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In July 1970, Ohio joined many other states in adopting substantially all the Federal Rules of Civil Procedure. Fifty years later, effective July 1, 2020, Ohio has updated those rules with significant amendments. They include new language on pretrial discovery and case management, commonly referenced as “proportionality” rules first adopted in federal courts in 2015 and adopted thereafter in roughly 20 other states. Both authors had a role in the study of these amendments. Recognizing concerns expressed by some Ohio judges and lawyers about the wisdom of the changes, we offer this summary of key changes and the reasoning behind them.

The Rules Amendment Process

Court rules do not fall out of thin air. If anything, changing court rules seems like a maddeningly slow process.

Users of civil courts across the United States have voiced concern for decades over apparent abuse of the broad pretrial discovery process. Leaders in the legal community also recognized that financial cost – including new electronic discovery – was reducing reliance on the public court system to resolve civil disputes. Not surprisingly, the result has been a continuing drop not only in civil trials but also in civil case filings. Franklin County Common Pleas Court, for example, saw civil filings fall by roughly 40 percent between 2007 and 2016.

“RAMBO” lawyers were said to seek “over-discovery” indiscriminately and/or objected to everything and turned over nothing. Aberrational examples and outright misperceptions about discovery (more than large verdicts) no doubt made tort reform efforts more widespread. Arbitration clauses became much more common. Highly skilled private mediators were given cases even before filing in court. Business as usual was no longer an option.¹

In response, possible rules amendments have been widely studied. Federal courts, under the leadership of Sixth Circuit Judge Jeffrey S. Sutton (Chair of the Judicial Conference of the United States Standing Committee on Rules of Practice and Procedure) organized a conference at Duke Law School in 2010 to explore better means to achieve the just, speedy and inexpensive determination of civil cases. Two hundred participants were hand-picked to attend, to ensure diverse views and expertise. Forty papers, 80 presentations and 25 compilations of empirical research were presented. Key conclusions reached were that the system needed more cooperation and “proportionality,” overseen by more active case management from trial judges. Before such changes were added to the federal civil rules, input of 2,300 written comments and 120 live witnesses at three public hearings was also received. Adoption of the federal rules on “proportionality” has been the subject of much formal and informal legal writing. Post-adoption study of how those rules actually are operating has begun, notably through the Bolch Judicial Institute at Duke Law School.

In 2013, the National Conference of Chief Justices (CCJ) convened a civil justice improvements committee to also assess potential reforms. Three years later, 13 recommendations were issued in a CCJ publication entitled “Call to Action: Achieving Civil Justice for All.” A key takeaway was tied to sensible case management (at p. 16):

“At the core of the committee’s recommendations is the premise that the courts ultimately must be responsible for ensuring access to civil justice. Once a case is filed in court, it becomes the court’s responsibility to manage the case toward a just and timely resolution. When we say “courts” must take responsibility, we mean judges, court managers, and indeed the whole judicial branch, because the factors producing unnecessary costs and delays have become deeply imbedded in our legal system. Primary case responsibility means active and continuing court oversight that is proportionate to case needs.”

In that same time period the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS), at the University of Denver, completed a separate study entitled, “Reforming our Civil Justice System.”

Prompted by such national studies, John Holschuh, then-President of the OSBA and Kathleen Trafford from Ohio’s chapter of the ACTL met with Ohio Supreme Court Chief Justice Maureen O'Connor. The Chief encouraged heightened study of the civil justice system here in Ohio. That triggered the formation of a 23-person Ohio Civil Justice Task Force chaired by Dayton attorney Martin A. Foos, assisted by Montgomery County Common Pleas Judge Michael Krumholtz and Dayton attorney Thomas M. Green. Several years of work culminated in a final report issued in June 2017. Among numerous proposals for change, the task force recommended adoption of these 2020 Civil Rules amendments.

It is valuable to note that, like similar ad hoc groups used in other states, the task force was carefully balanced with experienced plaintiff and defense trial lawyers as well as seven judges from across the state. The task force solicited input from Ohio lawyers and federal judges already using new “proportionality” rules, as well as insights from staff at the Ohio Supreme Court, members of the Court’s Rules Commission and representatives of the Ohio Judicial Conference.

The work then moved to the Ohio Supreme Court Commission on Rules of Practice & Procedure. After further study, including several public comment periods, the Justices agreed with recommendations that these rules be updated. Even then the process was incomplete. The Ohio Senate Judiciary Committee under Chairman John Eklund held several public hearings to gain additional input in the spring of 2020, primarily but not exclusively focused on the proposed “proportionality” rules.

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The Amendments

Rule 4.7 adopts the procedure for waiver of service of summons used in federal courts.

Using plain-English forms (adopted along with the rule) litigants in common pleas court cases (other than those involving a civil protection order) may now request a written waiver of this formality. The goal is avoiding unnecessary delay and expense in clerk’s offices and with using certified mail. Institutional litigants like real estate companies, hospitals, banks or insurance companies are anticipated to readily agree to accept service using this streamlined procedure, in exchange for which they automatically receive 60 days to answer from the date a notice is sent (and 90 days if notice is sent to a foreign country) rather than the standard 28-day answer time.

As discussed more fully in the staff note, Civ. R. 4.7(A)(7) permits the use of “reliable” alternatives to send the Notice and Request for Waiver forms, such as private messenger service or electronic communications. Especially with respect to obtaining service in a foreign country, electronic communication may be practical and economical. However, lawyers are reminded in the staff note that good record keeping is essential if such electronic communication proves unsuccessful, and the sender later seeks reimbursement of expenses for alternative service.

The forms explain every litigant’s “duty to avoid unnecessary expenses of serving a summons.” Clearly emphasized in Rule 4.7 and the forms is that a party waiving service does not give up any objection to jurisdiction or venue, or any other defense to the lawsuit. However, failure to waive may result, if without good cause, in an award of expenses later incurred in making service using other means. The award may also include reasonable attorney fees for the extra effort needed to collect such expenses.

Litigants have a “reasonable time” of at least 28 days after a request is sent to return the waiver.

Although the task force recommended waiver of service be available in any civil case, discussions with municipal court judges led to the limitation to common pleas cases. Defendants in municipal cases often represent themselves, and may not readily grasp the notice and waiver process.

Rule 16 is substantially updated, and deals with pretrial conferences and case scheduling.

The rule begins with a restatement of the purposes of pretrial conferences. Consistent with one of the larger goals of many of these changes, Civ. R. 16 explicitly states that attorneys, clients, and unrepresented parties “shall endeavor in good faith to agree” on all the case schedules contemplated by the rule. For good measure, courts themselves are admonished that they must consider such agreements in establishing final case schedules.

Civ. R. 16(B) contains a new requirement that a court “shall issue a scheduling order” in every civil case except cases in categories carved-out by Civ. R. 1(C). Such orders may be issued sua sponte by the court, as some Ohio trial courts already do at or shortly after a case is filed. Alternatively, a trial court shall hold a scheduling conference with the attorneys and unrepresented parties, or issue the order after receiving a Civ. R. 26(F) report from the lawyers as a result of a meet-and-confer conference. (The conference obligations in R. 26(F) are also new, and are described below.)

The task force recommended these changes because, in some counties, civil cases seemed to languish merely because no case schedule had been issued at or shortly after filing. To keep cases from falling into the proverbial black hole, the window of time to issue scheduling orders is “as soon as practicable” and, ordinarily, no later than 90 days after any defendant has been served or 60 days after any defendant responds to the complaint. This puts a premium on the plaintiff completing service on everyone as promptly as possible, and on defense counsel getting up to speed quickly.² Having all parties’ participation at the time the case scheduling order is issued usually results in that task being done once and for all, rather than through piecemeal changes.

One novel feature of Civ. R. 16(B)(3)(e) is that a scheduling order “may direct that before moving for an order relating to discovery, the movant must request a conference with the court.” Some courts around the country require pre-motion conferences – sometimes with a one-page letter previewing the issue – leading some commentators to believe motions are then more quickly resolved without the delay and expense of “normal” motion practice.³ Assuredly, others have a different view particularly with reference to discover motions; they worry quick access to a judge will undermine the obligation in Civ. R. 37(A) to confer seriously and in good faith about discovery disputes before seeking court attention. In any event, going forward this portion of new Rule 16 gives individual Ohio judges the opportunity to experiment with more informal procedures in individual cases, or in handling discovery on their entire civil docket.

Civ. R. 16(C) emphasizes the responsibility of attorneys “to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference.” It also gives clear authority to trial judges to “require that a party or its representative be present or reasonably available by other means to consider possible settlement.”

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Rule 26 sets out the newly amended scope of discovery, procedure for statewide use of initial disclosures by parties, new rules on electronically stored information, limits that a court may impose on the frequency or extent of discovery, a new requirement for written reports by most expert witnesses (other than health care providers) and parties’ obligation to meet and confer early in the case.

Civ. R. 26(B)(1) alters the scope of discovery. Formerly it was “any matter, not privileged, which is relevant to the subject matter,” but now it opens up “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” “Proportionality” is determined by considering 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. As has been true since 1970, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.”

Concerns have been stated that this rule may adversely impact an attorney’s ability to represent their client and that the rule may actually lead to more delays caused by disputes over what is proportional. While judges have always had some ability to rein-in discovery, this 2020 amendment more clearly guards against oppressive, unduly expensive discovery. This rule (like others in the 2020 package) should penalize no part of the bar and no category of litigant.

Applying “proportionality” requires analysis of numerous case-specific factors. Discovery in a fraud case will usually be broader than in a two-car auto accident case. Deposing the parties and other central figures will ordinarily be high on the proportionality scale, but that still leaves open things like the number of other witnesses who need questioned in a formal deposition, the reasonable duration of the depositions, and the sequence in which depositions are taken. A party claiming discovery requests are not “proportional” cannot simply make stereotyped, generalized and conclusory arguments. An objector must provide the other side – and potentially the trial judge – with grounds that are specific and factual. Affidavits from an IT staff member explaining why a document request for electronically stored information (ESI) is too burdensome, for example, ought to be provided rather than mere lawyer argument.

Civ. R. 26(B)(3) also adds provisions for initial disclosures of basic “information then reasonably available.” Some Ohio trial courts already require initial written disclosures under their local rules, with little difficulty. They are not a substitute for all regular discovery, but many times written disclosures avoid boilerplate initial interrogatories and document requests asking names of known witnesses, the availability of documents relevant to the case, damages claimed by any party and nonprivileged material believed to support such damages and disclosure of insurance that may satisfy a judgment. Such basic information will now automatically be disclosed under the new rule.

Initial disclosures can be stipulated away by the lawyers, or the schedule for making them varied by stipulation. In most cases, however, the rule contemplates disclosures no later than the parties’ first pretrial or case management conference so that everyone can quickly get their arms around a case and help the court sensibly manage it. A copy of a sample disclosure form can be found here.

Civ. R. 26(F) requires a conference of attorneys and unrepresented parties “as soon as practicable” and no later than 21 days before a scheduling conference is held with the court. The initial disclosures described above should be made at that time, or at least arranged for a date certain. Preparation of a written discovery plan is also the joint obligation of all participants. That written discovery plan is to be filed with the court within 14 days after it is prepared and prior to any conference with the trial judge.

The discovery plan is intended to be straightforward and pragmatic. Parties need to think about, and if possible, agree upon the sequence of and reasonable deadlines for discovery. This offers an early opportunity to discuss any troublesome issues such as exchanging ESI, potential privilege issues and efficiently handling threshold issues in a case like a statute of limitations defense. The discovery plan will guide the trial judge’s case management order. It hardly needs to be said, therefore, that any deadlines suggested by the parties should lead to timely final resolution of the case, and allow the trial judge to meet time guidelines in Ohio’s Superintendence Rules.

Finally, amended Civ. R. 26(B)(7) provides that most expert witnesses shall provide reports including their curricula vitae in accordance with the case schedule set by the court. Disclosure is sequential; the party with the burden of proof on a particular issue is required to submit a report initially.

An exception not found in the federal counterpart to this rule came from public comments and allows treating physicians or other health care providers to testify without writing a formal report. Instead, the provider’s office chart is deemed to be a cost-effective alternative.

Depositions of expert witnesses – frequently costly and difficult to schedule – must be postponed until after the mutual exchange of reports (except for health care providers whose testimony is often taken for use at trial). The practical reason for reports – and sequential exchange of them – is to rein-in this expensive part of many cases and minimize the time delay inherent in scheduling many expert’s depositions.

The Justices of the Ohio Supreme Court recognized in overhauling Civ. R. 26 that further changes might need to be made in the future. Accordingly, they requested the Commission on Rules report back 18 months after adoption of the new language in Civ. R. 26. Trial lawyers and judges are encouraged to submit comments on their practical experience operating under Civ. R. 26 to the Court’s Commission on the Rules of Practice and Procedure by late 2021.

Rule 53(C) was amended to streamline the procedure for jury trials with the consent of all parties held before court magistrates.

The amendment clarifies two points. First, as soon as all parties stipulate to move a civil case to a magistrate, that judicial officer shall thereafter rule on all pretrial (or post-trial) motions including those governing discovery and possible summary judgment. Second, appeal from rulings by a magistrate now unquestionably goes directly to the court of appeals, not back to the trial judge. While the trial judge must enter final judgment (or the final appealable order if some interlocutory but appealable issue like privilege is contested) there is no initial “appeal” to the trial judge such as occurs in other types of proceedings referred to a magistrate only for a report and recommendation. The factual findings of a jury are also now clearly considered “conclusive as in any trial before a judge.” As Ohio tries to resume “normal” court operations after disruption by COVID, magistrates have an enhanced opportunity to assist their courts and the trial bar in moving otherwise delayed civil cases.

Conclusion

These amendments were thoroughly vetted by the Ohio Civil Justice Reform Task Force, then by the Ohio Supreme Court Commission on Rules of Practice and Procedure, then by the Justices of the Ohio Supreme Court and finally, by the Ohio Senate Judiciary Committee. They seek to promote cooperation among trial counsel and to require an active role by the trial judge throughout the litigation. The amendments seek to promote efficiency and reasonable expediency in civil litigation. The reality of efforts to reach these goals will be evaluated in 18 months.

As is customary with all amended rules under Civ. R. 86, these amendments govern all proceedings in actions brought after they take effect, and also all further proceedings in cases then pending, except to the extent that their application in a particular pending case would not be feasible, or would work injustice, in which event the former procedure applies.

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Judge Richard Frye is in his 16th year on the Franklin County Common Pleas Court general division bench. He was a member of the Ohio Civil Justice Task Force, and now serves on the Ohio Commission on Rules of Practice & Procedure, as an appointee of the Ohio Judicial Conference.

John Holschuh is a former president of the OSBA, and in that role worked to create the Ohio Civil Justice Task Force discussed in this article. For the last two years he has chaired the Civil Rules Committee of the Ohio Supreme Court’s Commission on Rules of Practice & Procedure. Like Judge Frye, he is a Fellow in the American College of Trial Lawyers.

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Download a sample Rule 26 disclosure form here.

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Endnotes

1. “Civil caseloads are falling as people choose alternative means of resolving disputes, including new online dispute resolution methods. From a business perspective, courts are losing their market share. Court budgets are being cut; civil jury trials are almost non-existent; access to the civil courts is more and more expensive, and thus not feasible for significant portion of the public; and, relatedly, public trust and confidence in the civil justice system are waning. Certainly, if not already upon us, a crisis is brewing.” IAALS, “Change the Culture, Change the System: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow” at p. 4 (2015).

2. Recommendation 3 in the “Top 10” is “Dig Deep, Earlier” offering the view that “Lawyers need to develop a deep understanding of their case early in the process”.

3. “When we look at the current scheme, we see one that is flush with opportunities for live interactions and exchanges between judges and lawyers. We see extraordinary potential for reconnecting trial judges with lawyers and the litigants they represent. We see important opportunities for lawyers to be advocates for their clients in live proceedings before judges. We see civil pretrial process in which the best case-management practices make trial judges more visible, not less, and the case management tools more effective as a result.” IAALS, “Efficiency in Motion: Recommendations for Improving Dispositive Motions Practice in State and Federal Courts” (2019) quoting Gensler and Rosenthal, The Reappearing Judge, 61 Kan. L. Rev. 849, 852 (2013).

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