Ohio Supreme Court Amends the Rules of Practice and Procedure for Ohio Courts
Business Litigation Update
Date: July 07, 2020
Effective July 1, 2020, the Ohio Rules of Practice and Procedure were amended. Some of the amendments impact how individuals and businesses engage in litigation and can impact decisions individuals and businesses make potentially before even retaining counsel. This update is of the most concern to businesses and individuals in or considering civil litigation.
Ohio’s Civil Rules govern most lawsuits in Ohio courts. The amendments are designed to bring Ohio’s state Civil Rules more in line with practice in federal courts. Anyone familiar with the standards set out in the Federal Rules of Civil Procedure will see similarities in the amended Ohio rules.
One key change concerns delivery of the court documents that start a lawsuit. The delivery of these documents starts the 28-day clock running on responding and the failure to respond on time can have severe consequences. Before the amendments, the clock would start when the complaint and summons were hand-delivered by a process server or when the defendant signed for certified mail. Now, a defendant may receive notice of the suit by first-class mail or “other reliable means.” Though not defined, “other reliable means” could possibly include by email.
The notice sent by mail (or email) can now include a “waiver of service of process,” which asks the defendant to agree not to insist on getting formal personal or certified mail service of the complaint. The amendments provide benefits to defendants who do so. For example, by waiving service a defendant can wait 60 days to answer instead of the usual 28. And waiving preserves other procedural defenses, like objections to jurisdiction or venue.
Perhaps as important is the downside of refusing to waive. Failure to agree to waive service subjects the defendant to paying the plaintiff’s fees related to the formal service (assuming the Ohio court can exercise personal jurisdiction over the defendant).
Before deciding to waive service in a particular case, it is best to consult an attorney for advice.
The amendments also now require an attorney appearing at initial pretrial hearings to have authority to make agreements with the other side on many matters that used to be left until much later in the litigation. Thus, the parties will now likely need to have longer conversations with their counsel discussing potential settlement positions, factual developments, expenses, discovery issues, and trial concerns in preparation for these initial hearings.
The amendments’ largest changes concern discovery. First, the rules now require the parties to exchange “initial disclosures” early in litigation, even without a request from the other side. The parties must identify all individuals who have knowledge of the claims or defenses and all documents which contain discoverable information.
Electronically Stored Information (ESI) like emails, texts or other material stored on computers or phones has become the most important part of discovery in many cases, especially as we have moved toward a predominantly digital world. But the complexity and cost of finding and producing this data is often far more than its value in the case. In response, the amendments contemplate litigating the scope of ESI production based on the resources available to the party. A court can now order that ESI discovery may be limited (or even barred) if it is not reasonably accessible or because the cost is too high for that particular party to bear. Courts may also shift the costs of the discovery to the party seeking it.
Finally, the amendments overhauled Ohio’s treatment of expert witnesses. Under the amendments all experts retained for litigation (except treating health care providers) must provide a complete statement of their opinions and the bases for those opinions. Parties can thus expect increased costs associated with preparing and exchanging these expert materials.
The amendments also enacted changes to the Rules of Evidence to decrease the inconvenience and burden of parties at trial to authenticate records of regularly conducted activity.
Many of these changes about how lawsuits are handled in Ohio’s courts are significant. We expect these amendments will result in more streamlined litigation, permitting the parties to assess the merits of a case early in the litigation.
FOR MORE INFORMATION
For more information, please contact:
Brian J. Lamb
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