The annual review of the Rules of Civil Procedure and other rules of court by the Supreme Court Commission on the Rules of Practice and Procedure led to significant amendments to the Ohio Rules of Civil Procedure, which took effect on July 1, 2020. These amendments were recommended to the Ohio Supreme Court last fall by the Commission and published to obtain and consider public comment.
In accordance with the Ohio Constitution, the amendments were submitted to the General Assembly on January 15th, and again on March 12th and April 22nd. The additional dates indicate revisions made in consideration of public comment. The Supreme Court had until April 30th to make any revisions and file amendments. The procedure is that unless the Ohio General Assembly adopts a concurrent resolution of disapproval before July 1st, the amendments take effect on July 1st.
Key amendments to the Ohio Civil Rules of Civil Procedure were made to:
Rule 4.7 (NEW rule) Waiver of Service
Rule 16 (NEW rule) Pretrial Conferences, Final Pretrial Conferences and Scheduling Orders
Rule 26 (Amended) Initial Disclosures of Information, Disclosures of Expert Testimony
Rule 26 (Amended) Discovery Generally and Electronically Stored Information (ESI)
Rule 53 (Amended) Jury Trials before a Magistrate
The Ohio Rules of Civil Procedure prescribe the procedure to be followed in all state courts in Ohio that exercise civil jurisdiction. These amendments more closely conform the Ohio rules to the rules and practice in federal courts. The amendments effective July 1, 2020 apply to all actions filed on or after July 1, 2020 and to all pending actions. Where the amendment would not be feasible or would work injustice, the former version of the rules would apply.
Practice Pointer: The newly effective amendments present changes and challenges for Ohio attorneys. Attorneys should note many changes to time periods applicable to case scheduling, motion and discovery deadlines. It will be a good idea to build these into your case calendaring system.
Rule 4.7 Process: Waiving Service
This is a new rule based on the federal rule permitting waiver of service. The rule states that the defendant has a duty to avoid costs associated with service of a summons. The rule further sets out the requirements of a Notice and Request for Waiver to put a cost-shifting provision in place, and provides the forms for Notice of a Lawsuit, Request to Waive Service of Summons and for Waiver of the Service of Summons. If the defendant waives service of process, defendant has sixty days from the date the plaintiff sent the request for waiver to file an answer rather than the usual twenty-eight days after formal service.
Other provisions of Rule 4.7 specify that waiving service of summons does not waive any objection to jurisdiction or to venue. There is also a provision that defendant will have an opportunity to show good cause for failing to waive service, but the Staff Notes indicate that should be rare. The rule also states the waiver of service provisions are limited to civil actions filed in the Courts of Common Pleas and do not apply to civil protection orders per Civil Rule 65.1.
Practice Pointer: This new rule can be both a cost-shifting and time extending rule. The new forms should be carefully read and incorporated into the firm’s form data base. Dates should be closely monitored to timely file the required responsive pleadings.
Rule 16 Pretrial Procedure
New Rule 16 entirely replaces the former Rule 16. Again, the amendment brings the Ohio rule closer to the federal rule. The rule discusses the purposes of a Pretrial Conference and sets the parameters for the Court to issue a scheduling order.
The new rule requires that the court shall issue the scheduling order as soon as practicable. Unless the court finds good cause for delay, it shall issue the scheduling order within the earlier of ninety days after the defendant was served with the complaint or sixty days after the defendant responded to the complaint. The Staff Notes indicate the purpose of the requirement for the scheduling order is to promote greater consistency, predictability and transparency for attorneys, parties and unrepresented parties in Ohio courts.
The rule provides that after any pretrial conference, the court should issue a pretrial order reciting the action taken that will control the course of action unless the court modifies the order. The rule also allows for a final pretrial conference to formulate a trial plan. This conference must be held as close to the start of trial as reasonable and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party.
Practice Pointer: While attendance at a pretrial conference may be in person or by other means, the requirements of the rule will mandate that attorneys coordinate trial calendars to reserve availability of at least one trial team member to attend final pretrial conferences. Calculation of upcoming dates will become paramount to avoid complications with overlapping litigation dates.
Rule 26 General Provisions Governing Discovery
Perhaps the most extensive changes were made to Rule 26 to bring it closer to the federal rule.
Rule 26 (B) Scope of Discovery (1) In General
Amended to include proportionality and greater judicial involvement in the discovery process. The Staff Notes cite the scope of available information, including the increase and pervasiveness of electronically stored information (ESI), the potential cost of wide-ranging discovery and the potential for discovery to be used as a tool for delay or oppression in the need for continuing and close judicial involvement in some cases.
The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is deleted and replaced by “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
The rule now provides, unless otherwise limited by court order, that the parties may obtain discovery of nonprivileged matters relevant to any party’s claim or defense and proportional to the needs of the case considering:
- the importance of the issues at stake in the action
- the amount in controversy
- the parties’ relative access to relevant information
- the parties’ resources
- the importance of the discovery in resolving the issues
- whether the burden or expense of the proposed discovery outweighs its likely benefit
Practice Pointer: The rule acknowledges “information asymmetry” where one party – often an individual plaintiff – may have little discoverable information. This factor, when also considered with discovery of ESI, may impact discovery costs and production.
Rule 26 (B)(3) Initial Disclosure by a Party
This closely tracks the federal rule and requires that in most cases, parties exchange initial disclosures without waiting for discovery requests. A party must make the initial disclosures no later than the parties’ first pre-trial or case management conference, unless a different time is set by stipulation or court order, or unless a party objects.
In initial disclosures, parties are required to identify:
- the name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information
- a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses
- a computation of each category of damages claimed by the disclosing party and the documents or other evidentiary material on which each computation is based, including the nature and extent of injuries suffered; and
- any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments to satisfy the judgment.
Practice Pointer: This is all new language in the rule. It will present a major change for attorneys practicing in Common Pleas Courts who had limited or no experience with the federal rules. The Staff Notes reflect that the purpose of the initial disclosure obligation is to accelerate the exchange of information about the case.
Rule 26(B)(5) Specific Limitations on Electronically Stored Information (ESI)
The amendments to (B)(5) indicate that a party need not provide discovery of ESI from sources the party identifies as not reasonably accessible because of undue burden or cost. The court may still order production upon a showing of good cause. However, the amendment eliminates the prior factors for determining if good cause exists and relies on the general concepts of proportionality in Rule 26.
Practice Pointer: While the limitations on production of ESI remain with this amendment if there are considerations about undue burden or cost, determination of production for good cause will be made using the general concept of proportionality. This will necessitate a different approach to prepare to challenge or succeed in showing good cause.
Rule 26(B)(6) Limitations on Frequency and Extent
The new language in this rule makes it clear that the court may place limitations on discovery: When permitted – By order, the Court may limit the number of depositions, Rule 36 requests and interrogatories or the length of depositions.
When required – On motion or on its own, the court must limit the frequency or extent of discovery allowed by these rules or by local rule, if the court determines that:
- the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
- the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
- the proposed discovery is outside the scope permitted by Rule 26(B)(1).
Practice Pointer: Again, this language is similar to language in the federal rule, but may represent changes for state court practitioners, especially if there were no local rules on this subject. The authority for courts to modify the frequency and extent of discovery include considerations of proportionality.
Rule 26(B)(7) Disclosure of Expert Testimony
The extensive new language in this section now requires written reports of expert witnesses expected to be called by each party. While some local rules required a written report, the Ohio Civil Rules did not previously require experts provide a written report.
With this change, similar to the federal rule, other than healthcare providers as specified in (B)(7)(d), a party may not call an expert witness to testify unless a written report from the witness has been provided to the opposing counsel. Further, unless the expert is a healthcare provider pursuant to (B)(7)(d), a party may take a discovery deposition of the opponent’s expert witness only after the mutual exchange of reports.
Practice Pointer: If an attorney practiced in a court without this requirement in the local rules, it will represent a substantial change. Time for obtaining the written expert report will need to be added to the litigation calendar as that sets up other discovery.
Rule 26(F) Conference of the Parties; Planning for Discovery
This is an entirely new section that requires that attorneys and unrepresented parties have a meeting early in the case. The rule says this timeframe is “as soon as practicable – and in any event no later than 21 days before a scheduling conference.”
The rule also sets out the parameters of the conference and the proposed discovery plan that the attorneys of record and all unrepresented parties are to attempt in good faith to agree upon. A written report to be filed with the court within 14 days after the conference outlining the plan is the joint responsibility of the attorneys and unrepresented parties. The court may order the parties or attorneys to attend the conference in person.
Practice Pointer: This new section will require new steps in the conference of parties and setting out a Discovery Plan. The Staff Notes offer a detailed comparison of the new language in Ohio Civil Rule 26(F) and Federal Civil Rule 26(F). If you are an attorney familiar with the federal rules, you will want to read these differences.
Rule 53 Magistrates
New language in Rule 53(C) Authority (2) Jury trials before Magistrates, simplifies the procedure following jury trials conducted by magistrates upon unanimous consent of the parties. The trial judge originally assigned shall enter judgment consistent with the magistrate’s journalized entry, but the judge shall not otherwise review the magistrate’s rulings or a jury’s factual findings in a trial before a magistrate.
Practice Pointer: The Staff Notes highlight that a major improvement to the federal practice was authorization for magistrate judges to conduct civil jury trials. While Ohio followed that lead, it retained a procedure that essentially gave the first line of appeal to the trial court. If the parties unanimously agree, this new rule will provide a more expedient jury trial before the magistrate.
With these extensive changes to the Civil Rules, it is OBLIC’s suggestion that attorneys review all cases in litigation in Common Pleas Courts. Remember, the amendments apply to all pending actions as well as cases filed on or after July 1, 2020. This review should also include the intersection of these amendments with your local rules of court.
A determination of the practical impact of the amendments will be crucial, including any changes to your docketing and calendaring systems. Keeping good lines of communication open with the court, opposing counsel and any unrepresented parties will help move the process forward. If you have questions or comments, please feel free to contact me.
Gretchen Mote, Esq.,
Director of Loss Prevention