Gwin v. Lynn, 344 Or 65, 176 P3d 1249 (2008)

Brief Summary
A fact witness who is also an expert witness may be deposed as a fact witness even if expert discovery is not permitted.

Summary
Attorney Elliott Lynn represented plaintiff Deanna Gwin in her bankruptcy. Gwin subsequently sued Lynn for malpractice during the bankruptcy representation. After Lynn was removed from the bankruptcy proceeding, but before Gwin brought suit, Gwin hired an attorney and CPA, Erin Evers, to help mitigate the damages allegedly caused by Lynn. In the malpractice proceeding, Gwin sought to use Evers as an expert witness.

In Oregon, expert witness discovery generally is not permitted. Because Evers also had factual knowledge relevant to the malpractice action, Lynn sought to depose Evers as a fact witness. The trial court held that Evers could not be both an expert witness and a fact witness, and that, because plaintiff intended to use her as an expert, Evers could not be deposed.

At Lynn’s request, the Oregon Supreme Court issued a peremptory writ allowing him to depose Evers. The court reasoned that although Oregon does not generally allow depositions of experts, Evers could be deposed as a fact witness. The distinction between Evers’s role as an expert and her role as a fact witness is clear. The court also noted that if the deposition were to stray into the territory of Evers’s expert opinions, Gwin could prevent Evers from answering under ORCP 39(D)(3)(c).

Significance of Opinion
This precise problem would not exist in the majority of jurisdictions which, unlike Oregon, allow expert depositions. The opinion does, however, prevent parties from taking key fact witnesses out of the fact discovery process by calling them experts.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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Impaired and Poorly Behaving Partners: Managing the Risks

July 16, 2008, Noon-1:30 pm EST

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