Chapter 398 Oregon Laws 2001
AN ACT
HB 2372
Relating to testimony in
civil trials; amending ORS 45.400.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 45.400 is amended to read:
45.400. (1) Upon motion of any party and for good cause
shown, the court may order that the testimony of the party or any witness for
the moving party be taken by telephone or by other two-way electronic
communication device in any [nonjury]
civil proceeding[, juvenile dependency
proceeding or termination of parental rights proceeding].
(2) A party filing a motion under this section must give
written notice to all other parties to the proceeding at least 30 days before
the trial or hearing at which the telephone testimony will be offered. The
court may allow written notice less than 30 days before the trial or hearing
for good cause shown.
(3) Except as
provided under subsection (4) of this section, the court shall allow
telephone testimony under this section upon a showing of good cause [unless the court determines that:]. The court may not allow the use of
telephone testimony in any case if:
(a) The ability to evaluate the credibility and demeanor of
a witness or party in person is critical to the outcome of the proceeding;
(b) The issue or issues the witness or party will testify
about are so determinative of the outcome that face-to-face cross-examination
is necessary;
(c) A perpetuation deposition under ORCP 39 I is a more
practical means of presenting the testimony;
(d) The exhibits or documents the witness or party will
testify about are too voluminous to make telephone testimony practical;
(e) Facilities [are
not available] that would permit the taking of telephone testimony are not available;
(f) The failure of the witness or party to appear personally
will result in substantial prejudice to a party to the proceeding; or
(g) Other circumstances exist that require the personal
appearance of a witness or party.
(4) The court may
not allow use of telephone testimony in a jury trial unless good cause is shown
and there is a compelling need for the use of telephone testimony.
[(4)] (5) [Notwithstanding subsection (3)(e) of this section, the court shall
order that telephone testimony be taken under this section if the party filing
the motion establishes that alternative procedures or technologies allow the
taking of telephone testimony.] The
court may not prohibit the use of telephone testimony solely by reason of the
provisions of subsection (3)(e) of this section if the party filing the motion
establishes that alternative procedures or technologies allow the taking of
telephone testimony.
[(5)] (6) A party filing a motion for
telephone testimony under this section must pay all costs of the telephone
testimony, including the costs of alternative procedures or technologies used
for the taking of telephone testimony. No part of those costs may be recovered
by the party filing the motions as costs and disbursements in the proceeding.
[(6)] (7) Factors that a court may consider
that would support a finding of good cause for the purpose of a motion under
this section include:
(a) The witness or party might be unavailable because of
age, infirmity or mental or physical illness;
(b) The party filing the motion seeks to take the telephone
testimony of a witness whose attendance the party has been unable to secure by
process or other reasonable means;
(c) A personal appearance by the party or witness would be
an undue hardship on the party or witness; or
(d) Any other circumstances that constitute good cause.
[(7)] (8) This section does not apply to a
workers’ compensation hearing or to any other administrative proceeding.
[(8)] (9) For purposes of this section,
“telephone testimony” means testimony given by telephone or by any other
two-way electronic communication device, including but not limited to
satellite, cellular or other interactive communication device.
Approved by the Governor
June 15, 2001
Filed in the office of
Secretary of State June 15, 2001
Effective date January 1,
2002
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