Posted In: Litigation
By David Sporar on July 8, 2020
The Ohio Rules of Court recently were amended in significant ways, effective July 1, 2020, that will, in some respects, change the way civil litigators manage their cases in Ohio courts. Some of the amendments are more technical than others. For example:
- Ohio Civil Rule 4 was amended to include a more robust procedure for waiving service of a summons and copy of the complaint upon the commencement of a lawsuit. The new Rule 4.7 is based on the federal rule permitting waiver of service, so anyone who practices in federal court already should be familiar with this procedure.
- Amendments to Ohio Evidence Rule 601 redefine what constitutes a competent witness; and amendments to Evidence Rule 902 provide additional categories of self-authenticating evidence.
- The Ohio Appellate Rules were amended in a handful of ways that include clarifying when a notice of cross-appeal is required; revising the limitations on the length of briefs; and reducing the amount of time for oral argument from 30 minutes to 15 minutes per side, subject to alteration either sua sponte or by motion. These are what the local appellate rules say on the same subjects.
Particularly noteworthy, however, are the amendments to the civil discovery rules. The language of Rule 26 has been rewritten in substantial part to be more like the federal rule to include, among other things: a revised description of the scope of discovery that provides for an express requirement that discovery be proportional to the needs of the given case; an initial disclosure requirement; and the requirement that parties engage in a pre-case management conference planning meeting and file a report on that meeting with the court. The new “proportionality” language is likely to affect the way litigants and courts view and manage discovery and, therefore, is something of which every civil litigator who practices in Ohio should be aware.
Amended Rule 26(B)(1) states that “[p]arties may obtain discovery regarding any nonprivileged matter that is 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’ access to resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” This language is nearly identical to the federal rule.
The term “proportional” is not defined, but the Staff Notes to the amendments explain that it is a case-specific determination based on all the considerations outlined in the rule. Ohio Civ.R. 26, Staff Notes to July 1, 2020 Amendment, Rule 26(B)(1), ¶ 3. This is consistent with proportionality under the federal rule, see, e.g., Commerce & Indus. Ins. Co. v. Century Sur. Co., S.D. Ohio No. 2:16-CV-320, 2017 WL 946984, at *2 (Mar. 10, 2017), to which Ohio courts may look for guidance, see State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 86, 661 N.E.2d 728 (1996).
Proportionality is not, however, a new discovery standard that narrows the scope of discovery, but is meant only to provide clearer guidance for managing discovery and discovery disputes:
This change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.
Staff Notes to July 1, 2020 Amendment, Rule 26(B)(1), ¶ 2. As federal courts have observed, proportionality always has been inherent in the Civil Rules where the parties are required to act in good faith to avoid imposing undue burdens and courts have the discretionary power to regulate discovery. See, e.g., Robertson v. People Magazine, S.D.N.Y. No. 14 CIV. 6759 (PAC), 2015 WL 9077111, at *2 (Dec. 16, 2015).
Ultimately, “a court can—and must—limit proposed discovery that it determines is not proportional to the needs of the case.” Orchestratehr, Inc. v. Trombetta, 178 F. Supp.3d 476, 505 (N.D.Tex.2016). This may include shifting the cost of discovery from the recipient of the discovery requests to the proponent. See, e.g., Lawson v. Spirit AeroSystems, Inc., D.Kan. No. 18-1100-EFM-ADM, 2020 WL 3288058, at *8-10 (June 18, 2020). Nevertheless, a trial court’s decisions on such matters are within its broad discretion. See, e.g., State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 11.
The amendments to the civil rules are not retroactive; rather, they “govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies.” Ohio Civ.R. 86(TT); Ohio Evid.R. 1102(V); Ohio App.R. 43(EE). With respect to proportionality under the civil discovery rules in cases pending on the date the amendments took effect, since discovery is a matter of going concern the guidance on proportionality should be a basis to manage discovery going forward until trial.
The recent amendments to the Ohio Rules of Court in some respects change the way civil litigators will manage their cases in Ohio courts, including the way they manage discovery in civil litigation. For those who practice in federal court, many of the changes should be familiar. Nevertheless, the foregoing examples are only that. Counsel should read all the amended rules and corresponding staff notes to become familiar with the new expectations in Ohio courts, as they will have to follow and meet them.
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