ORCP 46B

NOTES OF DECISIONS

Trial court exceeded discretion when it struck defendant’s appearance and declared him in default for failing to attend deposition where court made no finding that defendant’s failure was willful or in bad faith. Hahm v. Hills, 70 Or App 275, 689 P2d 999 (1984)

Although two depositions were scheduled and canceled during 30-day period covered by order, where fact remained that defendant was ready to comply with court order on last day provided in order, judgment by default was improper sanction against defendant. Piercy v. Goldleaf Corp., 79 Or App 254, 719 P2d 36 (1986)

When plaintiff and his counsel failed to appear for deposition on two different occasions, after receiving notice, trial court did not abuse its discretion in dismissing plaintiff’s complaint with prejudice as sanction under this rule. Martin v. Blakney, 85 Or App 203, 735 P2d 1294 (1987)

Trial court did not abuse its discretion by imposing sanction of dismissal with prejudice where request for production had been pending for 16 months, party ignored numerous requests for production and order to compel had been in effect for two weeks before defendant moved for sanctions. Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied

Sending attorney copy of proposed order requiring compliance with discovery request was not sufficient notice of valid order to allow imposition of sanctions. Western Ridge Land Co. v. Zimmerlee, 127 Or App 705, 873 P2d 1099 (1994), Sup Ct review denied

Dismissal requires finding that sanction is just and that willful disobedience, bad faith or similar degree of fault occurred. Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994)

Dismissal does not require finding that party seeking discovery was prejudiced by failure to comply. Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994)

Where party was aware of discovery order, lack of timely written order did not excuse failure to comply. Kosatka and Kosatka, 137 Or App 379, 904 P2d 195 (1995), Sup Ct review denied

Court imposing dismissal must set forth analytical considerations of why dismissal is just in view of other available sanctions. Pamplin v. Victoria, 138 Or App 563, 909 P2d 1245 (1996)

Ability of court to issue order for payment of reasonable expenses incurred due to failure to obey attorney or order expires once case is no longer pending before court. Winfrey v. Downtown Delicatessen, Inc., 157 Or App 668, 971 P2d 476 (1998), Sup Ct review denied

Dismissal of action without prejudice requires finding that plaintiff failed to obey discovery order and that dismissal is just, but does not require finding of willfulness, bad faith or other fault by plaintiff. Belinskey v. Clooten, 214 Or App 172, 164 P3d 1163 (2007), Sup Ct review denied

Where trial court dismisses action, but fails to make express special findings that dismissal is just, party must preserve issue in order to seek appellate relief based on lack of findings. Peeples v. Lampert, 345 Or 209, 191 P3d 637 (2008)

ORCP 46C

See also annotations under ORS 41.626 in permanent edition.

NOTES OF DECISIONS

In general

Where defendants appeal imposition of attorney’s fees under this rule and defendants’ reasonable denial of document’s validity did not make it reasonable to dispute document’s authenticity, court did not err in imposing attorney fees. SMO v. Black, 95 Or App 588, 770 P2d 925 (1989)

Where party gives equivocal response, court is not required to deem response to be admission or to be denial. Adams v. Hunter Engineering Co., 126 Or App 392, 868 P2d 788 (1994)

Sanction is not limited to refusals to admit factual matters. McConnell v. Sutherland, 135 Or App 477, 898 P2d 254 (1995)

Payment of proof costs and attorney fees is limited to amounts expended after making request for admission. Gottenberg v. Westinghouse Electric Corp., 142 Or App 70, 919 P2d 521 (1996)

Where pretrial offer exceeds judgment obtained, prohibition against awarding plaintiff attorney fees does not apply to award for defendant’s failure to admit facts proven at trial. Elliott v. Progressive Halcyon Insurance Co., 222 Or App 586, 194 P3d 828 (2008), Sup Ct review denied

LAW REVIEW CITATIONS

Under former similar statute (ORS 41.626)

56 OLR 554 (1977)

ORCP 46D

See also annotations under ORS 44.190 and 45.190 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 45.190)

Notice to party from whom deposition is to be taken must be actual and not imputed from knowledge of agent attorney. Sisk v. McPartland, 267 Or 116, 515 P2d 179 (1973)

In general

Dismissal requires finding that sanction is just and that willful disobedience, bad faith or similar degree of fault occurred. Stasch v. ‘69 Investment, Inc., 147 Or App 46, 934 P2d 630 (1997)