Mandamus Petitions For Adverse Discovery Rulings

Authors: David Markowitz and Anna Joyce, Markowitz Herbold PC

TITLE:  Rectifying Adverse Discovery Rulings

I.          Introduction

Over the course of your litigation career, you may eventually encounter a discovery ruling that violates existing law and, to salvage your case, you need to remedy the error before final judgment.  Oregon law does not provide an interlocutory appeal mechanism to challenge discovery orders in civil cases, so options are limited. 

A motion for reconsideration may be possible, but such motions are often frowned upon or even prohibited by the supplemental local rules.  See Multnomah County SLR 5.045; Deschutes County SLR 5.045; Jefferson and Crook Counties SLR 5.045.  The alternative is a writ of mandamus, but the writ process can be confusing and intimidating.  The goal of this article is to help litigators decide when a writ of mandamus can help with adverse discovery rulings.

II.        What is a writ of mandamus?

Under ORS 34.110 and Or Const, Art VII, § 2, the Oregon Supreme Court may issue writs of mandamus to inferior courts to compel acts that are required by law.  Framed slightly differently, a writ’s only purpose is to enforce established rights and duties imposed by the law.  State ex rel. Dewberry v. Kulongoski, 346 Or 260, 267 (2009). 

Mandamus is an extraordinary remedy with unique pleading and practice requirements. 

As particularly relevant to the discovery context, mandamus is not available when (1) litigants have an adequate remedy on appeal or (2) when the trial court’s ruling is discretionary.  Mandamus is not available when there is “a plain, speedy and adequate remedy in the ordinary course of the law.”  ORS 34.110.  Although an appeal takes longer than a mandamus action, the availability of an appeal is ordinarily considered plain, speedy, and adequate enough to satisfy ORS 34.110.  State ex rel. Auto. Emporium, Inc. v. Murchison, 289 Or 265, 269 (1980). 

Writs of mandamus cannot “control judicial discretion.”  ORS 34.110.  That said, where a judicial ruling violated the law—i.e. where the trial court committed “a fundamental legal error” by exceeding the permissible range of discretionary choices— the Court may issue a writ of mandamus because the trial court’s ruling was not a valid exercise of discretion.  State ex rel. Keisling v. Norblad, 317 Or 615, 616 (1993); Lindell v. Kalugin, 353 Or 338, 347 (2013) (quoting Norblad, 317 Or at 616); see also Riesland v. Bailey, 146 Or 574, 578–80 (1934) (fuller discussion).

            III.  When is mandamus appropriate for adverse discovery rulings?

If an adverse discovery ruling constitutes a “special loss beyond the burden of litigation” or has certain “systemic implications,” then mandamus may be appropriate.  Murchison, 289 Or at 269; State ex rel. Anderson v. Miller, 320 Or 316, 324 (1994).  Special losses include “irreparable injury” and “irretrievable loss of information and tactical advantage” that cannot be restored on appeal.  Longo v. Premo, 355 Or 525, 532 (2014).  Being forced to litigate and appeal are not considered special losses without other factors.  State ex rel. Auto. Emporium, Inc. v. Murchison, 289 Or 265, 269 (1980).

That kind of special loss often arises in the privilege context, as the following examples reflect:

  • Frease v. Glazer, 330 Or 364, 373–74, (2000) (based on the crime-fraud exception to the attorney-client privilege, the trial court ordered an in camera inspection of privileged documents.  The Supreme Court issued a peremptory writ preventing the inspection because the plaintiff did not show enough evidence that the crime-fraud exception to the attorney-client privilege applied);

  • Hodges v. Oak Tree Realtors, Inc., 363 Or 601, 604 (2018) (trial court ruled deposition answers were not protected by the physician-patient privilege.  The Supreme Court issued a peremptory writ declaring the exception did not apply and plaintiff could assert the privilege);

  • State ex rel. Anderson v. Miller, 320 Or 316, 318 (1994) (trial court entered a protective order preventing depositions from being videotaped, but the Supreme Court issued a peremptory writ vacating the order because there were no factors justifying the circuit court’s order under ORCP 36(C)(1));)).

Mandamus is uniquely capable of addressing the recognition or denial of privileges.  Longo v. Premo, 355 Or 525, 532 (2014) (. It is well established that “disclosure of privileged information may cause irreparable injury.”).  Though the attorney-client and physician-patient privileges may be the most commonly asserted privileges in civil litigation, no doctrinal reason exists why other established privileges (including self-incrimination, spousal, and clergy-penitent privilege) would not also be mandamus-worthy.  Simply put, any time your client loses a discovery battle involving a privilege, consider whether a mandamus petition is a possible avenue.

Additionally, the Court is willing to issue writs of mandamus where the parties can identify systemic implications from a discovery ruling or where a party has suffered a special loss, irreparable injury.  Examples include:

  • Ransom v. Radiology Specialists of Nw., 363 Or 552, 554 (2018) (trial court denied plaintiff’s motion to compel the defendant physicians to answer certain deposition questions that generally implicated their medical expertise.  The Supreme Court issued a peremptory writ requiring the defendants to answer because the questions did not actually call for expert testimony).);
  • State ex rel. S. Pac. Co. v. Duncan, 230 Or 179, 180 (1962) (trial court ordered a corporate defendant to produce its train conductor and engineer for depositions under a statute permitting managerial employee depositions.  The Supreme Court issued a peremptory writ disallowing the depositions because the employees were not “managers” under the statute);
  •  Gwin v. Lynn, 344 Or 65, 67 (2008) (circuit court denied motion to compel an expert witness to be deposed as a fact witness for matters of personal involvement.  The Supreme Court issued a peremptory writ permitting such discovery because nothing in ORCP 26(B)(1) prevented it).

Ultimately, the Court is a practical body that cares about preventing waste and setting forth clear law to follow.  The Court take cases that allow it to rule on legal issues of first impression, clarify the law in commonly encountered scenarios, and prevent retrials before they become necessary.  Be sure to keep this pragmatic bent in mind when filing your own mandamus petitions.

            IV.  How to petition for mandamus?

First and foremost, remember that you may need to request a stay or pursue appellate remedies at the same time you petition for mandamus.

Second, get your terms for the parties right.  The party petitioning for a writ is the “relator,” and the relator’s opponent from the circuit court is called the “adverse party.”  Do NOT name the circuit court itself or the judge as a party, even if the judge’s action is the true target of the petition.  ORS 34.250(2).  Some of the older caselaw differs in this regard, but that is because the law has changed.  Follow the statutes on this instead of the old caselaw.

Third, follow the unique pleading and service requirements very carefully.  The legislature has set those steps out in detail in ORS 34.130–140.  See also ORAP 11.05.

Fourth, understand the difference between an alternative writ and a peremptory writ.  See ORS 34.150.  Most successful mandamus petitions first result in an alternative writ, giving the circuit court the opportunity to change its challenged ruling and allowing an explanation why it should not do so.  A peremptory writ is a final decision that directly commands a particular action.

Fifth, craft your petition carefully as if it was an actual pleading that requires a plain and concise explanation of the facts for the underlying dispute.  State ex rel. Venn v. Reid, 207 Or 617, 623 (1956).

Finally, do not be afraid of the process!  It may seem daunting at first, but you can do this.  Perhaps you have never argued in front of an appellate court before—arguing for a writ of mandamus before the Oregon Supreme Court could be a fantastic and exciting introduction to appellate practice.

This article appeared in the Spring 2020 issue of the Oregon State Bar's Litigation Journal.

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