S055234, Opinion — Gwin v. Lynn

65
Argued and submitted January 3, peremptory writ to issue January 31, 2008
Deanna GWIN,
PlaintiffAdverse Party,
and
Thomas RENN,
Plaintiff,
v.
Elliott LYNN,
Defendant-Relator.
(CC 0512-13274; SC 8055234)
1 76 P3d 1 249

CJS, Discovery § 14.
En Banc
Original proceeding in mandamus.*
Jonathan M. Radmacher, of McEwen Gisvold, LLP,
Portland, argued the cause and submitted the brief for
Defendant-Relator. With him on the brief was John B .
Benazzi, Portland.
Timothy W. Grabe, Portland, argued the cause and filed
the brief for Plaintiff-Adverse Party.
GILLETTE, J.
Peremptory writ to issue.
* On petition for a writ of mandamus from an order of Multnomah County
Circuit Court, Richard Baldwin. Judge.

Cite as 344 Or 65
GILLETTE, J.
The issue in this original proceeding in mandamus is
whether a person who is a prospective expert witness in a
civil action can also be a "fact" witness1 and, as such, can be
deposed before trial pursuant to ORCP 36 B.2 The trial court
ruled, in essence, that a person could not be both a fact wit
ness and an expert witness and, based on assurances by the
obj ecting parties (plaintiffs) that the person in question
would be testifying on their behalf as an expert witness at
trial, denied the opposing party's (defendant's) motion to
compel pretrial examination of the person. Defendant then
petitioned this court for a writ of mandamus requiring the
trial court to grant his motion or, in the alternative, to show
cause why it had not done so. This court issued the writ; the
court declined to change its ruling. The case therefore is
before us for resolution. For the reasons that follow, we hold
that a witness may be both an expert witness and a fact wit
ness and, therefore, may be deposed concerning facts that
pertain to the witness's direct involvement in or observation
of the relevant events that are personally known to the wit
ness and that were not gathered primarily for the purpose of
rendering an expert opinion. A peremptory writ shall issue
accordingly.
The underlying case is an action for legal malprac
tice arising out of the following facts: In January 2003, plain
tiff Deanna Gwin, who operated an adult home care business,
hired defendant to defend her in a wage-claim action brought
by a former employee, Waldron. The case ultimately went to
trial and Waldron won a substantial judgment against Gwin,
plus attorney fees and costs. Defendant thereafter repre
sented Gwin in a bankruptcy proceeding, which defendant
initiated by filing a Chapter 7 (dissolution) bankruptcy
petition.
1 For purposes of this opinion, a person is a "fact" witness if the person has
obtained through one or more of the person's senses evidence relevant to a civil
trial and pertaining to a material issue in that trial. To qualify as a "fact" witness,
the person must not have obtained the evidence principally for the purpose of ren
dering an expert opinion in that trial.
The text ofORCP 36 B is set out later in this opinion, 344 Or at 70.

68
Plaintiff Thomas Renn was appointed trustee in
plaintiff Gwin's bankruptcy. At around the same time, Renn
was serving as trustee in another bankruptcy case (the
Bellows-Fairchild case) in which defendant had been
involved. Renn became concerned about defendant's han
dling of both cases.3 At Renn's insistence, the United States
Trustee in Bankruptcy, Ilene Lashinsky, brought an "adver
sary complaint" against defendant in the Bankruptcy Court. 4
As a result of that complaint, a bankruptcy judge perma
nently enjoined defendant from practicing law in the Bank
ruptcy Court.
In spite ofthat injunction, defendant declined to find
substitute counsel for Gwin and continued for a time as attor
ney of record in Gwin's bankruptcy case. Renn wrote to the
Oregon State Bar's Professional Liability Fund (the PLF),
suggesting that "repair counsel" be appointed to represent
plaintiff Gwin's interests and to prevent additional harm.
The PLF did not act on Renn's suggestion. Ultimately, the
Bankruptcy Court issued an order terminating defendant's
representation of Gwin.
Plaintiffs Gwin and Renn thereafter filed the pres
ent malpractice action against defendant, and hired Erin
Evers, an Oregon CPA and lawyer, to do what was necessary
to mitigate the damage that defendant's allegedly negligent
representation had caused. 5
In April 2007, plaintiffs moved for pretrial orders
allowing them to present at trial certain evidence, including
"mitigation-of-damage evidence that the PLF had worsened
plaintiffs' damages by failing to appoint repair counsel." In
" Defendant allegedly had "borrowed" money belonging to his clients in the
Bellows-Fairchild case from his client trust fund. Defendant's choice to file a Chap
ter 7 ( dissolution) bankruptcy petition in Gwin's case, rather than a Chapter 13
(reorganization) petition also allegedly was erroneous. Defendant also allegedly
was negligent in filing Gwin's bankruptcy petition after Waldron's judgment
already had attached to Gwin's real estate, including the home in which she lived
and carried on her business. Finally, defendant allegedly failed to accurately com
plete documents and had his clients sign them before they were complete.
4 Renn was the trustee in the individual cases. Lashinsky was his superior,
with authority over matters in several western states.
5 At around that same time, the Oregon State Bar filed disciplinary charges
against defendant, based on his conduct in Gwin's and other cases. In response,
defendant resigned from the Bar.

Cite as 344 Or 65 (2008) 69
support of that motion, plaintiffs submitted an affidavit from
Evers that stated that she had represented plaintiffs in an
attempt to remedy the financial problems caused by defen
dant, that she eventually was able to mitigate some of those
damages, that Gwin would incur mitigation costs "in the sum
of what is reasonably anticipated to be $35,000," and that, in
her opinion, Gwin's damages "would have been reduced if
[the PLF] had appointed repair counsel * * * in the spring of
2005."
In response to plaintiffs' pretrial motion, defendant
sought to depose Evers about the testimony in her affidavit,
including the activities that she had engaged in to assist
Gwin and the reasonableness of her charges for those activi
ties. Plaintiffs refused his request. Defendant then filed a
motion to compel pretrial examination of Evers, citing ORCP
36 and "basic principles of due process and the right to con
front witnesses." In arguing that motion to the trial court,
defendant indicated that he was not seeking to discover the
identity of an expert witness or the substance of an expert's
testimony, but that he merely wanted "to cross-examine
experts that plaintift1s] voluntarily identified [with respect
to] opinions and testimony that plaintift1s] voluntarily solic
ited and submitted to this court." Plaintiffs objected to defen
dant's motion, arguing (among other things) that Evers
would be testifying as an expert witness at the trial and that
the rules governing depositions did not allow discovery either
of the identity of expert witnesses or of the substance of their
opinions.
Before a hearing was held on the motion to compel,
defendant filed a motion for partial summary judgment argu
ing, among other things, that plaintiffs' claim for lost profits
was too speculative and that there was no evidence in the rec
ord to support plaintiffs' claim for $35,000 for costs incurred
in mitigation of damages. Plaintiffs responded to defendant's
motion with a second affidavit by Evers. In that affidavit,
Evers stated that, in her opinion, Gwin suffered a net loss of
profits in the sum of $85,000 caused by defendant's negli
gence, and that her opinion was " [b] ased on numerous hours
of legal and accounting services provided to !plaintiffs] , care
ful review of [plaintiffs'] financial records, and my discus
sions with government personnel." Evers also stated that, in

70 Gwin v. Lynn
her opm10n, plaintiffs incurred mitigation expenses in
the amount of $35,000 and that that amount was based on
( 1 ) attorney fees payed or owed to her, (2) a reasonable pro
jection of attorney fees to be incurred in mitigating some of
the damages caused by defendant, and (3) the cost of refi
nancing Gwin's residence, in order to clear the liens that had
resulted from defendant's tardy bankruptcy filing and inap
propriate decision to file under Chapter 7.
The trial court held a combined hearing on the
motion to compel and the summary judgment motion. At that
hearing, defendant sought to clarify his request, stating that
he was not saying that he could inquire about Evers's opin
ions, but only that he could inquire "about the facts that she
has personal knowledge of." The trial judge suggested that
the distinction that defendant was drawing was not one rec
ognized in law, and denied defendant's motion to compel.
Defendant then initiated the present proceeding by petition
ing this court for a writ of mandamus directing the trial court
to vacate its denial of defendant's motion to compel. This
court issued an alternative writ, and the trial court declined
to change its ruling.
Both parties recognize that ORCP 36 B contains the
controlling law. That rule provides, in part:
"Unless otherwise limited by order of the court in accor
dance with these rules, the scope of discovery is as follows:
"(1) For all forms of discovery, parties may inquire
regarding any matter, not privileged, which is relevant to
the claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any
books, documents, or other tangible things, and the identity
and location of persons having knowledge of any discovera
ble matter. It is not ground for objection that the informa
tion sought will be inadmissible at the trial if the informa
tion sought appears reasonably calculated to lead to
discovery of admissible evidence."
Defendant contends that he is entitled to depose
Evers under ORCP 36 B, because he is seeking discovery of a
matter, "not privileged, which is relevant to the claim or

Cite as 344 Or 65 (2008) 7 1
defense of [any party in the proceeding] ." Defendant
acknowledges that plaintiffs intend to use Evers as an expert
witness and that, as this court held in Stevens v. Czerniak,
336 Or 392, 84 P3d 140 (2004), ORCP 36 B does not authorize
trial courts to order pretrial disclosure of the identity and
intended testimony of expert witnesses. Defendant also
acknowledges that the trial court denied his request to
depose Evers on the specific ground that plaintiffs intended
to call Evers as an expert. D efendant argues, however, that
Stevens does not apply to all of Evers's potential testimony,
because she also is a "fact" witness, i.e. , she is involved in the
case in a direct and personal way, and not merely as an
expert.
In so arguing, defendant recognizes that OEC 702
defines an "expert" as a person who has "scientific, technical,
or other specialized knowledge [and whose testimony] will
assist the trier of fact to understand that evidence or to deter
mine a fact in issue." Defendant also acknowledges that
expert testimony is permitted where the issues are not
within the expertise of the ordinary lay juror and that, in
legal malpractice actions, expert testimony usually is permit
ted to establish the applicable standard of care. But, defen
dant argues, whether or not Evers will provide an expert
opinion about the applicable standard of care and whether
defendant's actions in representing Gwin met that standard,
the fact remains that Evers was personally and directly
involved with plaintiffs' mitigation efforts and, as such, has
knowledge of factual matters at issue in the case, including
"the actual amounts [that] she has collected from plaintiff
[Gwin] , the percentage of work that she has done for plain
tiff [Gwin] that she can fairly say was directed at mitigation
of damages, whether or not plaintiff [Gwin's] house was
ever refinanced, and which state employees she contacted
on behalf of plaintiffs in order to get additional patients for
plaintiff [Gwin's] home care business."
Defendant contends that those factual matters all are discov
erable under ORCP 36 B, and that the trial court erred in
concluding otherwise.

On its face, ORCP 36 B(l) would appear to extend a
right to depose or otherwise to obtain discovery from all
potential witnesses (whose testimony is not privileged),6
including expert witnesses. However, as this court has held,
legislative context and history establish ineluctably that the
scope of the rule was not intended to extend to expert wit
nesses. Stevens, 336 Or at 400-05. Still, nothing in the word
ing of the rule, the decision in Stevens, or in any other case of
which we are aware, suggests that a witness who has been
personally or directly involved in events relevant to a case
may not be deposed as to facts of which the witness has per
sonal knowledge, simply because that person will be, as to
other matters, an expert witness at trial. Gwin, the adverse
party in this mandamus proceeding, nonetheless contends
that the rule should be read in that way. We turn to a consid
eration of each of her arguments to that effect.
Gwin first asserts that, however defendant is char
acterizing his discovery efforts now, his real goal is, and
always has been, to cross-examine Evers about her opinions
as an expert. Gwin notes, in that regard, that defendant's
original motion in the trial court spoke of "cross-examin [ing]
experts that plaintiffis] voluntarily identified, [with respect
to] opinions and testimony that plaintiffis] voluntarily solic
ited and submitted to this court." However, the transcript
reveals that, before the trial court, defendant clearly drew a
distinction between Evers's anticipated role as an expert wit
ness and her role as an actor in and a witness to other events
that are relevant to plaintiffs' claims. Based on that record,
we conclude that defendant seeks only to identify and to
examine Evers concerning her personal involvement in those
events and facts that are within her personal knowledge as a
result of that involvement that are relevant or that may lead
to evidence that is relevant to the underlying action.
6 We emphasize that the issue before us in this case is limited to the question
whether, due solely to the fact that Evers will testify as an expert in the legal mal
practice proceeding against defendant, she a fortiori is immune from being deposed
respecting any facts that she may be aware of respecting any material issue in the
case. The present proceeding does not concern-and we express no opinion con
cerning-the possibility that some of Evers's testimony may be shielded by other
doctrines, such as the work-product doctrine or the lawyer-client privilege.

Cite as 344 Or
Gwin also suggests that, by insisting on discovery of
Evers's conduct in mitigating damages that defendant might
have caused, defendant essentially is trying to shift fault
away from himself "without bothering to name Evers as a
third party defendant." We find no merit in that argument.
Clearly, there is no basis for assuming that defendant would
attempt to name Evers as a third-party defendant in an
action that is concerned with damage allegedly caused by
defendant's negligence. That does not mean, however, that
the actions that Evers personally has taken on plaintiffs'
behalf for the purposes of mitigating damages are not facts
relevant to the case.
Gwin also argues more expansively that what defen
dant intends is "classic cross-examination of an expert"--con
duct that is prohibited under this court's interpretation of
ORCP 36 B in Stevens. In that regard, Gwin points out that
one typically cross-examines an expert by taking apart the
facts on which the expert bases her opinion and even
"chang[ing] the facts that the expert interprets to see how
that would change [the expert's] conclusion." But the "facts"
that defendant wants from Evers pertain to her direct
involvement in or her observation of and derivative knowl
edge of the relevant events, not to facts that either were or
will be presented to her primarily for the purpose of forming
and rendering an expert opinion.
Gwin also contends that, in any event, deposing
Evers as a fact witness would inevitably stray into the pro
hibited area of expert opinion. Indeed, Gwin goes so far as to
argue that "it boggles the mind to conjure a question that
does not go to the substance of Ms . Evers [expert] testimony,
as proscribed by Stevens. " We are not "boggled," however.
Indeed, it seems clear to us that one can distinguish ques
tions that, for example, call for answers about Evers's actions
as a factual participant in the effort to mitigate damages,
including her legal work for Gwin, from those that call for
answers about her expert opinions. And it also is true that, in
any instances in which the lawyer defending the deposition
believes that a question trespasses on Evers's expertise or
otherwise is impermissible, the lawyer specifically is author
ized by ORCP 39 D(3) to prevent the deponent from answer
ing. That subsection provides, in part:

74 Gwin v. Lynn
"All objections made at the time of the examination
shall be noted on the record. A party or deponent shall state
objections concisely and in a non-argumentative and non
suggestive manner. Evidence shall be taken subject to the
objection, except that a party may instruct a deponent not
to answer a question, and a deponent may decline to answer
a question, only:
"* * * * *
"(c) to preserve a privilege or constitutional or statu
tory right."
Moreover, it always is possible to obtain a trial court's ruling
on any objection, should either party to the deposition con
sider it necessary to obtain one. ORCP 39 E(l).
Gwin also contends that the treatment of expert
opinion in the Oregon Evidence Code supports the idea that
Evers's testimony should not be discoverable. Gwin notes
that the evidence rules pertaining to expert opinion testi
mony-spe cifically OEC 702, OEC 703, and OEC 705-con
template that experts might be required to disclose the facts
and data underpinning their opinions in voir dire (or, as is
often said in the present day, in response to questions put to
the supposed expert "in aid of objection")-but not through
discovery. See OEC 705 Commentary ( 1981 ) ("Thus, the court
may permit an adverse party to determine by voir dire
whether the requirements of Rule 703 are satisfied before an
expert offers an opinion."). But the fact that those rules may
permit uoir dire at trial does not mean that those rules, either
by their terms or any reasonable extension of those terms,
prohibit deposing the witness concerning facts that pertain to
the witness's direct involvement in or observation of the rel
evant events that are personally known by the witness and
that were not gathered primarily for the purpose of rendering
an expert opinion.
We think, moreover, that Gwin's argument, like sev
eral of her other arguments, assumes both that defendant
will not honor the limitation on his inquiry that he now
acknowledges he must observe and that the lawyer defend
ing the deposition will be unable to object and prevent any
incursion into the expert witness's thought processes. We

Cite as 344 Or 65 (2008) 75
have no reason to share Gwin's concerns as to the first mat
ter, and we have no basis for thinking that plaintiffs' very
capable and experienced lawyer will be unable to defend the
deposition adequately.
Finally, Gwin argues that most of the information
that defendant seeks to discover is protected under the attor
ney-client or work-product doctrine and, as such, is exempt
from discovery. As we already have indicated, 344 Or at
72 n 6, issues respecting those theories are beyond the scope
of this mandamus proceeding. Moreover, we are unper
suaded that the safeguards available to a party defending a
deposition under ORCP 39 D(3) and ORCP 39 E ( l ) are inad
equate and, even if they could be inadequate in a given case
(not this one), we do not understand how any such theoretical
difficulty could trump the clarity of the scope of discovery per
mitted under ORCP 36 B(l).
Based on the foregoing analysis and the wording of
the pertinent discovery rule, we hold that the trial court
erred in denying defendant any right to depose Evers. A per
emptory writ shall issue directing the trial judge to withdraw
his order denying defendant the right to depose witness
Evers. Any such deposition must, of course, be limited to evi
dence that Evers can provide as a fact witness, and must
observe the prohibition against pretrial deposition of expert
witnesses with respect to their anticipated expert testimony.
Peremptory writ to issue.