prevailing views of the district judges are more limited than you may expect under the Federal Rules of Civil Procedure. Although FRCP 26(a)(2) requires expert disclosures and FRCP 26((4) permits expert depositions, the local rule provides that depositions of experts may be taken “only pursuant to a written stipulation of the parties, or as scheduled by the court.” Thus, in those instances where an expert has prepared a thorough report and counsel will not stipulate to reciprocal depositions, the court could hold that the deposition is unnecessary.

TIP SIX

Don’t count on “smoking out the expert” through summary judgment.

ORCP 47 governs summary judgment motions in Oregon Circuit Court. In contrast to federal court, where a motion for summary judgment may raise issues requiring an expert to respond, Oregon has a special rule to avoid this circumstance. Under state practice, the attorney for the party responding to the motion may submit an affidavit stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact. An attorney affidavit to this effect is sufficient for the court to deny a motion for summary judgment.

TIP SEVEN

Don’t count on taking discovery depositions of treating physicians.

Washington practitioners are accustomed to rules providing that the plaintiff is deemed to have waived the physician-patient privilege 90 days after filing a personal injury action, and that depositions of treating physicians are permissible. The rules are quite different in Oregon.

The Oregon Evidence Code provides that all evidentiary privileges, including physician-patient, are not waived “with the mere commencement of litigation.” The plaintiff can even perpetuate a physician’s testimony prior to trial without waiving the privilege. Waiver does not occur until the perpetuated testimony is offered as substantive evidence at trial, or, with respect to live testimony at trial, when the physician testifies. Waiver can also occur if the plaintiff voluntarily initiates a discovery deposition (rather than perpetuation deposition) of the treating physician prior to trial, which is rare. Thus, there are no defense discovery depositions of treating physicians in Oregon, unless the plaintiff sees fit to waive the privilege first.

TIP EIGHT

Don’t prepare interrogatories. Oregon shuns such “useless” discovery tools.

There is no counterpart in Oregon to FRCP 33. No witness identification interrogatories in Oregon. No contention interrogatories in Oregon. No interrogatories whatsoever. Even the U.S. District Court in this jurisdiction is “interrogatory averse,” prohibiting contention interrogatories altogether.

TIP NINE

Don’t count on sizing up or even identifying your trial judge until, well, trial.

If you file a case in Oregon Circuit Court, chances are you won’t know the identity of the trial judge until the day before trial, at the daily trial calendar call. The presiding judge will at that time assign the trial judge for the next day. The only way to avoid this uncertainty is to file a motion for a “complex case” designation. This designation is reserved for unusual cases, though, so don’t expect the court to grant your motion simply because you filed it.

TIP TEN

Don’t count on a unanimous jury verdict. 9 out of 12 is good enough.

There is no requirement for a unanimous verdict in civil cases in Oregon Circuit Court. Three-fourths, or 9 out of 12, of the jurors may render a verdict. This requirement prompts some defendants to remove cases to federal district court, if at all possible, because there the verdict must be unanimous.

[cinesational]

Thanks ADSOFT, I will do that now..I did find these tips also...thanks

[ADSOFT]

I think section 84 allows for bill of particulars in account cases. But, if I understand correctly, they have to limit thier agrument, or most of it to what is on the summons.

I could be wrong, but you might be ready to fill a motion to dismiss, if you find some holes in thier summons.

Was an agreement supplied?

Are you being sued by the OC? If not then you might be able to have a dismissal because the JDB can't didn't prove they have a right to sue since there never provided proof of assignment. ...just a an example of one of many ways to find a hole in thier suit. I guess in Oregon when you sue, it's like going to a department store and asking for a refund, you have to have all your paper work with you.

...now I know why courts let plantiffs just supply allegations and the defendent has to defend himself. My good think of all the reciepts and contracts that would have to be stored in the court house, .... lol.

I think?

You need to find some members with Oregon experience, Personally I think you have to learn what "code pleading is" vs. "notice pleadings" (see my first response) , I think that will answer your questions.

Personally, I think I might like, "code pleading" better since they would have to provide all the proof in thier complaint (if I understand what code pleading is).

I'll help you do some more research on this, if "code pleading" is what I think it is, it's going to be hard for them to have all the elements of "breach of contract case". You might just be able to file a dismissal ASAP, at least thats what some of the websites state that I read on oregon.

BOP might not be the way to go at first, you might help them. Find out what "code pleading is"

[ADSOFT]

Here you go:

Code Pleading, Fact Pleading, Notice Pleading:'

http://en.wikipedia.org/wiki/Pleading

Code pleading

Code pleading was introduced in the 1850s in New York and California. Code pleading sought to abolish the distinction between law and equity[1]. It unified civil procedure for all types of actions as much as possible. The focus shifted from pleading the right form of action (that is, the right procedure) to pleading the right cause of action (that is, a substantive right to be enforced by the law). Under code pleading, the required elements of each action are supposed to be set out in carefully codified statutes.

Code pleading required the pleading of "ultimate facts." This means that to plead a cause of action, the pleader has to plead each element and also allege specific facts which, if proven with evidence at trial, would constitute proof of that element. Failure to provide such detail could lead to dismissal of the case if the defendant successfully demurred to the complaint.

Code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers"[

I could be wrong but you might want to start looking for way to get a case dismissed in Oregon. It seems like it might pretty hard to sue someone in Oregon, .... but I could be wrong.

Very interesting though, this will help my case too, It seems like there are alot of discovery motions in california.

There might be some books online, or at the bookstore (Borders is popular in California) that are specific to Oregon court. You should be able to find something on suing in Oregon courts, these books usually have stuff that help both the plantiff and defendent. Breach of Contact cases should be in there, they are common lawsuits.

Your case is starting to look better and better

[cinesational]

Thanks for the info ADSOFT,

you have been a huge help to me

[drummer55]

Oregon rules don't expressly prohibit the use of interrogatories. You have to file a motion, moving for leave of the court, to utilize them in an Oregon case

Are Interrogatories Right For Oregon? Slinde Nelson Attorneys Portland Oregon

The question is this worth doing?

[Seadragon]

That may be one way of getting the information. Another way would be to find out which document would have that information(if CreditMaxx is one of the assignees in the chain PM me I will give you that document name) and then subpoena duces tecum the records custodian.

They are not going to want to give you that so you have to also ask for other things that they will fight to the end to prevent disclosing.

a little off point but has anyone looked into the JDB tax returns an seen if they are paying taxes on all these judgments they are receiving? Sounds to me like the IRS would give you some money for bringing that to their attention. The only thing crooked men fear most is an IRS audit.

[freddiemac]

good question I have the same problem in co