Seizure or production of papers, documents or records from recipient
(1)Notwithstanding ORS 136.557 (Issuance of subpoena by magistrate for witnesses at preliminary examination), 136.563 (Issuance of subpoena by district attorney for witnesses before grand jury), 136.565 (Issuance of subpoena by district attorney for witnesses at trial) or 136.567 (Issuance of subpoena for witnesses for defendant) and subject to ORS 136.580 (Subpoenas when books, papers or documents are required) (2), criminal process authorizing or commanding the seizure or production of papers, documents, records or other things may be issued to a recipient, regardless of whether the recipient or the papers, documents, records or things are located within this state, if:
(a)The criminal matter is triable in Oregon under ORS 131.205 (Definition for ORS 131.205 to 131.235) to 131.235 (Criminal homicide); and
(b)The exercise of jurisdiction over the recipient is not inconsistent with the Constitution of this state or the Constitution of the United States.
(2)Criminal process that authorizes or commands the seizure or production of papers, documents, records or other things from a recipient may be served by:
(a)Delivering a copy to the recipient personally; or
(b)Sending a copy by:
(A)Certified or registered mail, return receipt requested;
(B)Express mail; or
(C)Facsimile or electronic transmission, if the copy is sent in a manner that provides proof of delivery.
(3)When criminal process is served under subsection (2) of this section, the recipient shall provide the applicant, or if the process is described in ORS 136.447 (Medical records) or 136.580 (Subpoenas when books, papers or documents are required) (2), the court, with all of the papers, documents, records or other things described in the criminal process within 20 business days from the date the criminal process is received, unless:
(a)The court, for good cause shown, includes in the process a requirement for production within a period of time that is less than 20 business days;
(b)The court, for good cause shown, extends the time for production to a period of time that is more than 20 business days; or
(c)The applicant consents to a request from the recipient for additional time to comply with the process.
(4)A recipient who seeks to quash or otherwise challenge the criminal process must seek relief from the court that issued the process within the time required for production. The court shall hear and decide the issue as soon as practicable. The consent of the applicant to additional time to comply with the process under subsection (3)(c) of this section does not extend the date by which a recipient must seek relief under this subsection.
(5)Criminal process issued under this section must contain a notice on the first page of the document that indicates:
(a)That the process was issued under this section;
(b)The date before which the recipient must respond to the process; and
(c)That the deadline for seeking relief is not altered by the applicant’s consent to additional time to respond to the process.
(6)Upon order of the court or the written request of the applicant, the recipient of the process shall verify the authenticity of the papers, documents, records or other things that the recipient produces in response to the criminal process by providing an affidavit or declaration that includes contact information for the custodian or other qualified person completing the document and attests to the nature of the papers, documents, records or other things. An affidavit or declaration that complies with this subsection may fulfill the requirements of ORS 40.460 (Rule 803. Hearsay exceptions) (6), 40.505 (Rule 901. Requirement of authentication or identification) and 132.320 (Consideration of evidence).
(7)A party that intends to offer a paper, document, record or other thing into evidence under this section must file written notice of that intention with the court and must disclose the affidavit or declaration sufficiently in advance of offering the paper, document, record or other thing into evidence to provide the adverse party with an opportunity to challenge the affidavit or declaration and to have that challenge determined without prejudice to the ability of the moving party to produce the custodian or other qualified person at trial. A motion opposing admission of the paper, document, record or other thing into evidence must be filed and determined by the court before trial and with sufficient time to allow the party offering the paper, document, record or other thing, if the motion is granted, to produce the custodian of the record or other qualified person at trial, without creating a hardship on the party or the custodian or other qualified person.
(8)Failure by a party that receives notice under subsection (7) of this section to timely file a motion opposing admission of the paper, document, record or other thing constitutes a waiver of objection to the admission of the evidence on the basis of the insufficiency of the affidavit or declaration unless the court finds good cause to grant relief from the waiver. If the court grants relief from the waiver, the court shall order the trial continued upon the request of the proponent of the evidence and allow the proponent sufficient time to arrange for the necessary witness to appear.
(9)A recipient of criminal process under this section or any individual that responds to the process is immune from civil and criminal liability for complying with the process and for any failure to provide notice of any disclosure to a person who is the subject of, or identified in, the disclosure.
(10)Nothing in this section limits the authority of a court to issue criminal process under any other provision of law or prohibits a party from calling the custodian of the evidence or other qualified person to testify regarding the evidence.
(11)As used in this section:
(A)A police officer or district attorney who applies for a search warrant or other court order or seeks to issue a subpoena under this section; or
(B)A defense attorney who applies for a court order or seeks to issue a subpoena under this section.
(b)“Criminal process” means a subpoena, search warrant or other court order.
(c)“Declaration” means a declaration under penalty of perjury under ORCP 1 E or an unsworn declaration under ORS 194.800 (Short title) to 194.835 (Relation to Electronic Signatures in Global and National Commerce Act), if the declarant is physically outside the boundaries of the United States.
(d)“Defense attorney” means an attorney of record for a person charged with a crime who is seeking the issuance of criminal process for the defense of the criminal case.
(e)“Recipient” means a business entity or nonprofit entity that has conducted business or engaged in transactions occurring at least in part in this state. [2009 c.617 §1; 2013 c.218 §17]
Notes of Decisions
Where Oregon has personal jurisdiction over out of state business that does business in Oregon by providing electronic mail services to Oregon residents, Oregon court is authorized under this section to issue search warrant to out of state business for records located out of state. State v. Rose, 264 Or App 95, 330 P3d 680 (2014), Sup Ct review denied
Where search warrant clearly identified defendant's electronic mail account as place to search and evidence of crimes of using child in display of sexually explicit conduct and of encouraging child sexual abuse but did not identify date parameters for search, warrant was specific enough to meet constitutional requirements of this section. State v. Rose, 264 Or App 95, 330 P3d 680 (2014), Sup Ct review denied