FILED: January 31, 2008
IN THE SUPREME COURT OF THE STATE OF OREGON
DEANNA GWIN,
Plaintiff-Adverse Party,
and
THOMAS RENN,
Plaintiff,
v.
ELLIOTT LYNN,
Defendant-Relator.
(CC 0512-13274; SC S055234)
En Banc
Original proceeding in mandamus.*
Argued and submitted January 3, 2008.
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.
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" witness (1) 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 witness and an expert witness and, based
on assurances by the objecting 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
witness 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 witness 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 malpractice arising out of the
following facts:  In January 2003, plaintiff 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 represented
Gwin in a bankruptcy proceeding, which defendant initiated by filing a Chapter 7
(dissolution) bankruptcy petition.  
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 handling of both cases. (3)  At Renn's insistence, the
United States Trustee in Bankruptcy, Ilene Lashinsky, brought an "adversary complaint"
against defendant in the Bankruptcy Court. (4)  As a result of that complaint, a
bankruptcy judge permanently enjoined defendant from practicing law in the Bankruptcy
Court.  
In spite of that injunction, defendant declined to find substitute counsel for
Gwin and continued for a time as attorney 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 present 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 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 defendant, 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 activities.  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 confront 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 plaintiff[s] voluntarily identified
[with respect to] opinions and testimony that plaintiff[s] voluntarily solicited and
submitted to this court."  Plaintiffs objected to defendant'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 arguing, among other things,  that plaintiffs' claim
for lost profits was too speculative and that there was no evidence in the record 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 negligence, and that her opinion was "[b]ased on numerous hours
of legal and accounting services provided to [plaintiffs], careful review of [plaintiffs']
financial records, and my discussions with government personnel."  Evers also stated that,
in her opinion, 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
projection of attorney fees to be incurred in mitigating some of the damages caused by
defendant, and (3) the cost of refinancing Gwin's residence, in order to clear the liens that
had resulted from defendant's tardy bankruptcy filing and inappropriate 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 opinions, 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 recognized in law,
and denied defendant's motion to compel.  Defendant then initiated the present
proceeding by petitioning 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 accordance 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 discoverable matter.  It is not ground for
objection that the information sought will be inadmissible at the trial if the
information 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 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.  Defendant 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 determine 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 permitted to establish the applicable standard of care.  But,
defendant 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 plaintiff [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 discoverable under ORCP 36 B, and
that the trial court erred in concluding otherwise.
On its face, ORCP 36 B(1) 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 witnesses.  Stevens, 336 Or at 400-05.  Still, nothing in the wording 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 personal 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 consideration of each of her arguments to that effect.
Gwin first asserts that, however defendant is characterizing 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 plaintiff[s] voluntarily identified,
[with respect to] opinions and testimony that plaintiff[s] voluntarily solicited 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 witness
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.  
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 defendant intends is "classic
cross-examination of an expert" -- conduct 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 knowledge 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 prohibited 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 questions 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 authorized by ORCP 39 D(3) to
prevent the deponent from answering.  That subsection provides:

"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 statutory right."

Moreover, it always is possible to obtain a trial court's ruling on any objection, should
either party to the deposition consider it necessary to obtain one.  ORCP 39 E(1).  
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 testimony -- specifically OEC
702, OEC 703, and OEC 705 --  contemplate 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 voir 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 relevant 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 several 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 defending the deposition will
be unable to object and prevent any incursion into the expert witness's thought processes. 
We have no reason to share Gwin's concerns as to the first matter, 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 attorney-client or work-product doctrine and, as such, is
exempt from discovery.  As we already have indicated, ___ Or at ___ (slip op at 7-8 n 6),
issues respecting those theories are beyond the scope of this mandamus proceeding. 
Moreover, we are unpersuaded that the safeguards available to a party defending a
deposition under ORCP 39 D(3) and ORCP 39 E(1) are inadequate 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 permitted under
ORCP 36 B(1).  
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
peremptory 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 evidence 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.


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 rendering an expert opinion
in that trial.
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2. The text of ORCP 36 B is set out later in this opinion, ___ Or at ___ (slip
op at 6).
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3. 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 Chapter 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 complete documents and had his clients sign them
before they were complete.  
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4. Renn was the trustee in the individual cases.  Lashinsky was his superior,
with authority over matters in several western states.
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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.   
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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 malpractice
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 concerning -- 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.
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