Analysis: Supreme Court of Ohio Issues Amendments to State Rules of Civil Procedure

Markus E. Apelis By Markus E. Apelis

The Supreme Court of Ohio has announced final amendments to the Ohio Rules of Civil Procedure, the rules that govern civil proceedings in Ohio state courts.  The amendments bring the Ohio Rules of Civil Procedure in much closer alignment to the procedural rules and common practice in federal courts.  As a result, the amendments contain a number of significant revisions to the rules of which litigants and legal counsel should be aware.  Major amendments to the rules include the following:

  • Provisions allowing plaintiffs to request that defendants waive service of process, the procedure for answering a complaint when a defendant waives service of process, and the potential consequences of refusing to waive service of process. (Rule 4.7, new.)
  • Provisions governing the conduct of pretrial conferences, final pretrial conferences, and scheduling orders. (Rule 16, new.)
  • Provisions mandating initial disclosures of key information, disclosures of expert testimony, and certain trial disclosures. (Rule 26, amended.)
  • Provisions governing discovery generally and discovery of electronically stored information. (Rule 26, amended.)
  • Provisions governing jury trials before a magistrate. (Rule 53, amended.)

Waiver of Service of Process (Rule 4.7).  A new Rule 4.7 now provides for waiver of service of process, very similar to provisions in the Federal Rules of Civil Procedure.  If a defendant waives service of process, the defendant generally has 60 days from the date the plaintiff sent the request for waiver to file an answer to the complaint, instead of the usual 28 days after formal service.

The new rule specifically provides that a defendant who waives service of process does not waive any objection to jurisdiction or venue.

A defendant receiving a request to waive service of process will have an opportunity to show good cause for failing to waive service, but the comments to the new rule indicates that good cause should be rare.  A court may assess expenses incurred in making service, as well as attorney’s fees incurred for any motion to collect such expenses, against a defendant who refuses to waive service of process without good cause.

Other rules pertaining to service of process are amended to include reference to the new rule.  The new rule applies only to civil proceedings in the Court of Common Pleas.

Pretrial Procedure (Rule 16).  A new Rule 16, governing Pretrial Procedure, replaces the old Rule 16 in its entirety.  The new Rule 16 allows a court to order attorneys and unrepresented parties to appear for one or more pretrial conferences for various purposes.  The new Rule 16 requires courts to issue a scheduling order within the earlier of 90 days after a defendant has been served or 60 days after any defendant has responded to the complaint.  Rule 16 scheduling orders may address such matters as time to join other parties, amend pleadings, complete discovery, file motions, set dates for pretrial conferences and trial, and other appropriate matters.

The new Rule 16 specifically authorizes courts to order the parties or their representatives to attend a pretrial conference in person or by other means.

The new Rule 16 also addresses final pretrial conferences and orders.  Courts are permitted to hold final pretrial conferences to formulate a trial plan.  If such a conference occurs, the rule requires that it be held “as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party, and by any unrepresented party.”

The new Rule 16 encourages courts to issue orders after any pretrial conference to recite the actions taken. These orders control the course of the action going forward unless the court specifically modifies the order.

Discovery Generally (Rule 26(B)(1)).  Significant modifications to Rule 26, governing discovery generally, are made to bring the state rule closer to the Federal Rules of Civil Procedure.  Rather than a party being entitled to discovery on any relevant matter or matters reasonably likely to lead to the discovery of admissible evidence, the amended rule permits discovery into any non-privileged matter that is relevant to a claim or defense and proportional to the needs of the case.  In assessing whether a matter is proportional to the needs of a case, courts consider the importance of the issues at stake, the amount in controversy, the parties relative access to information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.  These are the considerations that federal courts take into account.

Discovery Planning (Rule 26(F)).  Much like in federal court, parties are now required to conduct a Rule 26(F) Parties’ Planning Conference.  This conference must take place no later than 21 days before the first scheduled pretrial conference.  At this conference, the parties must consider changes to the timing, form, or requirement of disclosures, deadlines for discovery, the subjects on which discovery may be needed, issues pertaining to discovery of electronically stored information, disclosure of materials in the public record, claims of privilege or protection, changes to limitations on discovery, and other matters that the court should consider.  The parties must file a written discovery plan outlining their positions no later than 14 days after the conference (and thus no later than seven days before the pretrial conference).

Initial Disclosures (Rule 26(B)(3)).  As in federal court, parties are now required, as a matter of course, to provide initial disclosures of key information.  In their initial disclosures parties are required to identify the following: (1) the name and known contact information for individuals likely to have discoverable information, (2) copies or descriptions of all documents, electronically stored information, or tangible things that the parties have in their possession, custody, or control and which they may use to support their claims or defenses, (3) computation of each category of damages claimed and documents upon which that computation is based, and (4) insurance agreements under which an insurance business may be liable to satisfy all or part of a possible judgment, or to indemnify or reimburse a party for payments made to satisfy a judgment.

Parties must make initial disclosures no later than the first pretrial conference, unless otherwise agreed or ordered.

Expert Disclosures (Rule 26(B)(7)).  Unlike prior state court practice, parties must now identify and exchange written expert reports.  This practice was adopted in many courts, but not uniformly.  Parties must now identify any expert witness they intend to present at trial.  Parties must also submit a written expert report and the witness’ curriculum vitae.  The reports must provide a complete statement of opinions and the basis for those opinions on which the expert intends to testify.  If a party does not provide expert reports, the expert witness may not testify at trial.

Parties with the burden of proof on an issue are required to submit reports first, and responding parties thereafter.  The court will set the dates for the exchange of expert reports in its scheduling order.  Supplemental reports must be exchanged no later than 30 days prior to trial.

The rule also codifies the practice in many local courts in which a party may take discovery depositions of the opposing expert only after the mutual exchange of reports has occurred.

The rule allows for healthcare providers to testify as expert witnesses without the need for a written report.  In such cases, the healthcare providers may only offer opinions as to matters addressed in their records.  These records must be provided to opposing parties within the time set forth for providing written expert reports.

Lastly, the amendments protect the disclosure of facts or opinions known or held by an expert retained specifically in anticipation of litigation or for trial preparation, but who will not testify at trial.  Discovery of trial preparation experts is allowed only for those witnesses conducting a physical or mental examination or in exceptional circumstances.

Limits on Discovery Generally (Rule 26(B)(6)).  A new provision gives courts the discretion to limit the number and length of depositions, the number of requests for admissions, the number of interrogatories.  On motion, a court is required to limit discovery if the court determines that the discovery sought is unreasonably cumulative or duplicative, can be obtained from more convenient or less burdensome sources, if the requesting party had other opportunity to obtain discovery, or if the proposed discovery is outside of the scope of discovery permitted.

Discovery of Electronically Stored Information (Rule 26(B)(5)).  A new provision allows parties to resist the discovery of electronically stored information from those sources that the party identifies as not being reasonably accessible because of undue burden or cost.  A party seeking to compel production of such information bears the burden of showing the information is reasonably accessible.  If a court orders production of electronically stored information, the court may impose certain conditions on such production.

Proceedings Before a Magistrate (Rule 53).  Parties previously could consent to proceedings and jury trials before a magistrate, and the amended rules now clarify how the courts must treat the factual findings of the jury and the legal rulings of the magistrate in such proceedings or trials.  The factual findings of the jury are binding on the magistrate, as they would be binding on the trial court judge in any other jury trial.  Parties may not object to the factual findings of the jury in objecting to a magistrate’s decision, or object to the magistrate’s legal rulings except on appeal to an appellate court.  The trial court judge must enter judgment in accordance with the magistrate’s findings and cannot otherwise review the legal decisions of the magistrate or the factual findings of the jury.  This essentially eliminates the awkward “appeal” to the trial court judge.

The amendment applies only to those proceedings in which the parties unanimously consent to the jurisdiction of the magistrate.  If the trial court judge refers matters to a magistrate, parties dissatisfied with a magistrate’s decision must still object to the decision to preserve the issue for appeal.

Effective Date and Applicability of Amendments.  The amendments to the rules are effective July 1, 2020.  As with all prior amendments to the rules, the amendments apply not only to all actions filed on or after July 1, 2020, but also to all pending actions, except if the amendment would not be feasible or would work injustice.  In that case, the former version of the rules applies.

These are some of the most significant amendments to the Ohio Rules of Civil Procedure that the Supreme Court of Ohio has adopted in some time.  The changes are, by and large, welcome, as they will, in large part bring Ohio state court practice and procedure more in line with the practice and procedure in federal court.  Because of the significant nature of the amendments, litigants and legal counsel are advised to closely study the amendments to determine their impact on pending and new cases.

Please contact us with further questions about the amendments to the Ohio Rules of Civil Procedures or their impact on your pending or new legal matters.