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Here’s an appellate procedure question with a potentially significant impact on O’Donnell Clark & Crew’s elder abuse practice: Can a probate proceeding be used to garner discovery when a wrongful death action is on appeal? According to the Court of Appeals in Assisted Living Concepts, Inc. v. Fellows, A141912, (July 27, 2011), the answer is “yes”—at least under the appellate procedure used in that case.

An elderly woman died while in the care of Assisted Living Concepts (ALC). On her death, the family opened a probate proceeding and later filed a wrongful death action against ALC. Naturally, ALC was not part of the probate proceeding. In the wrongful death action, ALC moved to compel arbitration. After the arbitration motion was denied, the PR moved to compel the production of documents. Before the motion to compel could be heard, ALC filed a petition for review of the denial of the motion to compel arbitration—such motions are appealable under ORS 36.730(1)(a)—depriving the trial court of jurisdiction.

In a bit of creative lawyering that deserves honorable mention, the plaintiff’s lawyers turned around and issued a subpoena duces tecum in the probate case seeking the ALC documents that were sought in the motion to compel. The probate court granted the motion to compel the subpoena, and ALC quickly appealed from the order compelling it to produce the decedent’s medical records. The Court of Appeals granted a stay pending resolution of the interlocutory subpoena appeal.

In its opinion on the subpoena appeal, the Court of Appeals turned its attention to the interlocutory appeal statute, ORS 19.205, and tersely held that the order compelling production in the probate case does not “effectively determine[ ] the action so as to prevent a judgment in the action,” as required for an interlocutory appeal under ORS 19.205(2).

This holding is entirely consistent with interlocutory appeal precedent and the plain language of the statute. ALC played no role whatsoever in the probate proceeding, and no “effective judgment” could be entered against ALC in the probate proceedings. The typical path for an interlocutory appeal challenging a discovery order is a petition for writ of mandamus in the Oregon Supreme Court—the procedure used by the Boy Scouts in the long-running dispute over the publicization of the Scout’s “perversion” files. See Jack Doe 1 v. Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, (S058601, relators The Associated Press, et al.) (S058634, relator The Boy Scouts of America) (original mandamus proceedings involving order from Multnomah County Circuit Court).

In fact, the ruling in Fellows underscores the reason that mandamus is a viable form of relief in discovery dispute cases: there is no plain, adequate, or speedy remedy at law for erroneous discovery rules. Unfortunately for ALC, the timeframe for petitioning for a writ of mandamus on the subpoena issue has likely long passed.