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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 volun- teer 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.
Rule 26 – Expert Discovery
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 asso- ciated with expert discovery varied by judge even within the same courthouse.
This inconsistency created the poten- tial 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 summa- rize or support them, (4) the witness’ qualifications, including a list of all publi- cations authored in the previous 10 years, (5) a list of all other cases in which during the previous 4 years the witness testi- fied as an expert, (6) a statement of the compensation to be paid for the study and testimony in the case.
Practical Observations
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 regu- lating 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.
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