OAR 350-016-0120. Depositions; Site Visits; Subpoenas of Material Witnesses; Other Forms of Discovery

(1) Depositions. On petition of any party to a contested case, the Gorge Commission may order that the testimony of any material witness may be taken by deposition in the manner prescribed by law for depositions in civil actions. Depositions may also be taken by the use of audio or audio-visual recordings. The petition shall set forth the name and address of the witness whose testimony is desired, a showing of the materiality of the testimony of the witness, and a request for an order that the testimony of such witness be taken before an officer named in the petition for that purpose. If the witness resides in Oregon or Washington and is unwilling to appear, the Gorge Commission may issue a subpoena, requiring his appearance. (2) Site Visits. On petition of any party to a contested case the Gorge Commission may order that the party be allowed an opportunity to visit the property that is the subject of a contested case before the Gorge Commission. The petition shall set forth the name, address and telephone number of the person or persons who will visit the property and a showing of the materiality of the evidence to be obtained from the visit. The applicant, the owner of the property, or a representative shall be entitled to accompany the petitioning party while on the property and shall be given access to any written report or notes from the site visit prepared for the petitioning party that is not subject to protection under the attorney-client privilege, other law, or Gorge Commission rule or order. (3) Subpoenas (a) The Gorge Commission may issue subpoenas on its own motion in a contested case. In addition, the Gorge Commission may issue subpoenas to any party to a contested case upon request of a party upon a showing of general relevance and reasonable scope of the evidence sought. A party entitled to have witnesses on behalf of the party may have subpoenas issued by an attorney of record of the party, subscribed by the signature of the attorney. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the Gorge Commission, shall receive fees and mileage as prescribed by law for witnesses in civil actions. (b) If any person fails to comply with any subpoena so issued or any party or witness refuses to testify on any matters on which the party or witness may be lawfully interrogated, the Gorge Commission or the attorney issuing the subpoena may enforce the subpoena as provided in ORS 183.440 or RCW 34.05.588. (4) Other forms of discovery. On petition of any party to a contested case, the Gorge Commission may allow admissions or other forms of discovery prescribed by law in civil actions for the state where the property at issue is located. (5) The Gorge Commission may allow petitions to take depositions, for subpoenas, for site visits, or other forms of discovery as specified in sections (1) to (4) of this rule upon a showing of necessity and unavailability by other means. In determining whether to allow the petition the Gorge Commission shall consider: (a) Whether all parties are represented by counsel; (b) Whether undue expense or delay in bringing the matter to hearing will result; (c) Whether the discovery will promote the orderly and prompt conduct of the proceeding; and (d) Whether the interests of justice will be promoted. (6) The Gorge Commission may issue protective orders limiting public disclosure of information that is confidential or privileged by law or necessary to protect the safety of persons or property. A Tribe’s traditional cultural practices, enjoyment of treaty reserved rights, the locations of traditional sites, structures, lands, and places of cultural and spiritual significance that a tribe holds sacred, and similar sensitive information are considered confidential under this section unless the governing body of the Tribe expressly waives confidentiality.