Lindell v. Kalugin

Under ORCP 44A, the burden to establish good cause supporting a limitation or condition imposed on discovery is on the party requesting the limitation or condition. In a mandamus proceeding, the Court is limited to reviewing the trial court's decision for clear error.

This case arose out of a personal injury action. Kalugin requested Lindell undergo a medical examination pursuant to ORCP 44A. Lindell agreed to the examination on the condition he was able to bring a friend, family member or counsel to audio record the examination. The Court issued an alternative writ of mandamus directing the trial court permit Lindell to undergo the medical exam with his legal counsel present. The trial court respectfully refused to do so after finding Lindell failed to demonstrate good cause for the condition he requested. In response, Lindell petitioned the Court for a peremptory writ of mandamus permitting the presence of legal counsel in the medical examination. Lindell argued that under ORCP 44A, the burden of persuasion to show lack of "good cause" for conditions imposed on the medical examination should fall on the party requesting the medical examination and therefore, the trial court erroneously interpreted the rule. The Court determined that under ORCP 44A, the burden to establish good cause supporting a limitation or condition imposed on discovery is on the examinee. In a mandamus proceeding, the Court is limited to reviewing the trial court's decision for clear error. Based on the trial court's evaluation of the evidence offered by both parties, it committed no error in refusing to permit a 3rd party to attend the medical examination. The Court refused to grant the peremptory writ of mandamus and dismissed the alternative writ of mandamus.