I. H. v. Ammi

406

Argued and submitted September 23, a peremptory writ of mandamus shall

issue November 10, 2022

I. H.,

Petitioner-Relator,

v.

Azzdine Yahya AMMI,

Respondent-Adverse Party.

(CC 21PO10337) (SC S069072)

520 P3d 877

In a proceeding under the Family Abuse Prevention Act, the trial court

applied the exception to the certified advocate-victim privilege set out in OEC

507-1(3) to communications between relator and her advocate. The court issued

an order compelling production of a memory card containing videos of those com-

munications, as well as all other advocate-victim communications, and relator

challenged that order by petitioning for a writ of mandamus. Held: (1) The trial

court erred in applying the exception to the certified advocate-victim privilege;

and (2) the trial court’s order compelling production of the entire memory card

was unsupported and outside the permissible range of discretionary choices

available.

A peremptory writ of mandamus shall issue.

En Banc

Original proceeding in mandamus.*

Bernadette E. Valdellon, Legal Aid Services of Oregon,

Portland, argued the cause and filed the briefs for petitioner-

relator. Also on the briefs were Emily Brown-Sitnick,

Portland, and Emily Rena-Dozier, Oregon Law Center,

Portland.

Christopher Cauble, Cauble & Whittington, LLP, Grants

Pass, argued the cause and filed the brief for respondent-

adverse party. Also on the brief was Leigh Shepley Miranda,

Grants Pass.

Matthew J. Mertens, Perkins Coie LLP, Portland, filed

the brief for amici curiae Victim Rights Law Center, Oregon

Coalition Against Domestic and Sexual Violence, Oregon

______________

* On petition for alternative writ of mandamus from an order of the

Washington County Circuit Court, D. Charles Bailey, Judge.

Cite as 370 Or 406 (2022) 407

Attorney General’s Sexual Assault Task Force, National

Crime Victim Law Institute, and Oregon Crime Victims

Legal Center. Also on the brief were Julia E. Markley, Bryan

D. Beel, and Jessica Mindlin, Victim Rights Law Center,

Portland.

BALMER, J.

A peremptory writ of mandamus shall issue.

408 I. H. v. Ammi

BALMER, J.

This original mandamus proceeding involves the

scope and application of the certified advocate-victim privi-

lege, OEC 507-1.

Relator petitioned for a restraining order against her

husband (respondent) under the Family Abuse Prevention

Act (FAPA), ORS 107.700 - 107.735. During a hearing on her

petition, relator offered as exhibits six videos from a dash-

mounted camera in the parties’ car in connection with an

alleged incident of abuse. One of the videos showed relator

speaking on a cell phone to a “certified advocate,” who is

someone trained to support victims of certain kinds of vio-

lence and harassment. See OEC 507-1(1)(a) (defining “certi-

fied advocate” as someone who has “completed at least 40

hours of training in advocacy for victims of domestic vio-

lence, sexual assault or stalking, approved by the Attorney

General by rule,” and is “an employee or a volunteer of a

qualified victim services program”). That video exhibit was

offered to support relator’s testimony about her fear for her

physical safety. Relator also indicated that she had some-

times texted that advocate. Respondent requested produc-

tion of the entire memory card from the dash-mounted cam-

era, as well as “[a]ll correspondence, memoranda, e-mail,

text messages, recordings of any kind, and any other doc-

uments from any advocate assisting [relator] in this case

to [relator] or from [relator to her] advocate relating to the

alleged events in this case.”

Relator refused to produce those items. She argued,

as relevant here, that respondent’s request for the entire

memory card violated ORCP 36 because it was oppressive,

overly broad, and unduly burdensome, and was not “reason-

ably calculated to lead to the discovery of admissible evi-

dence.” Relator also argued that her communications with

her certified advocate were privileged under OEC 507-1.

On respondent’s motion, the trial court issued an

order compelling production of those items. The court’s

stated reason for the order read, in its entirety: “FAPA hear-

ings can lead to loss of liberty and Constitutional Freedoms.

Pre-trial discovery is a must.”

Cite as 370 Or 406 (2022) 409

Relator petitioned this court for a writ of manda-

mus seeking to vacate the trial court’s discovery order, and

concurrently moved for a stay of that order in the trial court.

The trial court denied the stay, citing OEC 507-1(3), which

limits the applicability of the certified advocate-victim priv-

ilege in certain circumstances. Relator continued to refuse

to produce the memory card and her communications with

her advocate, and, on respondent’s motion, the trial court

dismissed the FAPA proceeding as a sanction.

This court granted relator’s mandamus petition,

issued a peremptory writ directing the trial court to vacate

its order dismissing the FAPA proceeding, and issued an

alternative writ directing the court to vacate its order com-

pelling production or to show cause for not doing so. The

court vacated its order of dismissal and stayed the proceed-

ings, but it did not vacate its order compelling production.

We are presented with two questions. The first is

whether and to what extent the certified advocate-victim

privilege applies in this case. The second is whether the

request for production of the entire memory card violated

ORCP 36 C, such that the order compelling production was

an abuse of discretion by the trial court. See Longo v. Premo,

355 Or 525, 531, 326 P3d 1152 (2014) (“Mandamus may be

appropriate * * * when the trial court’s decision amounts to

fundamental legal error or is outside the permissible range of

discretionary choices available.” (Internal quotation marks

omitted.)). Because this case comes to us on mandamus, “our

task is not to conduct our own review of the facts; rather,

it is to decide whether the evidence in the record, assessed

under the correct legal standard, would have compelled a

decision in relator’s favor.” State ex rel Kristof v. Fagan, 369

Or 261, 279, 504 P3d 1163 (2022) (emphasis in original). As

to factual findings, “our function is to decide whether there

was any evidence to substantiate the circuit court’s ruling.”

State ex rel Ware v. Hieber, 267 Or 124, 127, 515 P2d 721

(1973).

We begin with the certified advocate-victim privi-

lege. OEC 507-1. That privilege was added to the Oregon

Evidence Code in 2015. Or Laws 2015, ch 265, § 2. Subsec-

tion (1) of OEC 507-1 defines, among other terms, “certified

410 I. H. v. Ammi

advocate” and “confidential communication.” Subsection (2)

then provides that certain advocate-victim communications

are privileged, and subsection (3) sets out an exception to

that privilege:

“(2) Except as provided in subsection (3) of this section,

a victim has a privilege to refuse to disclose and to prevent

any other person from disclosing:

“(a) Confidential communications made by the victim

to a certified advocate in the course of safety planning,

counseling, support or advocacy services.

“(b) Records that are created or maintained in the

course of providing services regarding the victim.

“(3) The privilege established by this section does not

apply to the disclosure of confidential communications,

only to the extent disclosure is necessary for defense, in

any civil, criminal or administrative action that is brought

against the certified advocate, or against the qualified vic-

tim services program, by or on behalf of the victim.”

In other words, advocate-victim communications are gener-

ally privileged and need not be disclosed, except in certain

cases brought by or on behalf of the victim against the certi-

fied advocate or qualified victim services program.

Here, relator asserted the certified advocate-victim

privilege in opposing respondent’s request for production of

relator’s communications with her advocate in the FAPA pro-

ceeding. The trial court nevertheless compelled production

of those communications. The court’s order did not address

the applicability of the privilege, noting only that discov-

ery was “a must.” The court revealed more of its reasoning

in its order denying relator’s motion to stay the proceed-

ings, where it cited the exception set out in OEC 507-1(3).

In quoting that section, however, the court omitted a critical

phrase: that the exception to the privilege applies only in

cases “against the certified advocate, or against the quali-

fied victim services program.”

The trial court’s interpretation and application of

subsection (3) was legal error. By its plain text, subsection (3)

does not apply here, because the underlying action was

not brought against the certified advocate or against the

Cite as 370 Or 406 (2022) 411

qualified victim services program. Relator’s FAPA proceed-

ing was brought against respondent, her husband, who is

neither the advocate nor the described program. We there-

fore turn to application of the privilege to the communica-

tions between relator and her certified advocate.

The parties dispute exactly what evidence here is

privileged under OEC 507-1 and whether relator waived all

or a part of that privilege by introducing certain evidence

during the FAPA proceedings. Those are legal questions

that depend on preliminary factual findings to be made by

the trial court. See OEC 104(1); State v. Langley, 314 Or 247,

263, 839 P2d 692 (1992), adh’d to on recons, 318 Or 28, 861

P2d 1012 (1993). Nothing in the record indicates that the

trial court ruled on the extent to which the privilege applies

to any specific communications between relator and her cer-

tified advocate. The court also did not rule on the extent

to which relator, by using certain video clips at the FAPA

hearing, may have waived that privilege under OEC 511 as

to some or all of her privileged communications.

As noted, the trial court based its order compelling

production on the exception in OEC 507-1(3) and the cryp-

tic statement that pretrial discovery “is a must” in FAPA

proceedings, which can lead to the “loss of liberty” and of

“Constitutional Freedoms.” We have concluded that apply-

ing the exception in OEC 507-1(3) was legal error. In later

proceedings before the trial court, the parties will have

an opportunity to build a factual record and to make legal

arguments regarding the application and potential waiver

of the privilege as to specific communications or other evi-

dence under OEC 507-1.

We turn to the memory card. The trial court com-

pelled production of the entire physical memory card. Relator

argues that respondent’s request for production of the mem-

ory card violates ORCP 36 because it is overly broad and

unduly burdensome.

ORCP 36, which governs discovery, generally allows

parties to “inquire regarding any matter, not privileged,

that is relevant” to any party’s claims or defenses. ORCP 36

B(1). The information sought, however, must be “reasonably

412 I. H. v. Ammi

calculated to lead to the discovery of admissible evidence.”

Id. On the motion of the party from whom discovery is

sought, ORCP 36 C(1) permits the trial court to restrict

or limit the terms and conditions of discovery, as “justice

requires[,] to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.”

The decision of whether to do so is discretionary. See Doe v.

Corp. of Presiding Bishop, 352 Or 77, 86, 280 P3d 377 (2012)

(“The issuance and vacation of protective orders are matters

of a trial court’s discretion.”). In these circumstances, for

mandamus to lie, as noted above, the trial court’s decision

must amount to “fundamental legal error” or be “outside the

permissible range of discretionary choices available.” Longo,

355 Or at 531 (internal quotation marks omitted).

At the FAPA hearing, relator offered six video

exhibits that were clips from six different videos on the

memory card. After they were admitted, relator provided

the full versions of those six videos, along with their meta-

data (including the time and date of each recording, as

logged by the camera) to respondent. In his first request for

production, respondent asked for “[t]he unaltered memory

card from the dash camera of the parties[’] vehicle.” Relator

objected, explaining that the memory card included numer-

ous additional videos, none of which was relevant or submit-

ted as evidence at the hearing. Relator further explained

that divulging the videos to respondent could expose relator

to further danger of abuse by informing respondent about

relator’s destinations, traveling times, and whereabouts.

In respondent’s motion to compel, he cited OEC 106,

which he called the “Rule of Completeness,” and argued that

he was entitled to inspect the entire memory card because

relator had introduced parts of files that were stored on that

card. As noted above, the trial court granted the motion to

compel without addressing ORCP 36 C or OEC 106.

OEC 106, the rule respondent relies upon, does not

compel the result that respondent seeks. OEC 106 provides:

“When part of an act, declaration, conversation or writ-

ing is given in evidence by one party, the whole on the same

subject, where otherwise admissible, may at that time be

inquired into by the other; when a letter is read, the answer

Cite as 370 Or 406 (2022) 413

may at that time be given; and when a detached act, dec-

laration, conversation or writing is given in evidence, any

other act, declaration, conversation or writing which is

necessary to make it understood may at that time also be

given in evidence.”

Assuming without deciding that OEC 106—an evidentiary

rule regarding admissibility, not discovery—applies here, it

would not extend so far as to require producing the entire

memory card as part of discovery. Relator concedes that,

as applied to this case, OEC 106 required relator to pro-

vide respondent with the complete videos from which the

evidentiary clips admitted into evidence were taken, and it

appears that she has already produced those videos. The

other videos on the memory card, however, are not part of

the same “act, declaration, conversation or writing,” nor are

they “necessary to make [the offered clips] understood.”

OEC 106. Therefore, OEC 106 does not support compelling

production of the entire memory card.

Because, contrary to respondent’s position, OEC

106 does not require relator to produce the physical memory

card itself, the trial court was presented with no meritorious

argument to support compelling production. Without such

an argument, and with no alternative explanation from the

court for its ruling, the court’s order to produce the memory

card is legally unsupported and cannot stand. It is possi-

ble that further proceedings before the court could provide

a factual and legal basis for production, with appropriate

limitations or restrictions, of the memory card or the infor-

mation it contains, but the current record provides no such

grounds. On this record, the order compelling production

must be vacated.

A peremptory writ of mandamus shall issue.