Greenwood Products v. Greenwood Forest Products

To justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must be such as, with reasonable diligence, could not have been discovered before or during the trial; (3) it must be such that it cannot, with reasonable diligence, be used during trial; (4) it must be material to an issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradicting of former evidence.

This case is on remand from the Oregon Supreme Court regarding the denial of Forest Products motion for a new trial. Forest Products was a wood products business with much of its inventory at numerous distribution centers. In 2002, Forest Products entered into an asset purchase agreement with Greenwood. In 2004, Forest Products brought a conversion action against a Greenwood employee for theft of assets. In 2005, Greenwood brought an action against Forest Products for breach of contract. In 2005, criminal charges were brought against the Greenwood employee. The Greenwood employee was found guilty and after the trial executed an affidavit, which was used by Forest Products to support their new trial motion on the breach of contract action. Forest Products motion was denied due to the trial courts untimely order. On appeal, the Court of Appeals found for Forest products. On review, the Supreme Court reversed. On remand, the Court found that Forest Products satisfied the requirements of ORCP 64 B(4) because the basis of the motion presented materially different material than the transcript, Forest Products could not have reasonably produced the evidence, and the new evidence was likely to change the result. Forest Products is entitled to a new trial on the breach of contract claim and the attorney’s fees are reversed. Cross-appeal affirmed.