State ex rel. Byers v. Crookham

PER CURIAM

In the underlying personal injury case, the trial judge (defendant in this mandamus proceeding) granted the plaintiffs motion to compel the defendant to produce copies of all medical reports and records pertaining to the plaintiffs condition and not previously supplied by the plaintiff and copies of any pictures of the plaintiff. Relator, the defendant in the personal injury case, objected, asserting, among other things, that the plaintiff had made no showing under the Oregon Rules of Civil Procedure to justify the requested discovery. ORCP 36B.(3) provides:

“Subject to the provisions of Rule 44 [which relieves from the requirements below copies of written reports or examinations relating to injuries in a personal injury action, if requested by the defendant], a party may obtain discovery of documents and tangible things otherwise discoverable under subsection B.(l) of this rule and prepared in anticipation of litigation or for trial by or for another party * * * only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party’s case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. * * *”

The plaintiffs discovery request for materials prepared for or collected in anticipation of litigation or trial did not comply with ORCP 36B.(3). To obtain discovery the plaintiff is required to show need and unavailability. The plaintiff made no showing of substantial need for the materials or undue hardship in obtaining them some other way. The mandamus record, which includes a transcript of the hearing on the matter and the motions filed before the trial court, does not include any such showing.

Writ to issue mandating that the trial court vacate the discovery order.