71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
 
                            Enrolled
 
                         House Bill 2372
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Joint Interim Judiciary
  Committee for the Procedure and Practice Committee of the
  Oregon State Bar)
 
 
                     CHAPTER ................
 
 
                             AN ACT
 
 
Relating to testimony in civil trials; amending ORS 45.400.
 
Be It Enacted by the People of the State of Oregon:
 
  SECTION 1. ORS 45.400 is amended to read:
  45.400. (1) Upon motion of any party and for good cause shown,
the court may order that the testimony of the party or any
witness for the moving party be taken by telephone or by other
two-way electronic communication device in any   { - nonjury - }
civil proceeding  { - , juvenile dependency proceeding or
termination of parental rights proceeding - } .
  (2) A party filing a motion under this section must give
written notice to all other parties to the proceeding at least 30
days before the trial or hearing at which the telephone testimony
will be offered. The court may allow written notice less than 30
days before the trial or hearing for good cause shown.
  (3)  { + Except as provided under subsection (4) of this
section, + } the court shall allow telephone testimony under this
section upon a showing of good cause   { - unless the court
determines that: - }  { + . The court may not allow the use of
telephone testimony in any case if: + }
  (a) The ability to evaluate the credibility and demeanor of a
witness or party in person is critical to the outcome of the
proceeding;
  (b) The issue or issues the witness or party will testify about
are so determinative of the outcome that face-to-face
cross-examination is necessary;
  (c) A perpetuation deposition under ORCP 39 I is a more
practical means of presenting the testimony;
  (d) The exhibits or documents the witness or party will testify
about are too voluminous to make telephone testimony practical;
  (e) Facilities   { - are not available - }  that would permit
the taking of telephone testimony { +  are not available + };
  (f) The failure of the witness or party to appear personally
will result in substantial prejudice to a party to the
proceeding; or
  (g) Other circumstances exist that require the personal
appearance of a witness or party.
   { +  (4) The court may not allow use of telephone testimony in
a jury trial unless good cause is shown and there is a compelling
need for the use of telephone testimony. + }
 
 
Enrolled House Bill 2372 (HB 2372-A)                       Page 1
 
 
 
    { - (4) - }  { +  (5) + }   { - Notwithstanding subsection
(3)(e) of this section, the court shall order that telephone
testimony be taken under this section if the party filing the
motion establishes that alternative procedures or technologies
allow the taking of telephone testimony. - }   { + The court may
not prohibit the use of telephone testimony solely by reason of
the provisions of subsection (3)(e) of this section if the party
filing the motion establishes that alternative procedures or
technologies allow the taking of telephone testimony. + }
    { - (5) - }  { +  (6) + } A party filing a motion for
telephone testimony under this section must pay all costs of the
telephone testimony, including the costs of alternative
procedures or technologies used for the taking of telephone
testimony. No part of those costs may be recovered by the party
filing the motions as costs and disbursements in the proceeding.
    { - (6) - }  { +  (7) + } Factors that a court may consider
that would support a finding of good cause for the purpose of a
motion under this section include:
  (a) The witness or party might be unavailable because of age,
infirmity or mental or physical illness;
  (b) The party filing the motion seeks to take the telephone
testimony of a witness whose attendance the party has been unable
to secure by process or other reasonable means;
  (c) A personal appearance by the party or witness would be an
undue hardship on the party or witness; or
  (d) Any other circumstances that constitute good cause.
    { - (7) - }  { +  (8) + } This section does not apply to a
workers' compensation hearing or to any other administrative
proceeding.
    { - (8) - }  { +  (9) + } For purposes of this section,
'telephone testimony' means testimony given by telephone or by
any other two-way electronic communication device, including but
not limited to satellite, cellular or other interactive
communication device.
                         ----------
 
 
Passed by House April 18, 2001
 
 
      ...........................................................
                                             Chief Clerk of House
 
      ...........................................................
                                                 Speaker of House
 
Passed by Senate May 22, 2001
 
 
      ...........................................................
                                              President of Senate
 
 
 
 
 
 
 
 
 
 
 
Enrolled House Bill 2372 (HB 2372-A)                       Page 2
 
 
 
 
 
Received by Governor:
 
......M.,............., 2001
 
Approved:
 
......M.,............., 2001
 
 
      ...........................................................
                                                         Governor
 
Filed in Office of Secretary of State:
 
......M.,............., 2001
 
 
      ...........................................................
                                               Secretary of State
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Enrolled House Bill 2372 (HB 2372-A)                       Page 3