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OREGONWalter H. SweekNicholas E. WheelerCOSGRAVE VERGEER KESTER, LLP500 Pioneer Tower888 SW Fifth AvenuePortland, OR 97204Phone (503) 323-9000www.cosgravelaw.comwsweek@cosgravelaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Oregon’s lawyer-client privilege and work product doctrine encompass pre-suitinvestigation materials. United Pac. Ins. Co. v. Trachsel, 83 Or. App. 401, 731 P.2d1059 (1987). Preserving the lawyer-client privilege requires a “confidentialcommunication” between: (1) clients/“client representatives” and their lawyer/“lawyerrepresentatives,” (2) lawyers and “lawyer representatives” of the same client, and (3)the client and/or lawyer to another’s lawyer “in a matter of common interest.” O.E.C.503(2). Preserving the work product doctrine requires a showing that the investigationmaterials were “prepared in anticipation of litigation.” O.R.C.P. 36 B(3). However, workproduct immunity can be overcome by a showing that “the party seeking discovery hassubstantial need of the materials in the preparation of such party’s case and is unablewithout undue hardship to obtain the substantial equivalent of the materials by othermeans.” Id. If that showing can be made, the court must nonetheless “protect againstdisclosure of the mental impressions, conclusions, opinions, or legal theories of anattorney or other representative of a party concerning the litigation.” Id.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Written or recorded statements taken during the investigation of an incident are typicallywork product. Although not a state-wide rule, Multnomah County (Portland) typicallypermits discovery of such statements taken during the first 24 hours following theincident, if there is an inability to obtain a substantial equivalent. Mult. Co. Motion PanelStatement of Consensus, Section 2.I.2 (February 1, 2013). Further, any person(whether or not a party), is entitled to a copy of his/her own statement. O.R.C.P. 36B(3).