ORCP 43: Production of Documents and Things and Entering Property for Inspection and Other Purposes

A Scope.

A(1) Documents or things. Any party may serve on any other party a request to produce and permit the party making the request, or someone acting on behalf of the party making the request, to inspect and copy any designated documents (including electronically stored information, writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations from which information can be obtained and translated, if necessary, by the respondent through detection devices or software into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 36 B and that are in the possession, custody, or control of the party on whom the request is served.

A(2) Entering property. Any party may serve on any other party a request to enter land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 36 B.

B Procedure.

B(1) Generally. A party may serve a request on the plaintiff after commencement of the action and on any other party with or after service of the summons on that party. The request must identify any items requested for inspection, copying, or related acts by individual item or by category described with reasonable particularity, designate any land or other property on which entry is requested, and must specify a reasonable place and manner for the inspection, copying, entry, and related acts.

B(2) Time for response. A request may not require a defendant to produce or allow inspection, copying, entry, or other related acts before the expiration of 45 days after service of summons, unless the court specifies a shorter time. Otherwise, within 30 days after service of a request in accordance with subsection B(1) of this rule, or such other time as the court may order or to which the parties may agree in writing, a party must serve a response that includes the following:

B(2)(a) a statement that, except as specifically objected to, any requested item within the party's possession or custody is provided, or will be provided or made available within the time allowed and at the place and in the manner specified in the request, and that the items are or must be organized and labeled to correspond with the categories in the request;

B(2)(b) a statement that, except as specifically objected to, a reasonable effort has been made to obtain any requested item not in the party's possession or custody, or that no such item is within the party's control;

B(2)(c) a statement that, except as specifically objected to, entry will be permitted as requested to any land or other property; and

B(2)(d) any objection to a request or a part thereof and the reason for each objection.

B(3) Objections. Any objection not stated in accordance with subsection B(2) of this rule is waived. Any objection to only a part of a request must clearly state the part objected to. An objection does not relieve the requested party of the duty to comply with any request or part thereof not specifically objected to.

B(4) Continuing duty. A party served in accordance with subsection B(1) of this rule is under a continuing duty during the pendency of the action to produce promptly any item responsive to the request and not objected to that comes into the party's possession, custody, or control.

B(5) Seeking relief under Rule 46 A(2). A party who moves for an order under Rule 46 A(2) regarding any objection or other failure to respond or to permit inspection, copying, entry, or related acts as requested, must do so within a reasonable time.

C Writing called for need not be offered. Though a writing called for by one party is produced by the other, and is inspected by the party calling for it, the party requesting production is not obliged to offer it in evidence.

D Persons not parties. A person not a party to the action may be compelled to produce books, papers, documents, or tangible things and to submit to an inspection thereof as provided in Rule 55. This rule does not preclude an independent action against a person not a party for permission to enter land.

E Electronically stored information (“ESI”).

E(1) Form in which ESI is to be produced. A request for ESI may specify the form in which the information is to be produced by the responding party but, if no such specification is made, the responding party must produce the information in either the form in which it is ordinarily maintained or in a reasonably useful form.

E(2) Meetings to resolve issues regarding ESI production; relevance to discovery motions. In any action in which a request for production of ESI is anticipated, any party may request one or more meetings to confer about ESI production in that action. No meeting may be requested until all of the parties have appeared or have provided written notice of intent to file an appearance pursuant to Rule 69 B(1). The court may also require that the parties meet to confer about ESI production. Within 21 days of the request for a meeting, the parties must meet and confer about the scope of the production of ESI; data sources of the requested ESI; form of the production of ESI; cost of producing ESI; search terms relevant to identifying responsive ESI; preservation of ESI; issues of privilege pertaining to ESI; issues pertaining to metadata; and any other issue a requesting or producing party deems relevant to the request for ESI. Failure to comply in good faith with this subsection will be considered by a court when ruling on any motion to compel or motion for a protective order related to ESI. The requirements in this subsection are in addition to any other duty to confer created by any other rule.