71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1980
 
                           A-Engrossed
 
                         Senate Bill 249
                   Ordered by the Senate May 1
             Including Senate Amendments dated May 1
 
Sponsored by Senator MINNIS
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Makes discovery requirements in criminal cases reciprocal
between defense and prosecution except when privilege would be
violated.  { + Creates exception to disclosure requirements for
information subject to privilege and information that would
violate constitutional rights of defendant. + }
 
                        A BILL FOR AN ACT
Relating to discovery; amending ORS 135.815, 419C.270 and
  468.963; and repealing ORS 135.835.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + ORS 135.835 is repealed. + }
  SECTION 2. ORS 135.815 is amended to read:
  135.815. (1) Except as otherwise provided in ORS 135.855 and
135.873,   { - the district attorney - }   { + a party + } shall
disclose to   { - a represented defendant - }   { + the adverse
party + } the following material and information within the
possession or control of the   { - district attorney - }
 { + party + }:
  (a) The names and addresses of persons whom the   { - district
attorney - }   { + party + } intends to call { + , or is
considering calling, + } as witnesses at any stage of the trial,
together with their relevant written or recorded statements or
memoranda of any oral statements of such persons.
    { - (b) Any written or recorded statements or memoranda of
any oral statements made by the defendant, or made by a
codefendant if the trial is to be a joint one. - }
    { - (c) - }  { +  (b) + } Any reports or statements of
experts, made in connection with the particular case, including
results of physical or mental examinations and of scientific
tests, experiments or comparisons which the   { - district
attorney - }  { +  party + } intends to offer { + , or is
considering offering, + } in evidence at the trial.
    { - (d) - }  { +  (c) + } Any books, papers, documents,
photographs or tangible objects:
  (A) Which the   { - district attorney - }   { + party + }
intends to offer { + , or is considering offering, + } in
evidence at the trial; or
 
  (B)  { + Which the district attorney intends to offer, or is
considering offering, in evidence at the trial and + } which were
obtained from or belong to the defendant.
    { - (e) - }  { +  (d) + } If actually known to the district
attorney, any record of prior criminal convictions of persons
whom the district attorney intends to call { + , or is
considering calling, + } as witnesses at the trial; and the
district attorney shall make a good faith effort to determine if
such convictions have occurred.
    { - (f) - }  { +  (e) + } All prior convictions of the
defendant known to the state that would affect the determination
of the defendant's criminal history for sentencing under rules of
the Oregon Criminal Justice Commission.
   { +  (2) Except as otherwise provided in ORS 135.855 and
135.873, the district attorney shall disclose to a defendant any
written or recorded statements or memoranda of any oral
statements made by the defendant, or made by a codefendant if the
trial is to be a joint one. + }
    { - (2)(a) - }  { +  (3)(a) + } If a defendant is not
represented by a lawyer, the district attorney   { - shall
disclose to the defendant all of the information described in
subsection (1) of this section except for - }  { +  is not
required to disclose + } the addresses and telephone numbers of
the victim and any witnesses.
  (b) Notwithstanding paragraph (a) of this subsection, the
district attorney shall disclose the addresses and telephone
numbers of the victim and any witnesses if the trial court orders
the disclosure. A trial court shall order the district attorney
to disclose the addresses and telephone numbers of the victim and
any witnesses if the trial court finds that:
  (A) The defendant has requested the information; and
  (B)(i) The victim or witness is a business or institution and
disclosure of the information would not represent a risk of harm
to the victim or witness; or
  (ii) The need for the information cannot reasonably be met by
other means.
    { - (3)(a) - }  { +  (4)(a) + } Unless authorized by the
trial court to disclose the information, a lawyer representing a
defendant, or a representative of the lawyer, may not disclose to
the defendant the address or telephone number of a victim or
witness obtained under subsection (1) of this section.
  (b) The trial court shall order the lawyer, or representative
of the lawyer, to disclose to the defendant the address and
telephone number of a victim or witness if the court finds that:
  (A) The defendant's lawyer has requested the district attorney
to disclose the information to the defendant;
  (B) The district attorney has refused to disclose the
information to the defendant; and
  (C) The need for the information cannot reasonably be met by
other means.
   { +  (5) Notwithstanding subsections (1) and (2) of this
section, a party is not required to disclose material or
information if:
  (a) The material or information is subject to a privilege under
ORS 40.225 to 40.295; or
  (b) Disclosure of the material or information would violate a
constitutional right of the defendant. + }
    { - (4) - }  { +  (6) + } As used in this section:
   { +  (a) 'Affirmative step' includes, but is not limited to:
  (A) Issuing a subpoena or any action taken toward issuing a
subpoena;
  (B) Asking a person to be available as a potential witness or
any action taken toward asking a person to be available as a
witness;
  (C) Gathering materials that would assist the party in
examining a witness or offering evidence; or
  (D) After reviewing the case or within 15 days prior to trial
or motions, whichever is later, having a reasonable belief that
the witness will be subpoenaed or called or the evidence will be
offered.
  (b) 'Intends to offer, or is considering offering' and '
intends to call, or is considering calling' mean that the party
has taken an affirmative step in preparation of offering evidence
or calling a witness. + }
    { - (a) - }  { +  (c) + } 'Representative of the lawyer' has
the meaning given that term in ORS 40.225.
    { - (b) 'Represented defendant' means a defendant who is
represented by a lawyer in a criminal action. - }
  SECTION 3. ORS 419C.270 is amended to read:
  419C.270. In all proceedings brought under ORS 419C.005, the
following rules of criminal procedure apply:
  (1) ORS 133.673, 133.693 and 133.703;
  (2) ORS 135.455, 135.465 and 135.470;
  (3) ORS 135.610, 135.630 (3) to (6), 135.640 and 135.670;
  (4) ORS 135.711, 135.713, 135.715, 135.717, 135.720, 135.725,
135.727, 135.730, 135.733, 135.735, 135.737, 135.740 and 135.743;
  (5) ORS 135.805 and 135.815 (1)(a) to   { - (e) - }  { +  (d)
and (2) + };
  (6) ORS 135.825,   { - 135.835, - }  135.845 and 135.855 to
135.873;
  (7) ORS 135.970; and
  (8) ORS 136.432, 147.417, 147.419 and 147.421.
  SECTION 4. ORS 468.963 is amended to read:
  468.963. (1) In order to encourage owners and operators of
facilities and persons conducting other activities regulated
under ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A,
468B or 825, or the federal, regional or local counterpart or
extension of such statutes, both to conduct voluntary internal
environmental audits of their compliance programs and management
systems and to assess and improve compliance with such statutes,
an environmental audit privilege is recognized to protect the
confidentiality of communications relating to such voluntary
internal environmental audits.
  (2) An Environmental Audit Report shall be privileged and shall
not be admissible as evidence in any legal action in any civil,
criminal or administrative proceeding, except as provided in
subsections (3) and (4) of this section.
  (3)(a) The privilege described in subsection (2) of this
section does not apply to the extent that it is waived expressly
or by implication by the owner or operator of a facility or
persons conducting an activity that prepared or caused to be
prepared the Environmental Audit Report. The release of an
Environmental Audit Report by the owner or operator of a facility
to any party or to any public body for purposes of negotiating,
arranging or facilitating the sale, lease or financing of a
property or a facility, or a portion of a property or facility:
  (A) Is not a waiver of the privilege; and
  (B) Does not create a right for a public body to require the
release of an Environmental Audit Report.
  (b) In a civil or administrative proceeding, a court of record,
after in camera review consistent with the Oregon Rules of Civil
Procedure, shall require disclosure of material for which the
privilege described in subsection (2) of this section is
asserted, if such court determines that:
  (A) The privilege is asserted for a fraudulent purpose;
  (B) The material is not subject to the privilege; or
  (C) Even if subject to the privilege, the material shows
evidence of noncompliance with ORS 824.050 to 824.110 or ORS
chapter 465, 466, 468, 468A, 468B or 825, or with the federal,
regional or local counterpart or extension of such statutes,
appropriate efforts to achieve compliance with which were not
promptly initiated and pursued with reasonable diligence.
  (c) In a criminal proceeding, a court of record, after in
camera review as described in subsection (4) of this section,
shall require disclosure of material for which the privilege
described in subsection (2) of this section is asserted, if the
court determines that:
  (A) The privilege is asserted for a fraudulent purpose;
  (B) The material is not subject to the privilege;
  (C) Even if subject to the privilege, the material shows
evidence of noncompliance with ORS 824.050 to 824.110 or ORS
chapter 465, 466, 468, 468A, 468B or 825, or with the federal,
regional or local counterpart or extension of such statutes,
appropriate efforts to achieve compliance with which were not
promptly initiated and pursued with reasonable diligence; or
  (D) The material contains evidence relevant to commission of an
offense under ORS 468.922 to 468.956, the district attorney or
Attorney General has a compelling need for the information, the
information is not otherwise available and the district attorney
or Attorney General is unable to obtain the substantial
equivalent of the information by any means without incurring
unreasonable cost and delay.
  (d) A party asserting the environmental audit privilege
described in subsection (2) of this section has the burden of
proving the privilege, including, if there is evidence of
noncompliance with ORS 824.050 to 824.110 or ORS chapter 465,
466, 468, 468A, 468B or 825, or the federal, regional or local
counterpart or extension of such statutes, proof that appropriate
efforts to achieve compliance were promptly initiated and pursued
with reasonable diligence. A party seeking disclosure under
subsection (3)(b)(A) of this section has the burden of proving
that the privilege is asserted for a fraudulent purpose. A
district attorney or the Attorney General seeking disclosure
under subsection (3)(c)(D) of this section has the burden of
proving the conditions for disclosure set forth in subsection
(3)(c)(D) of this section.
  (4)(a) A district attorney or the Attorney General, having
probable cause to believe an offense has been committed under ORS
468.922 to 468.956 based upon information obtained from a source
independent of an Environmental Audit Report, may obtain an
Environmental Audit Report for which a privilege is asserted
under subsection (2) of this section pursuant to search warrant,
criminal subpoena or discovery as allowed by ORS
 { - 135.835 - }  { + 135.815 + }. The district attorney or
Attorney General shall immediately place the report under seal
and shall not review or disclose its contents.
  (b) Within 30 days of the district attorney's or Attorney
General's obtaining an Environmental Audit Report, the owner or
operator who prepared or caused to be prepared the report may
file with the appropriate court a petition requesting an in
camera hearing on whether the Environmental Audit Report or
portions thereof are privileged under this section or subject to
disclosure. Failure by the owner or operator to file such
petition shall waive the privilege.
  (c) Upon filing of such petition, the court shall issue an
order scheduling an in camera hearing, within 45 days of the
filing of the petition, to determine whether the Environmental
Audit Report or portions thereof are privileged under this
section or subject to disclosure. Such order further shall allow
the district attorney or Attorney General to remove the seal from
the report to review the report and shall place appropriate
limitations on distribution and review of the report to protect
against unnecessary disclosure. The district attorney or Attorney
General may consult with enforcement agencies regarding the
contents of the report as necessary to prepare for the in camera
hearing. However, the information used in preparation for the in
camera hearing shall not be used in any investigation or in any
proceeding against the defendant, and shall otherwise be kept
confidential, unless and until such information is found by the
court to be subject to disclosure.
  (d) The parties may at any time stipulate to entry of an order
directing that specific information contained in an Environmental
Audit Report is or is not subject to the privilege provided under
subsection (2) of this section.
  (e) Upon making a determination under subsection (3)(b) or (c)
of this section, the court may compel the disclosure only of
those portions of an Environmental Audit Report relevant to
issues in dispute in the proceeding.
  (5) The privilege described in subsection (2) of this section
shall not extend to:
  (a) Documents, communications, data, reports or other
information required to be collected, developed, maintained,
reported or otherwise made available to a regulatory agency
pursuant to ORS 824.050 to 824.110 or ORS chapter 465, 466, 468,
468A, 468B or 825, or other federal, state or local law,
ordinance, regulation, permit or order;
  (b) Information obtained by observation, sampling or monitoring
by any regulatory agency; or
  (c) Information obtained from a source independent of the
environmental audit.
  (6) As used in this section:
  (a) 'Environmental audit' means a voluntary, internal and
comprehensive evaluation of one or more facilities or an activity
at one or more facilities regulated under ORS 824.050 to 824.110
or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal,
regional or local counterpart or extension of such statutes, or
of management systems related to such facility or activity, that
is designed to identify and prevent noncompliance and to improve
compliance with such statutes. An environmental audit may be
conducted by the owner or operator, by the owner's or operator's
employees or by independent contractors.
  (b) 'Environmental Audit Report' means a set of documents, each
labeled 'Environmental Audit Report: Privileged Document ' and
prepared as a result of an environmental audit. An Environmental
Audit Report may include field notes and records of observations,
findings, opinions, suggestions, conclusions, drafts, memoranda,
drawings, photographs, computer-generated or electronically
recorded information, maps, charts, graphs and surveys, provided
such supporting information is collected or developed for the
primary purpose and in the course of an environmental audit. An
Environmental Audit Report, when completed, may have three
components:
  (A) An audit report prepared by the auditor, which may include
the scope of the audit, the information gained in the audit,
conclusions and recommendations, together with exhibits and
appendices;
  (B) Memoranda and documents analyzing portions or all of the
audit report and potentially discussing implementation issues;
and
  (C) An implementation plan that addresses correcting past
noncompliance, improving current compliance and preventing future
noncompliance.
  (7) Nothing in this section shall limit, waive or abrogate the
scope or nature of any statutory or common law privilege,
including the work product doctrine and the attorney-client
privilege.
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