Page 12 - July August 2021 CBA Report
P. 12

 Feature
Civil Rules
Amendments:
What the Practitioner Needs to Know
 Last year, the Ohio Supreme Court adopted significant amendments to the Rules of Civil Procedure. These amend- ments 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 proceed- ings 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 amend- ments 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 – Service and Waivers of Process
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 defen- dant’s refusal to waive service without good cause: the defendant will incur reasonable costs and attorneys’ fees related to effectu- ating 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
By Robert J. Gehring
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 determina- tion should be made by counsel on a case-by-case basis.
Rule 16 – Case Management
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 sched- uling 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.
Rule 26 – General Discovery Practice
An apparent purpose of the revisions to the Civil Rules regu- lating 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,
12 l July/August 2021 CBA REPORT
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