Last year, the Ohio Supreme Court adopted significant amendments to the Rules of Civil Procedure. These amendments focus on “case management” and require lawyers and the court to move cases towards a just and timely resolution. The amended rules closely mirror their counterparts of Federal Rules of Civil Procedure.
The amendments, which affect Civil Rules 4, 4.1, 4.7, 16, 26, 53, and 73, took effect July 1, 2020. “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.” See Civ.R. 86(TT).
This article will touch upon the changes to Rules 4, 16, and 26 and discuss the practical implications and benefits of each.
Civil Rule 4(D) now permits a defendant to waive service, and Civil Rule 4.7 sets forth the related procedures for obtaining a waiver of service. The goal of the “waiver” option is to avoid unnecessary delay and expense in the clerk’s office arising from the use of certified mail. This rule applies only in the Court of Common Pleas—it does not apply to cases in Municipal Court. See Civ.R. 4.7(B). Rule 4.7(C) provides a consequence for a defendant’s refusal to waive service without good cause: the defendant will incur reasonable costs and attorneys’ fees related to effectuating service. The benefit for agreeing to waive service: additional time to answer. Civil Rule 4.7(D) provides a defendant who waives service 60 days to file an answer, rather than 28 days as otherwise provided under the Rules.
Entity defendants with counsel may agree to a waiver. These types of defendants are familiar with the litigation process and appreciate the additional time to secure litigation counsel, perform an investigation, or even attempt resolution before filing an answer. Individual defendants may be unsure of the waiver request and the related process, even though the waiver is to be sent in a “plain-English form.” Thus, these defendants may not respond to the waiver, which would then require the plaintiff to initially incur the costs related to formal service even though it had utilized the waiver provisions of the Rules.
The language pertaining to the waiver option is permissive, not mandatory. See Civ.R. 4(D) (“Service of summons may be waived in writing. . .”) ; Civ.R. 4.7(A) (“The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. . .”) Thus, while the Rules encourage use of the waiver process, such a determination should be made by counsel on a case-by-case basis.
Rule 16(B) now requires a court to issue a scheduling order in civil cases, with only a few exceptions. Moreover, the Rule provides deadlines by which the court must enter the scheduling order. Interestingly, courts may include in their scheduling orders language “direct[ing] that before moving for an order relating to discovery, the movant must request a conference with the court.” See Civ.R. 16(B)(3)(e). This provision attempts to fast-track discovery disputes directly to the judge and potentially limit costly discovery motion practice.
An apparent purpose of the revisions to the Civil Rules regulating discovery is to require the Court to participate in the discovery process more actively. The Rules are structured to require initial disclosures and to provide uniformity throughout the state as to pre-trial conferences, discovery and the resolution of discovery disputes.
A significant change to the Civil Rules can be found in Rule 26. First, Rule 26(B)(1) alters the scope of discovery and imposes a proportionality requirement: discovery may be had on “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” (Emphasis supplied) The “proportionality” analysis requires consideration of the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Second, Rule 26(B)(3) requires that the parties exchange “initial disclosures”. The parties are now required to volunteer certain basic information, rather than waiting for discovery requests and providing that information in response to the requests.
Finally, Rule 26(F) requires counsel to conference regarding a discovery plan at least 21 days prior to the scheduling conference, and then prepare and submit a written discovery plan to the Court. This is similar to the requirements under the Federal Rules.
Another important change from the prior version of Civ. R. 26 is found in Section 4 – “Trial Preparation: Experts.” In the past, each judge established his or her own rules as to experts, expert reports, and depositions of experts. Thus, the requirements and procedures associated with expert discovery varied by judge even within the same courthouse. This inconsistency created the potential for confusion amongst counsel and possibly substantively affected a case by altering the flow of required information regarding expert opinions.
The new Rules (26(a)(2)(b)) require that disclosure of experts be accompanied by a written report, prepared and signed by the expert witness. The Rule requires that the report contain: (1) a complete statement of all opinions of the witness and the basis and reasons for them, (2) the facts or data considered by the witness, (3) any exhibits that will be used to summarize or support them, (4) the witness’ qualifications, including a list of all publications authored in the previous 10 years, (5) a list of all other cases in which during the previous 4 years the witness testified as an expert, (6) a statement of the compensation to be paid for the study and testimony in the case.
Although the Rules have been in effect for some time, several courts and practicing attorneys appear to be largely unaware of these amendments. In our experience, counsel and courts have not always been responsive to requests that these newly amended rules be followed. Additionally, the clerk’s offices do not appear to account for the possibility of a waiver as permitted under Rule 4, resulting in instances where, even though not instructed, the clerk has nevertheless issued service via certified mail, creating confusion as to the answer date.
Attorneys and judges are required to utilize the revised Rules as they are mandatory and will benefit the parties, lawyers, and courts. The Rules were adopted to provide efficiency, consistency, and cost savings. They require early case management and hopefully facilitate the exchange of basic information while regulating the use of discovery towards a just end—rather than as a tool to harass and drive up the cost of litigation.
Gehring is a shareholder with the Cincinnati law firm of Buechner Haffer Meyers & Koenig Co., LPA, and practices in the areas of governmental law, torts, insurance, professional responsibility and business litigation. A past president of the Cincinnati Bar Association, he is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy. He can be contacted at 221 East Fourth Street, Suite 2300, Cincinnati, Ohio 45202; (513) 579-1500; or rgehring@bhmklaw.com.