PART III Discovery · 2011-01-19 · PART III Discovery THE NATURE OF DISCOVERY _____ The discovery rules in Ohio have been patterned after the rules in the federal court, and in

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• In Ohio, Title V of the Rules of Civil Procedure Controls the Discovery Process:

Rule 26. General Provisions Governing Discovery

Rule 27. Perpetuation of Testimony

Rule 28. Persons before Whom Depositions May Be Taken

Rule 29. Stipulations Regarding Discovery Procedure

Rule 30. Depositions upon Oral Examination

Rule 31. Depositions of Witnesses upon Written Questions

Rule 32. Use of Depositions in Court Proceed ings

Rule 33. Interrogatories to Parties

Rule 34. Production of Documents

Rule 35. Physical and Mental Examination of Persons

Rule 36. Requests for Admission

Rule 37. Failure to Make Discovery: Sanctions

CHAPTER 8Overview of the Discovery Process

KEY POINTS ________________________________________________________________________

• Ohio civil discovery practice is similar to federal discovery practice.

• Ohio has modifi ed the rules of discovery in order to accommodate the extensive use of electroni-cally stored information (ESI) used today in civil litigation.

• The rules affected by these changes include Rule 26, Rule 33, Rule 34 Rule 36, Rule 37, and Rule 45.

• In addition to the attorney-client privilege and the Fifth Amendment privilege against self-incrimination, Ohio has established by statute a physician-patient privilege and a news reporter-news source privilege.

• Ohio has also modifi ed the work product privilege and has not protected insurance applications from discovery.

• Unlike the federal system, Ohio does not require the parties in a lawsuit to have a discovery conference.

PART IIIDiscovery

THE NATURE OF DISCOVERY _________________________________________________________

The discovery rules in Ohio have been patterned after the rules in the federal court, and in many respects are similar. The basic discovery rules for Ohio are found in Title V of the Ohio Rules of Civil Procedure. Title V includes Rule 26 through Rule 37.

CHOICE OF DISCOVERY METHODS

In Ohio, an attorney has fi ve methods of discovery from which to choose: the deposition, interrogatories, a request for the production of documents and for entry upon land for inspection, a request for physical or mental examina-tions, and a request for admission (see Exhibit 8-1).

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60 PART III Discovery

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Exhibit 8-1 Ohio Rules of Civil Procedure Governing Discovery

RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY Rule 26 covers the policy regarding discovery: discovery methods, the scope of discovery,

discovery of trial preparation materials, and other general provisions.RULE 27. PERPETUATION OF TESTIMONY—DEPOSITIONS BEFORE ACTION OR PENDING

APPEAL Rule 27 allows the perpetuation of testimony even though an action cannot be presently

brought to court or when an appeal is pending.RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN Rule 28 specifi es that a deposition must be taken before a person authorized to administer

any oaths by the laws of Ohio. The rule also outlines the persons before whom a deposi-tion can be taken outside Ohio. The rule also eliminates persons who are related to or employees of the parties or the attorneys. as well as people who have a fi nancial interest in the action.

RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE Rule 29 allows the parties to an action to modify in writing the discovery procedures out-

lined in the rules.RULE 30. DEPOSITIONS UPON ORAL EXAMINATION Rule 30 explains when depositions can be taken, notice requirements, examination and

cross-examination, objections, motions to terminate or limit examination, failure to attend or failure to serve a subpoena, and exhibits, among other things.

RULE 31. DEPOSITIONS OF WITNESSES UPON WRITTEN QUESTIONS Rule 31 discusses the service of depositions upon written questions, as well as the notice

requirements, among other things.RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS Rule 32 outlines the circumstances under which a deposition can be used in court.RULE 33. INTERROGATORIES TO PARTIES Rule 33 explains the procedure for using interrogatories, the allowable scope of the inter-

rogatories, and the use of interrogatories at trial. The rule also indicates when business records can be produced in lieu of answering interrogatories.

RULE 34. PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION AND OTHER TANGIBLE ITEMS, AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

Rule 34 explains the scope of this discovery device, as well as the procedure for its use.RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS Rule 35 explains when a physical and/or mental examination can be ordered. It also

explains the disposition of the examiner’s report.RULE 36. REQUESTS FOR ADMISSION Rule 36 outlines the procedure for requesting admissions. It also explains the effects of an

admission.RULE 37. FAILURE TO MAKE DISCOVERY: SANCTIONS Rule 37 presents the procedure for fi ling a motion for an order compelling discovery. In

addition, the rule explains the need for informal cooperation in discovery procedures. It also details the negative consequences of failing to comply with such an order, among other things.



A deposition is the oral or written testimony of a party or a witness given under oath outside a courtroom. Depositions are regulated by Rule 27 through Rule 32 of the Ohio Rules of Civil Procedure. Interrogatories are written questions requiring written answers under oath and directed to a party from which another party seeks informa-tion related to the litigation. Interrogatories are governed by Rule 33 of the Ohio rules. A request for the production of documents and entry upon land for inspection, which is covered by Rule 34, asks for the inspection or duplica-tion of documents, electronically stored information, and

other materials that are relevant to the subject matter of the litigation. As the name implies, this request may also seek permission to enter land for inspection purposes. A request for a physical or a mental examination asks a party to submit to such an examination to determine the extent of the physical or psychological injuries claimed by that party. A request for admission asks a party to admit the truth of certain facts, or the genuineness of a document, so that these issues do not have to be proven at trial. These last two discovery methods are regulated by Rule 35 and Rule 36, respectively.

THE EXTENT OF ALLOWABLE DISCOVERY ______________________________________________

As is true in the federal system, under Ohio rules the scope of discovery is much more vast during the discovery stage than it is at trial. The scope of discovery includes all mat-ters that are relevant to the subject matter of the lawsuit, even if that matter is not admissible at trial, just as long as it “appears reasonably calculated to lead to the discovery of admissible evidence” (Ohio Civ. R. 26(B)(1)).

ELECTRONICALLY STORED INFORMATION

The Ohio Rules of Civil Procedure were amended in 2008 to refl ect the need to accommodate the widespread use of electronically stored information or ESI used in litigation today. Like the courts at the federal level, the courts in Ohio were reluctant to make this leap into the twenty-fi rst century. As is often the case, however, once the federal courts had tested the waters, the Ohio courts followed suit. The current amendments to the rules, while not as exten-sive as those in the federal courts, do respond to any of the problems associated with the advent of ESI. Among these problems are the burden and the cost of producingESI as well as the problems associated with the inadvertent production of protected data (Rule 260); the question of whether ESI can be used to answer interrogatories (Rule 33);the question of the form used to transmit ESI (Rule 34); the problems related to using electronic communication in a request for admission (Rule 36); the threat of sanctions whenever ESI is lost or destroyed (Rule 37); and the extent to which ESI jmust be included in a response to a sub-poena issued during the discovery process (Rule 45). The new amendments to these rules will be explained in detail as the issues appear in the next six chapters.

OVERALL GUIDELINES RELATED TO DISCOVERY: RULE 26

The discovery process in the Ohio Rules is introduced by Rule 26, which is entitled “General Provisions Governing

Discovery.” The rule explains the methods, scope, sequence, and timing of discovery as well as the nature of supplemen-tary materials and the issuance of protective order. The rule was amended in 2008 to refl ect the need to accommodate the widespread use of electronically stored information (ESI). The amendments accomplish four basic objectives. First, they eliminate any ambiguity about the use of ESI in discovery. Second, they allow for the diffi culties and the cost involved in retrieving ESI. Third, they provide for the protection of ESI when necessary; and, fourth, they protect ESI that is inadvertently delivered to the opposing party.

The fi rt objective is accomplished in Ruoe 26 (A) and (B), both of which include language that makes it clear that EI is within the scope of the discovery process. Before these amendments were added, Rule 26 simply identifi ed “document” and “other tangible things” as discoverable evidence. Such terms were ambiguous enough to permit a court to include or exclude ESI on a whim. This is no longer possible. The second objective is accomplished by the addition of 26 (B)(4), which recognizes the diffi culty and the expense involved in retrieving ESI and gives the court guidelines in determining whether undue hardship and cost should eliminate the use of ESI in a given case. The third goal is met by Rule 26 (B)(6)(a), which provides a way to protect ESI based on privilege.

Finally, Rule 26 (B)(6)(a) provides a “clawback” pro-cess similar to the procedure used in the Federal Rules of Civil Procedure. A clawback process is a way for a party to retrieve any evidence that has been transmitted to the other party inadvertently. The process requires that the paqrty that transmitted the protected material notify the other party of the error. Once the other party is notifi ed of the mistake, he or she has an affi rmative duty to “return, sequester, or destroy” the accidentally delivered material. The court will then determine whether the evidence really is privileged. Strictly speaking, Rule 26 (B)(6) (a) applies to any evidence turned over to the other party accidentally, not just ESI. However, the voluminous nature of ESI and the diffi cul-ties associated with retrieving it have led to an epidemic of

CHAPTER 8 Overview of the Discovery Process 61




accidental revelations necessitating the use of the clawback process. Moreover, and perhaps more to the point, oppos-ing counsel has always had a duty not to use evidence that has been delivered into his or her hands accidentally. This duty is clearly outlined in the Ohio Rules of Professional Conduct, Rule 4.4 (b).

LIMITS ON DISCOVERY

Discovery in Ohio is not without its limits. Like the fed-eral system, Ohio recognizes the attorney-client privilege and the Fifth Amendment privilege against self-incrimina-tion. Also like the federal rules, the Ohio Rules of Civil Procedure limit access to expert testimony and allow for the use of protective orders and confi dentiality agreements. However, Ohio also has created two additional statutory privi leges. These are the health care privilege and the news reporter-news source privilege. Ohio also has a slightly different version of the work-product privilege. Finally, unlike the federal system, Ohio does not protect insurance applications from discovery.

HEALTH CARE PRIVILEGE. Section 2317.02(B) of the Ohio Revised Code creates a health care privilege that prevents a physician or dentist from testifying about matters that have been communicated to him or her by his or her patients. The privilege discussed here applies to “doctors of medicine, doctors of osteopathic medicine, doctors of podiatry, and dentists” (RC 2317.02(B)(6)). The privilege also prevents the disclosure of any advice that a physician has given to his or her patients. If an opinion is rendered by a physician or other practitioner who has been retained to give a medical evaluation in preparation for litigation, the privilege is ineffective (State v. Fears, 86 Ohio St. 3d 329, 715 N.E. 2d 136 (1999)).

The privilege also can be waived voluntarily by the patient. In addition, the privilege is automatically waived if, after undergoing an examination ordered under Rule 35 of the Ohio Rules of Civil Procedure, the party undergoing the examination requests a copy of the examiner’s report. The receipt of the report amounts to a waiver of the physi-cian-patient privilege in two ways. First, it allows the other party to ask for and obtain any similar report issued to the examined party (Ohio Civ. R. 35(B)(1)). Second, it waives the privilege in regard to “the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition” (Ohio Civ. R. 35(B)(2)).

The complex nature of litigation surrounding cases involving the testimony of health care professionals has led to several changes in the nature of the health care privi-lege. In recent amendments to the Ohio Revised Code, the Ohio General Assembly has limited the health care privi-lege in relation to certain situations.

The pertinent code sections include RC 2317.02(B)(1)(a) to (e). Since these subsections, paragraphs, and subparagraphs are long, complicated, and subject to change, it is wise for the paralegal to check the latest ver-sion of the code available before asserting the privilege. Moreover, even the limits to the privilege are limited. Thus, it is best for the paralegal to also check the code RC 2317.02(B)(3)(a–c) for the most up-to-date version of the privilege.Recent amendments have also extended the privilege to cover communications between a phy-sician and a pharmacist (RC 2317.02(B)(4)). It is also a good idea to check all defi nitions in this section (RC 2317.02 (B)(5)(a)–(c)(i–vi)).

It would also be wise for the paralegal to recall that the Ohio General Assembly and the new governor of Ohio continue to do battle over the extent of certain privileges. It is wise to recall, for example, that one of the areas of contention involves records related to drug and alcohol abuse tests administered by health caqre providers in response to requests from law enforcement offi cers. Another important nuance to remember is that the Ohio Association of Probate Judges and the Ohio Judicial Conference Probate and Procedure Committee are currently pushing for a change in the law that would permit physicians to testify, despite the physician-patient privilege, in cases that involve civil commitment pro-ceedings, guardianship actions, court-mandated adult protective procedures, and civil institutionalization proceedings.

NEWSPAPER REPORTER-NEWS SOURCE PRIVILEGE. Section 2739.12 of the Ohio Revised Code creates a newspaper reporter-news source privilege that prevents a newspaper reporter from testifying about the identity of his or her news informants, as long as the information was obtained from the informant as a part of the reporter’s job. The privilege does not protect the infor-mation; only the identity of the informant is protected. Thus, a reporter cannot refuse to cooperate in an oral or written deposition, except in refusing to reveal the iden-tity of the informant. Oddly enough, this privilege extends only to newspaper reporters. It does not cover periodical or magazine writers (Deltec, Inc. v. Dun & Bradstreet, Inc., 187 F. Supp. 788 (1960)). Reporters may also be compelled to testify before a grand jury and may have to answer questions concerning a criminal investigation (Branzburg v. Hayes 92 5. Ct. 2646, 48 U. 5. 665, 33 L. Ed. 2d 626 (1972)). In civil matters, a reporter may be compelled to respond to inquiries about his or her ideas and discussions, as well as any conclusions reached in the writing of a story. This is especially important in a defama-tion lawsuit in which a determination of actual malice is crucial (Herbert v. Lando 99 5. Ct. 1635, 441 U. 5. 153,60 L. Ed. 2d 115 (1979)).



WORK-PRODUCT PRIVILEGE. In both the fed-eral system and the Ohio state courts, the work-product privilege is a qualifi ed or limited privilege. This means that there are times when the privilege can be overcome. However, the circumstances under which the privilege can be overcome are different in the two jurisdictions. Under Rule 26 of the Federal Rules of Civil Procedure, the dis-closure of work-product materials can be compelled only by showing that the party seeking disclosure has a substan-tial need for the documents or materials in the preparation of his case and that he or she cannot, without undue hard-ship, obtain the equivalent of that material any other way (Fed. Cir. R. 26(b)(3)). In contrast, the Ohio rule appears to be much less strict. Under Rule 26 of the Ohio Rules of Civil Procedure, the privilege can be overcome “only upon a showing of good cause” (Ohio Civ. R. 26(B)(3)). Exactly what constitutes “good cause” is at best problematic. The courts must generally make such a determination on a case-by-case basis. At the very least, however, a party seeking to overcome the privilege in relation to the testimony of experts must be ready to demonstrate that he or she cannot other-wise uncover the facts and opinions of the expert without undue hardship (Ohio Civ. R. 26(B)(5)(a)). In addition, that party would have to supply reasons why the court should, in the interests of truth, justice, and the American way, compel the disclosure of the otherwise protected material (Ohio Civ. R. 26(B)(5)(a)).

The new ESI amendments to Rule 26 also make it clear that electronically stored information is protected by the work-product privilege. A relevant federal case that dealt with this very issue involved one of the most famous insider trading cases in recent years—the case of The United States v. Stewart. During the grand jury inves-tigation that led to Stewart’s indictment the defendant sent an e-mail to her attorney and to her daughter. Apparently, the e-mail was important because it explained some of the

dealings behind the events that led to the ImClone scan-dal. In a situation that mirrors exactly what we have been talking about here, the e-mail was unintentionally deliv-ered to the government’s legal team mixed in with some additional fi les that had been delivered in answer to a sub-poena. Fortunately for Stewart, the federal attorneys knew their duty under the Code of Professional Responsibility. Consequently, when the 3-mail was found, they immedi-ately asked the judge if they could use the e-mail as evi-dence. On the other side of the aisle, Stewart’s lawyer stated that the e-mail was ESI that was produced accidentally and ought to be protected by the work-product privilege. The judge agreed with Stewart’s legal team and upheld the protection granted by the work-product privilege. United States v. Stewart, 03 Cr. 717 (United States District Court Southern District of NEW York).

INSURANCE APPLICATIONS. Before Ohio adopted the present Rules of Civil Procedure, informa-tion regarding any insurance coverage that could affect the claim before the court was inadmissible at trial because it was irrelevant to a fi nding of liability. Since information regarding insurance was inadmissible, it was not subject to discovery. The adoption of the current Ohio Rules of Civil Procedure in 1970 changed this. Ohio Rule 26(B)(2) allows the discovery of information regarding insurance coverage. However, it still prohibits the use of such evidence at trial. The rule (Ohio Civ. R. 26(B)(2)) reads as follows:

(2) Insurance Agreements A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance busi-ness may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure subject to comment or admis-sible in evidence at trial.

COOPERATING WITH DISCOVERY ____________________________________________________

Most parties cooperate willingly with discovery. However, there are times when a party or parties will refuse to coop-erate. The Ohio Rules of Civil Procedure provide meth-ods for compelling discovery and sanctions for those who refuse to cooperate.

DISCOVERY CONFERENCES

Rule 16 of the Ohio Rules of Civil Procedure authorizes courts to hold pretrial conferences to accomplish a variety of objectives including discovery. Some common pleas courts have taken advantage of this authorization and have adopted rules requiring or strongly recommending pretrial

conferences to deal with many items, not the least of which is discovery.

The General Division of the Cuyahoga County Court of Common Pleas, for example, requires a pretrial case management conference at which the parties must, among other things, agree to a time limitation for discovery. Such a pretrial conference must be conducted before the parties are assigned a trial date (Cuy. Cty. Common Pleas Gen. Div. R. 21). However, the Cuyahoga Court of Common Pleas does exempt actions for injunctions, foreclosures, marshalling of liens, partition, receiverships, and those on appeal from administrative agencies (Cuy. Cty. Common Pleas Gen. Div. R. 21). Similarly, the Hamilton County

CHAPTER 8 Overview of the Discovery Process 63




Court of Common Pleas mandates that a case manage-ment conference be held within 90 days after a lawsuit has been fi led (Ham. Cty. Common Pleas 15(A)). The court also authorizes an optional pretrial conference in addi-tion to the case management conference. The purpose of the pretrial case management conference is to discuss in depth all items set forth in Rule 16 of the Ohio Rules of Civil Procedure (Ham. Cty. Common Pleas R. 15(B)). Because of these differences from county to county, you should review the local rules of court whenever a case is being tried in a county unfamiliar to you and your attorney. Moreover, it is important to recall that, in July of 2008, naddition to Rule 16 went into effect that is designed to remind the parties that they should also discuss facilitat-ing the discovery of ESI and establishing any necessary claims of privilege associated with the production of evi-dence during discovery.

INVOLUNTARY COOPERATION

Despite the inclination toward cooperation, there are times when parties may resist discovery. In such cases Ohio provides a method for compelling cooperation and for levying sanctions on those who persist in their refusal to cooperate.

EARLY RESOLUTION OF DISCOVERY PRO-BLEMS. The provisions of Rule 37 of the Ohio Rules of Civil Procedure encourage the informal settlement of discovery disputes. Rule 27 requires attorneys, pro se par-ties, and others from whom discovery is sought to take reasonable steps among themselves to solve all discovery problems before fi ling a motion to compel discovery. The rule also states that a motion to compel must include a written statement that explains the steps taken to resolve any and all discovery disputes. The motion to compel dis-covery cannot be brought unless it includes this written explanation (Ohio Civ. R. 37(E)).

ORDERS TO COMPEL DISCOVERY. If one of the parties in a lawsuit refuses to cooperate, the other party may attempt to force compliance. Under Rule 37 of the Ohio Rules of Civil Procedure, the party seeking coopera-tion must fi le a motion with the court asking the judge to compel discovery. The judge will then decide whether to grant the motion.

SANCTIONS AGAINST NONCOMPLYING PARTIES. If, after an order compelling cooperation is issued, a party still refuses to comply, the court can invoke the sanctions provided by Rule 37 of the Ohio Rules of Civil Procedure. Under Rule 37, the sanctions include but are not limited to a dismissal of the action, the granting of a default judgment, the granting of reasonable expenses, including attorney’s fees, caused by the failure to cooperate, and a contempt of court ruling against the uncooperative

party. More specifi cally, Ohio Civ. R. 37(B) outlines the following sanctions:

(B) Failure to comply with order

(1) If a deponent fails to be sworn or to answer a ques-tion after being directed to do so by the court, the failure may be considered a contempt of that court.

(2) If any party or an offi cer, director, or managing agent of a party or a person designated under Rule 30(B)(5) or rule 31(A) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (A) of this rule and Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from intro-ducing designated matters in evidence;

(c) An order striking out pleadings or any part thereof, or staying further proceedings until the order is obeyed, or dismissing the action or pro-ceeding or any part thereof, or rendering a judg-ment by default against the disobedient party;

(d) In lieu of any of the forgoing orders or in addition thereto, an order treating as a con-tempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(e) Where a party has failed to comply with an order under Rule 35 (A) requiring him to pro-duce another for examination, such orders as are listed in subsection (a), (b), and (c) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court expressly fi nds that the failure was substantially justifi ed or that other circum-stances make an award of expenses unjust.

Rule 37(C) deals with the expenses that can be levied against a party who fails to admit to the truth of an allega-tion or the genuineness of a document. Should the truth of the allegation or the genuineness of the document be proven at trial, the party who made the original request could fi le a motion with the court asking it to compel the other party to pay the reasonable expenses, including



attorney’s fees, of the cost of proving the allegation or the genuineness of the document.

Rule 37(D) deals with the failure of a party to attend his or her own deposition, or the failure of a party to answer interrogatories, or the failure of a party to serve a written response to a request for inspection. In such a situ-ation, the court can take any action that is authorized under Rule 37(B)(2)(a), (b), or (c) as quoted above. In addition, the court could compel the uncooperative party to pay the reasonable expenses, including attorney’s fees, caused by the failure to attend.

Moreover, Rule 37 was amended to deal with a par-ty’s failure to provide ESI as required under discovery

procedures. However, unlike other parts of the Rule 37,the new amendment actually prohibits a court from imposing sanctions on a party who fails to produce ESI because that ESI was deleted in the ordinary course of doing business. The new section recognizes the fact that, in the ordinary operation of a business, computer data is routinely deleted from a system because that datais no longer relevant and the carrying capacity of any computer system is limited. The Rule does, however, also provide list of factors for the court to consider in deciding whether the deletions really were routine (Ohio Civ. R. 37 (F)).

• In Ohio, Rule 27 through Rule 32 of the Rules of Civil Procedure control the use of depositions:

Rule 27. Perpetuation of Testimony—Depositions before Action or Pending Appeal

Rule 28. Persons before Whom Depositions May Be Taken

Rule 29. Stipulations Regarding Discovery Procedure

Rule 30. Depositions upon Oral Examination

Rule 31. Depositions of Witness upon Written Questions

Rule 32. Use of Depositions in Court Proceedings

• Ohio’s use of depositions is similar to the use of depositions in federal court.

• Rule 45 of the Ohio Rules of Civil Procedure reg-ulates the use of subpoenas

CHAPTER 9Depositions

KEY POINTS ________________________________________________________________________

THE DEPOSITION ___________________________________________________________________

A deposition is the written or oral testimony of a party or a witness given under oath outside the courtroom. The use of depositions is regulated by Rule 27 through Rule 32 of the Ohio Rules of Civil Procedure. The purpose of a depo-sition is to uncover and explore all facts known by a party to a lawsuit or by a nonparty witness involved in the suit.

A party or nonparty who is questioned during a deposition is a deponent. According to Rule 26 of the Ohio Rules of Civil Procedure, during a deposition, the attorney may ask the deponent not only questions involving admissible evi-dence, but also any questions that could reasonably lead to the discovery of admissible evidence.

THE NATURE OF THE ORAL DEPOSITION ______________________________________________

During an oral deposition, the deponent is actually present in the attorney’s offi ce, at the courthouse, or at some other convenient location, to answer an attorney’s questions out loud. Rule 30 of the Ohio Rules of Civil Procedure regu-lates the use of oral depositions. Rule 28 of the Ohio Rules of Civil Procedure sets down the individuals before whom

a deposition can be taken. Ohio Civ. R. 28(A)–(C) reads as follows:

Rule 28. Persons before whom depositions may be taken

(A) Depositions within state Depositions may be taken in this state before: a person authorized to administer any

CHAPTER 9 Depositions 65




oath by the laws of this state, a person appointed by the court in which the action is pending, or a person agreed upon by written stipulation of all the parties.

(B) Depositions outside state Depositions may be taken outside this state before: a person authorized to admin-ister oaths in the place where the deposition is taken, a person appointed by the court in which the action is pending, a person agreed upon by written stipulation of all the parties, or, in any foreign country, by any consular offi cer of the United States within his consular district.

(C) Disqualifi cation for interest Unless the parties agree otherwise as provided in Civ. R. 29, depositions shall not be taken before a person who:

(1) is a relative or employee of or attorney for any of the parties, or

(2) is a relative or employee of or an attorney for any of the parties, or

(3) is fi nancially interested in the action.

The courts of Ohio have made it clear that an individ-ual, such as a notary, who receives a fee for taking a depo-sition does not have the type of fi nancial interest in the action contemplated by Rule 26. Also, the present rule is a bit more liberal than the previous statute (RC 2319.13),

which set down provisions for determining who can take a deposition. The previous statute did not give the par-ties any way to voluntarily waive the disqualifi cations of a person who is available to take the deposition but who is technically unable to do so because of the provisions in Rule 26(C). The statute (RC 2319.13) was repealed to eliminate this confl ict.

The Ohio Rules have also been amended to make it clear that court reporters, court recorders, and court report-ing fi rms can no longer engage in blanket contracts for reporting services. Such contracts engage court reporters, court recorders, and court reporting fi rms to supply all court reporting needs for a client at a set pay rate. While there is really nothing inherently wrong with such agreements, they can give the impression that a court reporter who is under contract with an attorney, is used regularly by that attorney, and is paid routinely by that attorney is actually an employee of the attorney and is, therefore, biased in his or her favor. It is still permissible, however, for attorneys to hire court reporters on a case-by-case basis. Curiously, the amendment to Rule 28 that outlaws blanket contracts does not apply to those governmental agencies, which are required by law to enter such contracts (Ohio Civ. R. 28(D)).

THE PARALEGAL’S ROLE BEFORE THE ORAL DEPOSITION _______________________________

The Ohio Rules of Civil Procedure require that formal notice of a deposition be given to the deponent and to each party. Rule 30 requires that a reasonable amount of time be allowed between the date that notice is given and the date of the deposition. Exactly what is a reasonable amount of time is determined on a case-by-case basis. In most instances, this is decided among the attorneys in a coopera-tive manner. The notice of intent to take an oral deposition must set the date, time, and place of the deposition and the name and the address of the person whose deposition is to be taken. Exhibit 9-1 is a sample of a notice of intent to take an oral deposition. It is also permissible under Ohio Civil Rule 30(B)(5) to “name as the deponent a public or private corporation, a partnership, or an association” (Ohio Civ. R. 30(B)(5)). It is then up to the organization named as the deponent to choose who will testify on behalf of that organization (Ohio Civ. R. 30(B)(5)).

Rule 30(B)(3) permits the party taking the deposition to specify in the notice his or her intent to use a method of recording other than the traditional stenographic method. The court, however, does have the prerogative of also requiring that a stenographic record be kept (Ohio Civ. R. 30(B)(3)). In Ohio, documents and other tangible objects may also be obtained from a party to litigation by serving a request for that party to bring those documents or tangible objects to his or her deposition (Ohio Civ. R. 30(B)(4)).

Rule 30(B)(4) of the Ohio Rules of Civil Procedure allows for this process. However, as is true in the federal courts, the procedures of Rule 34, Production of Documents, must also be followed. Rule 30(B)(6) also permits the taking of a deposition by telephone. Rule 30 was amended in 2006 to expand the time allowed for a witness to look over and sign his or her deposition. Under the earlier rule, the wit-ness was given only seven days to accomplish this task. The rule was amended to recognize the fact that the seven-day time period was much too short and, therefore, imposed a hardship on most witnesses. The rule does revert to the seven-day time period when the deposition is taken within 30 days of the trial date. If the deposition is taken within seven days of the trial, then the court is empowered to set the time period (Rule 30 (E)). The rule was also amended in 2006 to account for the fact that most depositions re now recorded electronically rather than on paper. The change makes it clear that the term “archival quality copy” refers to an electronic copy (Ohio Civ. R. 20(F)(4)).

The attendance of a nonparty at a deposition can be expedited by the use of a subpoena under guidelines estab-lished by Rule 45. Amendments to Ohio Civil Rule 45 have made extensive changes in the procedures followed in the use of subpoenas. The objectives of the amendments are to make it easier to serve subpoenas on nonparties and to enhance the ability of the parties to obtain documents



Exhibit 9-1 Notice of Intent to Take Oral Deposition

IN THE COMMON PLEAS COURT OF RICH LAND COUNTY OHIOTeresa Billheimer, et al.Plaintiffs

v.

Franklin IndustriesDefendant

Case No. 09-GD-2749

NOTICE OF INTENT TOTAKE ORAL DEPOSITION

To: Lawrence Hastings, Attorney for Defendant

PLEASE TAKE NOTICE that pursuant to Rule 30 of the Ohio Rules of Civil Procedure, Christopher Tackett will take the oral deposition of Lew Oswald before a notary public on May 12, 2009, at 9 a.m. and there-after from day to day until completed, at the law offi ces of Sontag, Sarup and Tackett, 196 Park Avenue West, Mansfi eld, Ohio 44902.

Respectfully submitted,

_______________________________ Christopher Tackett, 00177719 Attorney for Plaintiff, Teresa Billheimer

SONTAG, SARUPANDTACKETT 196 Park Avenue West Mansfi eld, OH 44902 419/756-9273 Fax: 419/756-9272 E-mail: [email protected]

PROOF OF SERVICE

Plaintiff, Teresa Billheimer, served the foregoing Notice of Intent to take Oral Deposition, on Joseph Sarducci, attorney for the defendant, Franklin Industries, by mailing a copy by ordinary United States Mail to his offi ce at 1031 West Fourth Street, Mansfi eld, OH, 44902, on the 21st day of April 2009.

___________________________ Christopher Tackett, 0017779





and other tangible items under the control of nonparties. In short, the procedure for using subpoenas in Ohio has been streamlined and simplifi ed.

Rule 45 was amended in 2005 to eliminate some of the overlap that occurred because of similar provisions in Rule 34. Thus, Rule 45 now controls the procedures that apply to the use of most subpoenas issued to nonparties. The rule also now requires that a party who has caused a subpoena to be served must notify all other parties of the subpoena, as provided in Rule 5 of the Ohio Civil Rules. This notice must include a copy of the subpoena (Ohio Civ. R. 45(A)(3)). This notice requirement does not include subpoenas issued for trial or hearing under Rule 45(A)(1)(b)(i). The policing of this process is now left up to the trial court in order to permit that court to follow local rules related to the question of whether to keep the identities of witnesses secret.

Rule 45 was also amended in 2008 to add special rules that apply to the peculiarities of ESi. For example, Rule 45 (A)(1)(b)(ii) and (iii) was amended to include reference to electronically stored information to clarify that such material can be subpoenaed. Later, the rule indicates that the format in which ESI is delivered in

response to a subpoena is that format specified in the subpoena. However, the rule also indicates that ESI need not be produced in more than one format (Rule 45 (A)). Moreover, the rule also indicates that, if the subpoena does not specify a particular format, then the witness is permitted to produce the ESI in whatever format is usually used to store the information (Ohio Civ. R. 45(D)(2)).

The amendments also declare that a witness need not produce ESI if the production would cause “undue burden or cost” (Ohio Civ. R. 45(D)(3)). Naturally, the party requesting the ESI is permitted to contest the claim of “undue burden or cost” (Ohio Civ. R 45(D)(3)). Finally, the same “clawback” provision that is included in Rule 26 is repeated here to make clear that it applies to evidenceunintentionally provided by a witness to a party in res-ponse to a subpoena. The clawback provision in Rule 45, like the provision in rule 26, applies to all forms of evi-dence, not just ESI. Finally, in a related matter, Rule 45 has also been amended to permit a subpoena to be served via certifi ed or express mail. However, to be effective, a receipt must be signed and returned to the appropriate clerk of court (Ohio Civ. R. 45(B)).

THE PARALEGAL’S ROLE DURING THE ORAL DEPOSITION ______________________________

In Ohio, the taking of an oral deposition follows much the same pattern that the examination of a witness would take at trial. Thus, direct examination is followed by cross examination (Ohio Civ. R. 30(C)). Objections are also per-mitted. Procedural objections may be made as to the quali-fi cations of the person assigned to take the deposition, to the way it is being conducted, or to the manner in which a party conducts himself or herself. If counsel objects as to the presentation of certain evidence, the evidence will be heard subject to the objection. Counsel also may object to the presentation of documents and other tangible items during the deposition (Ohio Civ. R. 30(C)).

The Ohio rules also allow a party or a deponent to call a halt to the deposition and take the time necessary to fi le a motion to halt the deposition, on grounds that it is being conducted “in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the depo-nent or party” (Ohio Civ. R. 30(D)). The court may grant the motion and cause the entire deposition to stop or it may limit the extent of the questioning or the manner in which the questions are to be asked. If, however, the court’s decision is to halt the deposition entirely, such deposition cannot be resumed without court order (Ohio Civ. R. 30 (D)).

THE PARALEGAL’S ROLE AFTER THE ORAL DEPOSITION _________________________________

One of the jobs of the paralegal after the taking of an oral deposition may be to secure a transcript of the depo-sition. Exhibit 9-2 represents the fi rst page of a sample deposition transcript. Two sections of Rule 30 authorize the creation of a transcript following the termination of adeposition. Rule 30(C) states, “If requested by one of the parties, the testimony shall be transcribed.” Later, Rule 30(F) repeats the authorization stating, “Upon request of any party or order of the court, the offi cer shall transcribe the deposition.”

Implicit in this authorization is the notion that a tran-script need not be made. In fact, often after a deposition has been taken, the party who conducted the deposition discov-ers that nothing of any use to the case was uncovered. To save the expense involved in the production of a useless transcript, none will be requested. Similarly, if the infor-mation revealed at the deposition indicates that a settle-ment offer may be in order, no transcript will be requested. The cost of producing a transcript of a deposition is always born by the party requesting that transcript.



Exhibit 9-2 First Page of a Sample Deposition Transcript

IN THE COMMON PLEAS COURT OF RICH LAND COUNTY, OHIOTeresa Billheimer, et al.Plaintiffs

v.

Franklin Industries, et al.Defendants

Case No. 09-GD-2749

DEPOSITION TRANSCRIPT

APPEARANCES:

Sontag, Sarup and Tackett By: Ryan Sarup For the Plaintiff

Hastings and Hastings By:Lawrence Hastings For the Defendant

STIPULATIONS:It is hereby stipulated and agreed by and between counsel that all objections, except to the form of the questions, be reserved until the time of the trial.

Lew Oswald, CPA, sworn

BY MR. SARUP:Q. Would you please state your full name for the record?A. Adam Lew Oswald.Q. Where are you employed, Mr. Oswald?A. Franklin Industries.Q. At what address is Franklin Industries located?A. 433 Home Road in Mansfi eld.Q. Mr. Oswald, would you briefl y list your educational background?A. I attended Cuyahoga Community College where I earned an associate of applied science degree

in accounting.





While the most common type of deposition is the oral deposition, Ohio does authorize the use of the deposition upon written questions. Rule 31 of the Ohio Rules of Civil Procedure regulates the use of the deposition upon written questions. The difference between an oral deposition and a deposition upon written questions is found in the manner in which the questions are asked. In the oral deposition, the attorney is present to ask the questions of the party or witness. In the deposition upon written questions, the attorney has written the questions out in advance and has had them delivered to a person with the authority to take a deposition. The deponent then is asked the questions orally and responds orally. The answers then are transcribed in the same manner as an oral deposition.

DEPOSITIONS UPON WRITTEN QUESTIONS CONTRASTED TO INTERROGATORIES

Rule 31 of the Ohio Rules of Civil Procedure uses the words “written questions” to prevent confusion between this approach to discovery and the use of interrogatories. There are several differences between the deposition upon written questions and a set of interrogatories. It is true that interrogatories are also written questions; however, rather than responding orally, the party answering the questions does so in writing. Also, both parties and nonparties can be made to sit for depositions upon written questions. The same is not true of interrogatories. Only parties can be made to answer to interrogatories.

NOTICE REQUIREMENTS

Depositions upon written questions are easy and inexpen-sive. They are very helpful in obtaining business records

and for taking the testimony of a witness whose oral depo-sition might be quite costly due to the distance involved. The taking of a deposition upon written questions follows much the same procedure as that used for oral depositions. For example, notice is required as it is with an oral depo-sition. However, the notice does not have to indicate the time and place of the deposition. The notice must spec-ify the name and the address of the person designated to answer the questions. If the exact name of the deponent is unknown, it is permissible under Ohio rules to identify theperson by the use of a general description or to identify the class or group to which that person belongs. The notice must also indicate the name or the title and the address of the person before whom the answers are to be given (Ohio Civ. R. 31(A)).

CROSS, REDIRECT, AND RECROSS QUESTIONS

One of the disadvantages of the deposition upon written questions is the lack of opportunity to ask follow-up ques-tions. Ohio has attempted to address this diffi culty by allow-ing the use of cross questions, redirect questions, and recross questions. Ohio Rule 31(A) provides for the following:

Within twenty-one days after the notice and written questions are served, a party may serve cross ques-tions upon all other parties. Within fourteen days after being served with cross questions, a party may serve redirect questions upon all other parties. Within four-teen days after being served with redirect questions, a party may serve recross questions upon all other par-ties. The court may for cause shown enlarge or shorten the time.

THE DEPOSITION UPON WRITTEN QUESTIONS _______________________________________

DEPOSITIONS IN COURT PROCEEDINGS ______________________________________________

The Ohio Rules of Civil Procedure are very liberal in the treatment of depositions at trial and at hearings. The use of depositions at court proceedings is governed by Rule 32 of the Ohio rules. Basically, the rule allows an entire deposition or parts of a deposition to be used at a trial or at a hearing following the same rules of evi-dence that would be followed in the deponent are actu-ally present.

FILING TIMES

Rule 32(A) of the Ohio Rules of Civil Procedure mandates that all depositions that will be presented in evidence at

a trial or a hearing must be fi led with the court one day before the day of the court proceeding in question.

USES OF DEPOSITIONS

The Ohio rules allow depositions to be used in several ways during a trial or a hearing. One use allowed by Rule 32(A)(1) is to impeach the testimony of a witness. Most of the time, a deposition will be used as a supplement to the actual oral testimony given at time of the trial or hearing. However, there are some circumstances under which the deposition may be substituted for the oral tes-timony of a witness or party. Rule 32(A)(3) provides that



a deposition can be used as a substitute for oral testimony when the witness is deceased; when the witness is not subject to the court’s subpoena power; when the witness lives outside the county in which the case is being heard; when the party offering the deposition has been unable to secure the presence of the witness by subpoena; when the witness is an attending physician or some other type of medical expert; or when the witness cannot attend due

to illness, age, infi rmity, or imprisonment. It is within the court’s discretion to determine whether the age or infi r-mity of a witness has actually rendered the witness unable to appear. The rule also allows a deposition taken for use inone case to be used in another case provided that the other case involves the same subject matter of the pres-ent case or has been brought by the same parties (Ohio Civ. Rule 32(A)).

• In Ohio, Rule 33 of the Rules of Civil Procedure controls the use of interrogatories:

Rule 33(A) Availability; procedures for use

Rule 33(B) Scope and use at trial

Rule 33(C) Option to produce business records

Rule 33(D) Form of answers and objections to interrogatories

• Ohio’s use of interrogatories is similar to the use of interrogatories in federal court.

• Rule 26 of the Ohio Rules of Civil Procedure regulates the scope of the subject matter of interrogatories.

• The Ohio Rules of Evidence govern the extent to which the answers to interrogatories can be used in a lawsuit.

CHAPTER 10Interrogatories

KEY POINTS ________________________________________________________________________

INTERROGATORIES _________________________________________________________________

Interrogatories are written questions submitted by one party in a lawsuit to another party in that suit. The respond-ing party must answer these questions in writing and under oath. Rule 33 of the Ohio Rules of Civil Procedure regulates the use of interrogatories in Ohio state courts. According to Rule 33, interrogatories may be served on any party to a lawsuit. Unlike depositions, however, interrogatories cannot be served on nonparty witnesses involved in the lawsuit.

Unlike the federal rule which sets a maximum of 25 interrogatories, the Ohio rule specifi es that a single set of interrogatories shall not exceed 40 questions. In 1999, Rule 33(A) was amended to make it clear that a party can fi le a maximum of 40 interrogatories without obtaining the court’s permission. Moreover, to prevent the technical circumvention of this limit, the rule states that subparts of interrogatories are to be considered as separate interroga-tories. It is possible, under Rule 33(A), for a party to fi le a motion asking the court for permission to serve more than 40 interrogatories. If the party does not seek permission, however, and then serves the other party with more than

40 interrogatories, the party receiving the interrogato-ries need answer or object to only the fi rst 40 (Ohio Civ. R. 33(A)).

SCOPE OF INTERROGATORIES

The type and amount of evidence that can be sought by discovery is much broader than that which can be pro-duced at trial. A reference in Ohio Rule 33(B) to Ohio Rule 26(B) makes it quite clear that this broad scope of discovery also applies to interrogatories. The rule states that “[i]interrogatories may relate to any matters which can be inquired into under Civ. R. 26(B), and the answers may be used to the extent permitted by the rules of evi-dence” (Ohio Civ. R. 33(B)).

PURPOSES OF INTERROGATORIES

The primary purpose of interrogatories is to obtain infor-mation on the basic facts in a case including any other people who may be involved in the lawsuit. The Ohio courts

CHAPTER 10 Interrogatories 71




have given the term interrogatory a very precise meaning. The objective of an interrogatory must be to uncover infor-mation that is of vital importance to a proper trying of the

case or, in the alternative, to the proper preparation of the case for trial. Ohio Rule 33 is patterned after Rule 33 of the Federal Rules of Civil Procedure.

DRAFTING INTERROGATORIES _______________________________________________________

Paralegals are often asked to participate in drafting inter-rogatories. The drafting of the interrogatories is important because properly drafted interrogatories not only provide information, but also indicate the need to use other discov-ery devices. Exhibit 10-1 is a sample opening paragraph and defi nitions for a set of interrogatories.

FORM OF INTERROGATORIES

Ohio Rule 33(D) provides quite specifi cally that the party responsible for the drafting of the interrogatories must allow at least one inch of vertical space between inter-rogatories. The intervening space provides room for the

typing of the responses to each interrogatory. Objections may also be typed in the space.

TIME OF SERVICE

Rule 33 allows one party to serve another party at the same time that the party is served with complaint and the summons, or at any time after the party has been served. The party who actually serves the interrogatories must designate a time for the return of the answers. According to Rule 33(A) that time period cannot be less than 28 days after the interrogatories have been served. However, the rule also allows the party serving the interrogatories to request the court to allow less time.

Exhibit 10-1 Opening Paragraph and Defi nitions for a Set of Interrogatories

IN THE COMMON PLEAS COURT OF KNOX COUNTY, OHIOCLARA CHRISTOPHERPlaintiff

MT. VERNONMEDICAL CENTERDefendant

Case No. 09-C D-9992INTERROGATORIES

TO: Mt. Vernon Medical Center, Defendant by and through its attorney of record John Armstrong, Attorney at Law, Armstrong, Davidson and Carter, Knox Plaza, 12540 Ross Avenue, Mt. Vernon, OH 44892

Plaintiff Clara Christopher hereby demands pursuant to Rule 33 of the Ohio Rules of CivilProcedure that Mt. Vernon Medical Center, Defendant, respond to the following interrogatoriesunder oath and in writing within twenty-eight (28) days after service thereof.

INSTRUCTIONS AND DEFINITIONS(Refer to Chapter 10 of the textbook.)



DRAFTING ANSWERS TO INTERROGATORIES __________________________________________

Like all other forms of discovery, responding to interroga-tories requires patient and careful planning. As noted pre-viously, Ohio Rule 33(A) requires the party responding to the interrogatories to answer or object to only the fi rst 40. If the party’s attorney objects to an interrogatory, the rea-sons for that objection must be stated. Answers are to be signed by the party providing the answers. Objections are to be signed by the attorney making the objection (Ohio Civ. R. 33(A)).

USING BUSINESS RECORD AND ESI INSTEAD OF A WRITTEN RESPONSE

Like Rule 33 (d) of the Federal Rules, Rule 33(C) of the Ohio Rules of Civil Procedure provides an alternative to answering an interrogatory in writing. A responding party may identify specifi c business records or electronically stored information where the information can be found that would answer the question. The responding party must also pull together, identify the particular records or ESI that answers the question, and give the other party the chance to review the records or ESI. This approach is justi-fi ed because it places the burden of examining the records or ESI on the party who will directly benefi t from review-ing them (Ohio Civ. R. 33(C)). Ohio Rule 33(C) does not, however, demand the same type of detailed description required by Federal Rule 33 (d). The federal rule reads:

A specifi cation shall be in suffi cient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. (Federal Civ. R. 33 (d))

Whether the absence of this requirement will cause problems for attorneys and paralegals in Ohio remains to be seen.

FAILURE TO RESPOND

In Ohio, there is no automatic sanction that applies when a party objects to or fails to respond to an interrogatory. In fact, as noted earlier in this text, recent amendments to Rule 37 of the Ohio Rules of Civil Procedure encourage

the informal settlement of all discovery disputes including the failure to respond to interrogatories. The amendment demands that attorneys and pro se parties take reason-able steps to end discovery disputes on their own before asking the court to compel cooperation with discovery. The new amendment also requires that a motion to compel be accompanied by a written statement noting the attempt to resolve discovery problems (Ohio Civ. R. 37(E)). The motion may seek to compel the other party to respond despite that party’s objection or to compel the other party to complete an answer to ask the court to apply any sanc-tions allowed by Rule 37. However, the fact that the party seeking to compel cooperation must ask the court to inter-vene does not allow the other party the luxury of ignoring the initial set of interrogatories. Each party should answer incompletely only when necessary and object on valid grounds only.

It is also important to remember that Rule 37 was amended to deal with a party’s failure to provide ESI as required under discovery procedures. Recall that unlike other provisions in the rule, the amendment prevents a court from using sanctions on a party who does not pro-duce ESI because it was deleted in the usual pattern of business. The amendment recognizes that, in the everyday affairs of a business, computer data is often deleted from a system because that data is no longer needed and the carrying capacity of any computer system is limited. The amendment does, however, also provide a list of factors for the court to consider in deciding whether the deletions really were routine (Ohio Civ. R. 37(F)).

USE OF INTERROGATORIES

As is true of the answers made in a deposition, the answers to interrogatories in Ohio can be used at trial “to the extent permitted by the rules of evidence” (Ohio Civ. R. 33(B)). This means that the fact that a question can be asked and must be answered in a set of interrogatories does not auto-matically mean that the answer is admissible as evidence at trial. It also is permissible for the party who sought the answers to interrogatories to challenge the answer with his or her own evidence (Ohio Civ. R. 33(B).

CHAPTER 10 Interrogatories 73




• In Ohio, Rule 35 of the Rules of Civil Procedure controls the use of physical and mental examinations.

Rule 35(A) Order for examination

Rule 35(B) Examiner’s report

• Ohio’s use of physical and mental examinations is similar to the use of physical and mental examina-tions in federal court.

• Physical and mental examinations will be ordered by the court only on a showing of good cause and only to determine a matter in controversy.

• Rule 35 is not the only method used in Ohio to obtain the report of a physician.

CHAPTER 11Physical and Mental Examinations

KEY POINTS ________________________________________________________________________

THE PHYSICAL OR MENTAL EXAMINATION ____________________________________________

Rule 35 of the Ohio Rules of Civil Procedure allows for and regulates the use of physical and mental examinations in Ohio courts. A physical or mental examination is the examination of a person, usually a party in a lawsuit, to determine factual information about the physical or mental condition of that person. Such an examination is used when the physical or mental condition is an important factor in a lawsuit. Rule 35 requires that the physical or mental condi-tion be “in controversy” before a court can order such an examination (Ohio Civ. R. 35(A)). Although such an exam-ination does, by defi nition, invade the privacy of the person subjected to the examination, no constitutional rights are violated when an individual is ordered to submit to one.

TYPES OF CASES USING PHYSICAL OR MENTAL EXAMINATIONS

Physical and mental examinations often are used in per-sonal injury cases, because the physical or mental condi-tion of a party can be an important factor in determining the extent of injuries a party has suffered. A physical exam-ination also may be ordered in the case of an industrial accident or in a paternity suit. Sometimes it also is neces-sary to call for such an examination to establish whether a plaintiff is eligible for disability payments under the terms of a disability insurance plan.

INDIVIDUALS SUBJECT TO PHYSICAL AND MENTAL EXAMINATIONS

Ordinarily, Rule 35 extends only to the parties in a law-suit. However, the rule can also extend to “a person in the

custody or under the legal control of a party” (Ohio Civ. R. 35(A)). In Ohio, this provision extends to a parent or a guardian who has brought a lawsuit to recover damages for injuries that have been suffered by a minor child.

EXTENT OF AN EXAMINATION

Rule 35 makes no attempt to specifi cally delineate what tests can be conducted, beyond labeling them as physi-cal or mental. Generally, such a determination is left up to the court on a case-by-case basis. Naturally, the gen-eral rules of discovery apply, as they do for all discovery devices. However, the courts have a wide degree of lati-tude in deciding whether to allow a particular examina-tion. Factors for the court to consider include the person’s safety, health, and comfort. Examinations that endanger the individual or that would cause unnecessary pain gener-ally are not ordered. However, routine radiologic examina-tions usually are allowed when needed to determine the extent of an injury.

USING OTHER DISCOVERY DEVICES

Rule 35 of the Ohio Rules of Civil Procedure is slightly dif-ferent from Federal Rule 35. The last sentence in Rule 35(b)of the Federal Rules of Civil Procedure reads, “This sub-division does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.” Ohio Rule 35 does not include this fi nal sentence. Nevertheless, there is reason to believe that the spirit of that sentence



applies to the Ohio courts. Provided that the health care privilege is not breached, such reports are discoverable. For example, Rule 16, Pretrial Procedures, clearly allows for the exchange of medical reports and hospital records.

Both Rule 34 on the production of documents, and Rule 26(B)(4), which covers trial preparation materials, can be used to obtain such records. Also, the examiner’s deposi-tion may be taken.

FILING A MOTION FOR COMPULSORY EXAMINATION _________________________________

Most physical and mental examinations are scheduled by agreement. In fact, Rule 37 of the Ohio Rules of Civil Procedure promotes the informal settlement of all dis-covery disagreements including those involving physical and mental examinations. The rule requires attorneys and pro se parties to make a sensible effort to unravel discov-ery snags before fi ling a motion to compel. In addition, the motion must be accompanied by a written statement explaining the steps taken to eliminate all discovery con-troversies (Ohio Civ. R. 37(E)). If agreement cannot be reached, a formal motion for a compulsory examination will be needed. Rule 35(A) of the Ohio Rules of Civil Procedure covers the requirements for the content of a motion for a compulsory examination. Exhibit 11-1 rep-resents a sample motion for a physical examination. The party who has requested the examination must give notice to the person to be examined and the other parties and their attorneys. The moving papers must specify the time, place, manner, conditions, and scope of the examination. The name of the person conducting the examination also is included.

PROFESSIONALS AUTHORIZED TO CONDUCT EXAMINATIONS

In the identifi cation of the types of individuals authorized to conduct physical and mental examinations, the Ohio rule now uses the term examiner, which means that profes-sionals other than physicians may be competent to con-duct certain types of physical and mental examinations. For example, depending on the type of examination to be conducted, a dentist, a chemist, a psychologist, or some other health care professional may be called on to carry out part or all of the examination.

THE TIMING OF THE MOTION

Rule 35 of the Ohio Rules of Civil Procedure does not specify when a motion for a compulsory mental or physi-cal examination must be made. However, it is generally safe to assume that such a motion must be raised within a reasonable amount of time. Exactly what a reasonable amount of time is considered to be is, at best, problematic. Still, the motion should almost certainly be made before the start of the trial.

REQUIREMENTS FOR GRANTING THE MOTION FOR COMPULSORY EXAMINATION _______

Rule 35 of the Ohio Rules of Civil Procedure sets down the conditions under which a motion for a compulsory physical or mental examination will be granted by the trial judge. The rule gives the judge wide discretion. However, that discretion mut be exercised within the limits of three standards which are loosely delineated in Rule 35(A): the “in controversy” stan-dard, the good cause standard, and the specifi city standard. Curiously, the Ohio rule omits a fourth standard required by the federal rules. That standard is that the examination be conducted by a “suitably licensed or certifi ed examiner” (Fed. Civ. R. 35 (a)). Nevertheless, as noted above, the Ohio rule does use the word “examiner,” which indicates that the term is expansive enough to include not just physicians but also dentists, chemists, psychologists, and so on.

CONDITION IN CONTROVERSY

Rule 35 of the Ohio Rules of Civil Procedure requires that the physical or mental condition to be examined by the health care professional be “in controversy.” To be in

controversy, the condition in question must be at the center of the lawsuit. For instance, the extent of the plain-tiff ’s physical injuries would clearly be in controversy in a personal injury lawsuit, while the mental condition would be in controversy if the case involved the inten-tional infl iction of emotional distress.

EVIDENCE OF GOOD CAUSE

As is true in the federal courts, in the courts of Ohio, the scope of good cause is relatively narrow. Usually, good cause will be found only if the information sought cannot be obtained by any other means. This restricted interpreta-tion stems from the fact that a physical or mental examina-tion is, by its very nature, intrusive.

SPECIFICITY

Rule 35 of the Ohio Rules of Civil Procedure requires that notice of the physical or mental examination be sent to

CHAPTER 11 Physical and Mental Examinations 75




both the individual to be examined and to all other par-ties to the lawsuit. It also requires that the notice include information that indicates with great specifi city the “time, place, manner, conditions, and scope of the examination” (Ohio Civ. R. 35(A)). The rule also demands that the notice identify the examiner or examiners charged with conduct-ing the examination (Ohio Civ. R 35(A)).

THE EXTENT OF JUDICIAL DISCRETION

While the court has wide discretion in deciding whether to grant a motion for a compulsory mental or physical examination, that discretion is not absolute. Nevertheless, the judge’s refusal to compel a mental or physical exami-nation may be overturned by the appellate court if the higher court detects any degree of abuse of discretion on the part of the lower court judge. This attitude is becom-ing more prevalent in the appellate courts as judges begin to rely more heavily on scientifi c evidence. There was a time when physical examinations were confi ned to taking x-rays or drawing blood. Today with the advent of genetic testing and the use of DNA evidence, the courts have become more attuned to the use of such evidence.

The standard for determining the reliability of scien-tifi c evidence was established in the federal system in the case of Frye v. United States, when a federal court held that scientifi c evidence would be admissible whenever the scientifi c community was in general agreement about the validity and verifi ability of such evidence. A variation of this standard is now part of the Federal Rules of Evidence

(Federal Rules of Evidence 702 and 703; see also Frye v. United States, 54 U.S.App.D.C. 46, 293 Fed. 1013 (1923) and Daubert v. Merrell Dow Pharmaceuticals, 133 Sup.Ct. 2786 (1993)). The Ohio rule is even more specifi c. Rule 702 asserts that scientifi c evidence is reliable when the following conditions are present:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifi able or is validly derived from widely accepted knowledge, facts, or principles:

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result (Ohio Rules of Evidence 702(C)(1) to (3)).

The reliability of DNA evidence has, in particular, caused a great deal of interest, especially since the use of DNA evidence has been used recently to liberate wrongly convicted prisoners on death row. (See Lawrence M. Friedman, Law in America: A Short History, New York: The Modern Library, 2002.)

SELECTING A PLACE FOR THE EXAMINATION

According to Rule 35(A) of the Ohio Rules of Civil Procedure, the place of a physical or mental examination must be specifi cally written into a court order compelling such an examination.

Exhibit 11-1 Motion for a Physical Examination

IN THE COMMON PLEAS COURT OF ASHLAND COUNTY, OHIOVERONICA WINBIGLERPlaintiff

v.

Ted Brockelsby Defendant

Case No. 08-GD-7744

MOTION FOR PHYSICAL EXAMINATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Ted Brockelsby, the Defendant in the above cause, and fi les this Motion under Rule 35 of the State Rules of Civil Procedure, to require Veronica Winbigler, the Plaintiff in the above cause to submit to a physical examination by Christina Rush, M.D., at 1411 Claremount Avenue, in the city of Ashland, and respectfully show the Court as follows:

continued



Exhibit 11-1 Motion for a Physical Examination (continued)

I.This is a case in which the Plaintiff alleges that she suffered permanent and disabling injuries as a result of an automobile accident on October 16, 2008, in the city of Ashland in this state. The Plaintiff alleges that said accident was directly and proximately caused by the negligence of the Defendant.

II.Defendant denies the allegations made by the Plaintiff concerning her injuries and disabilities. Accordingly, the physical condition of the Plaintiff is in controversy.

III.Defendant has heretofore requested the Plaintiff to submit to a voluntary examination, and that request has been denied.

IV.Defendant requests that the Plaintiff be ordered by the Court to submit to an independent medical exami-nation at the offi ces of Christina rush, M.D., 1411 Claremount, in the city of Ashland in this state, on December 20, 2008, at 9 a.m.

WHEREFORE, the Defendant herein, prays that the court grant this Motion in all respects and award all other and further relief to which Defendant is justly entitled.

Respectfully submitted

_________________________ Phyliss Zeigler, 0012345 Attorney for Defendant

RAYMO, RESNICK AND ZEIGLER 5592 Chester Avenue Cleveland, OH 44112 216/932-4545 Fax: 216/932-4546 E-mail: [email protected]

PROOF OF SERVICE

Defendant, Ted Brockelsby, served the foregoing Motion for Physical Examination, on Sarah Kolakowski, attorney for the plaintiff, Veronica Winbigler, by mailing a copy by ordinary United States Mail to her offi ce at 9924 Claremont Avenue, Ashland, OH 44816 on the 19th day of November, 2008.

_______________________ Phyliss Zeigler, 0012345

CHAPTER 11 Physical and Mental Examinations 77




THE PARALEGAL’S ROLE IN PHYSICAL AND MENTAL EXAMINATIONS _____________________

Some of the responsibilities the paralegal may share, in requesting a physical or a mental examination, include deciding on the number of examinations, choosing the examiner, considering the conditions of the examination, and requesting a copy of the examination report.

CHOOSING AN EXAMINER

As noted earlier in this chapter, Ohio recognizes that pro-fessionals other than physicians may be competent to con-duct certain types of mental and physical examinations. Naturally, whatever examiner is selected, he or she must possess the requisite education, experience, licenses, and skills. The examiner must have no ties to the party which has requested the examination or to his or her attorney.

CONSIDERING THE CONDITIONS OF THE EXAMINATION

Two important factors that often must be considered in requesting an examination are the expenses involved and the individuals who will be present for the examination.

EXPENSES INVOLVED IN AN EXAMINATION. According to Rule 35(A) of the Ohio Rules of Civil Procedure, when the court orders a physical or mental examination, it must specify not only the time and place and scope of the examination, but also the conditions and scope of that examination. Such conditions may include identifying who will be responsible for paying the expenses of a party who must travel to the county where the case is being heard in order to undergo a requested examination.

INDIVIDUALS PRESENT FOR THE EXAMI-NATION. The courts of Ohio generally have supported the right of the individual examined to have his or her own physician present when the examination is conducted. Moreover, it also seems clear that the individual may have

his or her attorney present for the examination. However, since Rule 35 makes absolutely no mention of this right, the courts still have the opportunity to decide such requests on a case-by-case basis, and it is therefore conceivable, though unlikely, that such a request would be denied.

REQUESTING A COPY OF THE REPORT

Rule 35 of the Ohio Rules of Civil Procedure permits a party who has been required to submit to an examina-tion to request a copy of the examination report should such a request be made, the opposing party must produce a copy of that report. The rule also outlines the contents of the report. The rule states quite specifi cally that the report must contain “the examiner’s fi ndings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition” (Ohio Civ. R. 35(B)(1)). Upon failure of that party to produce the report, the other side can ask the court to compel disclosure. If the report cannot be deliv-ered because the examiner has failed to write it, the court may order the examiner to undergo a deposition. The party who requested the examination will be required to pay the expenses of that deposition (Ohio Civ. R. 35(B)(1)).

Despite all this, the party who has undergone the exam-ination may decide not to ask for the examiner’s report. This is due to the fact that, like Rule 35 of the Federal Rules of Civil Procedure, Rule 35 of the Ohio rules is reciprocal. This means that if a party who has undergone an examination requests a copy of the examiner’s report, the other side can request copies of all reports in the exam-ined party’s possession involving the condition in question, regardless of when those reports were made. Upon failure of that party to produce such reports, the other side can ask the court to compel disclosure (Ohio Civ. R. 35(B)(1)).

• In Ohio, Rule 34 of the rules of Civil Procedure controls the production of documents and things for inspection, copying, and testing.

• In Ohio, Rule 34 of the Rules of Civil Procedure also controls the request for entry upon land for inspection and other purposes:

CHAPTER 12Request for Documents

KEY POINTS ________________________________________________________________________



Rule 34(A) Scope

Rule 34(B) Procedure

• Ohio’s rule covering the request for the production of documents and things for inspection, copying, and testing is similar to the federal rule.

• Ohio’s rule covering the request for entry upon land for inspection and other purposes is similar to the federal rule.

THE REQUEST FOR DOCUMENTS _____________________________________________________

The fi rst thing to notice about Rule 34 is that it was recently amended to account for the extensive use of electronically stored information used in court today, especially during the discovery stage. The very name of the rule was changed in 2008 to refl ect the evolving state of evidence gathering in Ohio. Previously, Rule 34 was entitled, “Production of documents, and things for inspection, copying, testing and entry upon land for inspection and other purposes.” Today Rule 34 is referred to as “Production of documents, elec-tronically stored information, and other tangible items and entry upon land for inspection and other purposes.”

ALTERNATIVE METHODS OF REQUESTING DOCUMENTS

Besides the formal request for documents and ESI man-dated under Rule 34 of the Ohio Rules of Civil Procedure,

there are other discovery methods available for obtaining documents and ESI needed for litigation. These include the request for documents and ESI at the deposition of a party and the subpoena duces tecum for a nonparty witness to produce documents and ESI at a deposition. Exhibit 12-1 represents a sample request for production of documents at the deposition of a party. Rule 33(C) of the Ohio Rules of Civil Procedure allows a party answering interrogato-ries to produce business records or ESI if the examination of those records answer an interrogatory.

Exhibit 12-1 Request for Production of Documents and ESI at the Deposition of a Party

IN THE COMMON PLEAS COURT OF CUYAHOGA COUNTY, OHIOCRONIN ENTERPRISES, INC.Plaintiff

v.

KAUFMAN ELECTRONICS INC.Defendant

Case No.009-C D-66589

NOTICE OF TAKING DEPOSITION UPON ORAL EXAMINATION

TO: Byron Reynolds, Attorney of Record for Defendant, Kaufman Electronics, in the above styled and numbered cause.

Please take notice that the deposition of Kris Kaufman, President and Chief Executive Offi cer of Kaufman electronics, whose address is 22870 International Parkway, South Euclid, Ohio, will be taken upon oral examination on June 10, 2009, beginning at 9 a.m., and continuing from day-to-day until completed. The witness is required to bring with her to the deposition those items in her custody or subject to her custody, care, or control, identifi ed in Exhibit “A” attached hereto.

continued

CHAPTER 12 Request for Documents 79




THE REQUEST FOR DOCUMENTS AND ESI TO PARTIES

Despite the other alternatives noted previously, the request for documents and ESI remains the most effi cient and effective way of obtaining documents and ESI in Ohio. Amended Rule 34(A) clearly delineates the scope of the request. The rule, which was amended in July of 2008, states:

(A) Scope Subject to the scope of discovery provisions of Civ. R. 26(B), any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the requesting party’s behalf (1) to inspect and copy any designated docu-ments or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be

obtained that are in the possession, custody, or control of the party upon whom the request is served; (2) to inspect and copy, test, or sample any tangible things that are in the possession, custody, or control of the party upon whom the request is served; (3) to enter upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property.

Prior to the 2008 amendments to the rule, it was not clear that electronically stored information was discover-able as part of a document request. The new amendment clarifi es the discoverability of ESI. Rule 34(C) makes it clear that a nonparty may also be required to turn over electronically stored information subject to the provisions of Rules 25(B) and 45(F).

Exhibit 12-1 Request for Production of Documents and ESI at the Deposition of a Party (continued)

You are invited to attend and cross-examine.

__________________________ Respectfully submitted, Shelli Davidson, 0019243 Attorney for Plaintiff

DAVIDSON AND DAVIDSON 99 Lee Road Cleveland Heights, OH 44112 Phone: 216/481-9223 Fax: 216/481-9222 E-mail: [email protected]

Certifi cate of Service

I hereby certify that a true and correct copy of the foregoing has been mailed by fi rst class mail, post-age prepaid to Byron Reynolds, 1608 Superior Avenue, Cleveland, OH 44118, on this 7th day of May, 2009.

_________________________ Shelli Davidson, 00019243

Attorney for Plaintiff



Generally, requests for the production of documents and ESI should be handled peaceably between the parties involved without resorting to the intervention of the court. According to Ohio Civil Rule 34(B), to be valid, a request must be very specifi c. The rule states:

The request shall set forth the items to be inspected either by the individual item or by the category and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be pro-duced, but may not require the production of the same information in more than one form.

The rule also indicates that, if a party does not specify the format that ought to be used for the delivery of that ESI, then the responding party may use any format that

the party uses to maintain the ESI in the ordinary course of business. The wording of the rule also indicated that gener-alized requests, such as those for “any and all” documents and ESI related to the lawsuit will not be permitted by the court. Also, the court will likely disallow any request that is so vague or imprecise that it does not give the party enough information to assemble the necessary documents and ESI. Naturally, as with any rule, there are exceptions. It is possible that the ESI or the documents required are so numerous as to require a broadly stated request. However, even in such a situation, the request must indicate with a reasonable degree of specifi city the categories of docu-ments sought. Usually, however, if an attorney is incapable of specifi cally detailing the documents and ESI needed for his or her case, discovery should probably begin with a deposition or a set of interrogatories in order to fi nd out what ESI and documents are available.

ESI AND DOCUMENT REQUESTS _____________________________________________________

PROTECTION OF DOCUMENTS ______________________________________________________

The response to a request for the production of documents and ESI must indicate either that the party will comply or that the party objects to the request or to part of the request. Grounds for such objections include that arguing or complying with the request violates the attorney-client privilege, the work-product privilege the physician-patient privilege, or the news reporter-news source privilege. Otherobjections include that the request is overbroad, duplicative,

or irrelevant. However, it is not a valid objection to state that the request is diffi cult, inconvenient, or expensive. Some documents may also be kept private by using a confi dentiality agreement or a protective order. The 2008 amendments to Rule 34 also permit a party to object to the format requested for ESI. When such an objection is made, the part making the objection must specify which format the party intends to use to comply with the request.

RESPONDING TO A REQUEST FOR DOCUMENTS _______________________________________

A request can be served on the plaintiff at any time after must be allowed at least 28 days to respond to the request the lawsuit has begun or on any other party when that party

(Ohio Civ. R. 34(B)) is served with process. The party receiving the request

ORGANIZING AND INDEXING THE DOCUMENTS AFTER PRODUCTION __________________

After a party has received the documents requested, they must be organized before they can be used prop-erly. Organizational plans vary from case to case: some cases are organized in chronological order; other cases are broken down according to several subject categories; still others may be organized in anticipation of upcoming liti-gation. The method of organization is less important than the fact that the documents are organized so as to help the

attorney and the paralegal locate documents as the case unfolds.

An index of the documents produced by all the par-ties is also essential to controlling the fi les throughout the lawsuit. The index can be limited to the document number, date, author, recipient, document type, and a brief sum-mary of the document’s content. Exhibit 12-2 is a sample introductory paragraph for a request for documents.

CHAPTER 12 Request for Documents 81




Exhibit 12-2 Introductory Paragraph for a Request for Documents

IN THE COMMON PLEAS COURT OF CUYAHOGA COUNTY, OHIOSTUART FINANCIAL BANKPlaintiff

JAMESON INDUSTRIES, et al.Defendant

Case No. 09-GD-7797

REQUEST FOR DOCUMENTS

TO: Carol Harrington, Attorney of Record for Defendant Jameson Industries, in the above styled and numbered cause.

Pursuant to Rule 34 of the Ohio rules of Civil Procedure, Stuart Financial Bank, plaintiff in the above cause, requests that Jameson Industries, defendant in the above cause, produce for inspection and copy-ing by Stuart, within 28 days of service hereof or at such other time as may be agreed upon by counsel for the parties, originals or legible copies of the documents and ESI requested herein. You are also requested to serve upon plaintiff within 28 days after service of this request a written response in accordance with Rule 34 of the Ohio Rules of Civil Procedure.

INSPECTION OF PROPERTY __________________________________________________________

The request for documents is directed only at papers and ESI. However, a case will often involve tangible property, such as a piece of equipment or a parcel of real estate. Like Rule 34 of the Federal Rules of Civil

Procedure, Rule 34 of the Ohio Rules provides a method by which the parties or their representatives can inspect property for the purposes of measuring, photographing, or testing.

• In Ohio, Rule 36 of the Rules of Civil Procedure controls request for admission.

Rule 36(A) Availability; procedures for use

Rule 36(B) Effect of admission

Rule 36(C) Document containing request for admission

• Ohio’s rule covering the request for admission is patterned after the federal rule but has added some

features that are peculiar to problems that have appeared in the Ohio courts.

• Ohio Rule 36 replaces R.C. 2317.31 under which parties were required to admit to the genuineness of a paper.

• Ohio Rule 36 is much more liberal than the old statutory provision of RC 2317.31.

CHAPTER 13Request for Admission

KEY POINTS ________________________________________________________________________



THE REQUEST FOR ADMISSION ______________________________________________________

The request for admission is a request by one party in a lawsuit to another party, asking the second party to admit to the truthfulness of some fact or opinion. The request may also ask the party to admit to the genuineness of a document. In Ohio the request is regulated by Rule 36 of the Ohio Civil Rules of Procedure. The rule is pat-terned after the federal rule. However, it has recently been amended in reaction to some problems that have appeared in the Ohio courts. Thus, the Ohio rule is more specifi c than the federal rule in relation to the responses that can be made to such requests. Rule 36 also replaces RC 2317.31, which allowed only the admission as to the genuineness of a document. Only parties to the lawsuit can be served with a request for admission.

PURPOSES OF THE REQUEST FOR ADMISSION

The main purpose of the request for admissions is to sim-plify a lawsuit by reducing the number and the nature of the points in controversy. The simplifi cation of the points in controversy helps to simplify many of the other matters involved in the lawsuit.

USES OF THE REQUEST FOR ADMISSION

The language of Rule 36(A) of the Ohio Rules of Civil Procedure is quite specifi c in setting down the uses of the request for admission. First, a request may be used to authenticate the genuineness of certain facts or opinions. Second, it could be used to authenticate the application of the law to the facts. Finally, the request can be used to authenticate the genuineness of certain documents.

As noted previously, this represents an expansion of the role of the request for admission in Ohio. Under the old statute a request could only be used to authenticate the genuineness of documents (Former RC 2317.31). The former statute was repealed in 1970 to eliminate the con-fl ict and to prevent confusion as to which authority, the rule or the statute, took priority.

SCOPE OF THE REQUEST FOR ADMISSION

The type and amount of evidence that can be sought by discovery is much broader than that which can be pro-duced at trial. A reference in Ohio Rule 36(A) to Ohio Rule 26(B) makes it quite clear that this broad scope of discovery also applies to requests. The rule (Ohio Civ. R. 36(A)) states that:

(a) party may serve upon any other party a written request for the admission, for purposes of the pend-ing action only, of the truth of any matters within the scope of Rule 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

In addition, if the request asks for an admission or admissions in relation to a document or documents, that document or those documents must be served along with the request. The only exception occurs if the party being asked to respond to the admission has already been given a copy of the document or documents, or if a copy or copies are already available for that party’s inspection (Ohio Civ. R. 36(A)).

DRAFTING THE REQUEST FOR ADMISSION ____________________________________________

Properly drafted requests for admission can save time and money and can often lead to early settlement of a case. Therefore, great care must be taken in preparing for and actually drafting the request.

TIMING OF THE REQUEST

A request for admission can be served on the plaintiff at any time after the lawsuit has begun or on any other party when that party is served with process. The party receiving the request for admission must be allowed at least 28 days to respond to the request. There is no requirement to apply to the court for permission to serve a request for admission (Ohio Civ. R. 36(A)).

FORM OF THE REQUEST FOR ADMISSION

The request for admission is different from most other types of discovery because a party’s failure to respond to a request for an admission means that the matter is deemed to have been admitted, even if the matter was simply over-looked. This would not be a big problem were it not for the fact that many attorneys will include admission requests within other discovery tools such as a set of interrogato-ries or a request for documents and EI. To deal with this problem, Rule 36 was amended in 2005 to require any document that includes even a single request for an admis-sion to include in the caption an indication that a request for admission is included in that document. The idea is to prevent the other party from overlooking a request that is

CHAPTER 13 Request for Admission 83




buried within a set of interrogatories or a document and ESI request. Following this technique means that all such requests will be “red-fl agged” by a reference in the cap-tion, making them diffi cult to overlook.

ELECTRONIC VERSIONS OF REQUESTS FOR ADMISSION

The fact that many attorneys include requests for admis-sions in other discovery tools created another problem for the courts. This new problem was created by attorneys who responded to admission requests without proper reference to the request itself. Moreover, even when an attorney referred to the admission to which he or she was respond-ing, the request and the response were often in different documents, making it diffi cult for a reader to determine which responses dealt with which requests. To prevent this type of confusion, Rule 36 was amended in 2004 to require the responding party to repeat the request and to then add

his or her response immediately after that request. The Rule states it this way:

The party to whom the requests for admissions have been directed shall quote each request for admission immedi-ately preceding the corresponding answer or objection (Ohio Civ. R. 36(A)).

Because the rule now requires that the responding party rewrite the request, the rule also requires the party making the request to supply the responding party with an electronic copy of the request on a disk, by e-mail, or by some other electronic means that the parties can agree upon. The idea behind this maneuver is to cut down on the amount of retyping that the responding party must do in order to comply with the new requirement that demands a retyping of the request before the response can be tran-scribed. The inclusion of an electronic fi le permits the responding party to simply electronically “cut and paste” the request before adding a response.

Exhibit 13-1 Request for Admission

IN THE COMMON PLEAS COURT OF CRAWFORD COUNTY, OHIOMARIA CORSIPlaintiff

GERALD FISCHER CLAREMONT PHARMACEUTICALS, INC.Defendant

Case No. 10-GD-31 75

REQUEST FOR ADMISSION

PLAINTIFF, Maria Corsi (“Corsi”) requests that the DEFENDANTS, Gerald Fischer and Claremont Pharmaceuticals, Inc. (“Claremont”), within twenty-eight (28) days after the service of this request sepa-rately admit in writing, pursuant to Rule 36 of the Ohio Rules of Civil Procedure and for the purposes of this action only, the truth of the following statements:

A. That each of the following documents listed below, the best copies of which are attached as Appendix A.

(1) is genuine and is a complete and accurate representation of the actual writing which the document purports to represent;

(2) was prepared or sent by an offi cer or employee of Claremont during the existence of his or her employment with Claremont;

(3) was directed to or concerned matters within the scope of the employment of said offi cer or employee of Claremont;

(4) was written and sent on or about the date listed on the document;

continued



Exhibit 13-1 Request for Admission (continued)

(5) was written on the basis of the offi cer’s or employee’s fi rsthand knowledge of the matter contained therein;

(6) was written in the ordinary course of business of Claremont; (7) was kept as part of the routine employee evaluation process at Claremont; (a) Corsi employee evaluation of September 6, 2007. (b) Corsi employee evaluation of December 3, 2007. (c) Corsi employee evaluation of January 12, 2008. (d) Corsi employee evaluation of February 9, 2008. (e) Corsi employee evaluation of March 24, 2008. (f) Corsi employee evaluation of April 30, 2008. (g) Memo of February 7, 2008. (h) Memo of February 28, 2008. (i) Memo of March 15, 2008. (j) Memo of April 12, 2008. (k) Memo of May 20, 2008. B. That the best copy of each of the documents listed below and attached as Appendix B. (1) is genuine and is a complete and accurate representation of the actual writing which the

document purports to represent; (2) was prepared or sent by an offi cer or employee of Claremont during the existence of his or

her employment with Claremont; (3) was directed to or concerned matters within the scope of the employment of said offi cer or

explode of Claremont; (4) was written and sent on or about the date listed on the document; (5) was written on the basis of the offi cer’s or employee’s fi rsthand knowledge of the matter

contained therein; (6) was written in the ordinary course of business of Claremont; (7) was sent as part of the dismissal process involving Corsi: (a) Letter of September 6, 2008. (b) Letter of October 31, 2008. (c) Letter of December 3, 2008. (d) Letter of February 7, 2009. (e) Letter of February 14, 2009. (f) Letter of March 14, 2009. (g) Letter of June 28, 2009. (h) Letter of September 12, 2009. C. That the document entitled CLAREMONT PHARMACEUTICALS, INC. EMPLOYEE HANDBOOK,

the best copy of which is attached as Appendix C. (1) is genuine and is a complete and accurate representation of the actual writing that the docu-

ment purports to represent; (2) was distributed to all employees at Claremont between August 19, 1999, and September

19, 2007. (3) was received by Corsi on August 19, 2007.

continued






D. That each of the following documents listed below, the best copies of which are attached as Appendix D.

(1) is genuine and is a complete and accurate representation of the actual writing that the docu-ment purports to represent;

(2) was prepared or sent by an offi cer or employee of Claremont during the existence of his or her employment with Claremont;

(3) was directed to or concerned matters within the scope of the employment of said offi cer or employee of Claremont;

(4) was written and sent on or about the date listed on the document; (5) was written on the basis of the offi cer’s or employee’s fi rsthand knowledge of the matter

contained therein; (6) was written in the ordinary course of business of Claremont; (7) was kept as part of the routine employee evaluation process at Claremont; (a) Research report on Clarotec dated September 20, 2008. (b) Research report on Clarotec dated October 16, 2008. (c) Research report on Clarotec dated October 30, 2008. (d) Research report on Clarotec dated May 28, 2009. (e) Research report on Clarotec dated June 19, 2009. (f) Research report on Clarotec dated November 2, 2009. (g) Research report on Clarotec dated December 20, 2009. (h) Research report on Clarotec dated December 23, 2009. E. That each of the following documents listed below, the best copies of which are attached as

Appendix E. (1) is genuine and is a complete and accurate representation of the actual writing which the

document purports to represent; (2) was received by an offi cer or employee of Claremont during the existence of his or her

employment with Claremont; (3) was received within the scope of the employment of said offi cer or employee of

Claremont; (4) was received on or about the date listed on the document; (5) was kept in the ordinary course of business of Claremont (6) was kept as part of the routine employee evaluation process at Claremont; (a) Letter of September 16, 2008. (b) Letter of September 22, 2008. (c) Letter of December 23, 2008. (d) Letter of January 12, 2009. (e) Letter of January 18, 2009. (f) Letter of February 7, 2009. (g) Letter of July 1, 2009. (h) Letter of October 31, 2009.

continued




F. That each of the following statements is true: (1) Claremont is incorporated under the laws of the state of Ohio and has its principal place of

business in Bucyrus, Ohio; (2) Claremont is and was during the calendar years of 1999–2008, engaged in the manufacture

and sale of Clarotec; (3) The Food and Drug Administration banned the manufacture and sale of Clarotec on or

about September 9, 2008. (4) Clarotec has not yet been reclassifi ed as a safe drug by the FDA; (5) Corsi was discharged on or about September 9, 2009; (6) Corsi received favorable employee evaluations from September of 2007 to September of 2009; (7) Corsi received all scheduled pay increases between September of 2007 and September of

2009.

DATED: Gallon, OHMarch 17, 2010. __________________________ Kent Gerard 00322251 Attorneys for Maria Corsi

Laurence, Polaski and Gerard 1202 Diamond Street Gallon, OH Phone: 419/755-4912 Fax: 419/755-4911 E-mail: [email protected]

TO: Stivic, Bronson, and Alvarez Attorneys for Defendant Claremont Pharmaceutical, Inc. and CEO of Claremont 1220 Main Street Bucyrus, OH

RESPONDING TO THE REQUEST FOR ADMISSION ______________________________________

As noted above, the party receiving the request for admis-sion must be allowed at least 28 days to respond to the request. Great care must be taken in responding to requests for admission because carelessly drafted responses could result in inadvertent admissions.

FORM OF THE REPONSE TO A REQUEST FOR ADMISSION

As noted above, in 2004 Rule 36 was amended to require that every response to a request for admission fi rst quote the request. The objective of this requirement is to make certain

that the reader can easily match the response to the original request. Since federal Rule 36 does not include this require-ment, it is especially easy for a paralegal whose supervisory attorney practices in both state and federal court to overlook this requirement.

ALTERNATIVE RESPONSES TO THE REQUESTFOR ADMISSION

The party may either admit or deny the matter in a request. Recall that each request is listed separately, allowing a careful response for each. Each admission or denial should





be honest and straightforward. In addition, each denial must “fairly meet the substance of the requested admission” (Ohio Civ. R. 36(A)).

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insuffi cient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(C), deny the matter or set forth reasons why he cannot admit or deny it. (Ohio Civ. R. 36(A))

OBJECTIONS TO THE REQUEST FOR ADMISSION

Any and all objections to a request for admission must be made with particularity, which means that the specifi c rea-sons for the objection must be included. As with all other discovery techniques, grounds for objecting to a request for admissions include arguing that complying with the request violates the attorney-client privilege, the work-product privilege, the health care privilege, or the news reporter-news source privilege.

WITHDRAWALS AND AMENDMENTS

After an admission has been made, it is generally consid-ered to have been conclusively proven. However, it is pos-sible for the party who has entered an admission to fi le a motion with the court asking that an admission be with-drawn or amended.

AVAILABLE SANCTIONS

Rule 36(A) of the Ohio Rules of Civil Procedure allows the party who has requested the admission to fi le a motion with the court to compel the other party’s coopera-tion. Additionally, the rule allows the court to determine

whether the other party fi led a proper answer or made an appropriate objection. If the court decides that the answer is not appropriate or that the objection is unjustifi ed, the court can order that the matter has been admitted. In the alternative, the court can order the party to fi le an amended answer. The court also has the power to compel the parties to settle the issue at a pretrial conference or at some other time before the opening of the trial.

Since, by direct reference, Rule 37(A)(4) applies to motions made to compel cooperation with a request for admissions, the expenses for such a motion are paid by the party the court rules against. Ohio Civ. R. 37(A)(4) states:

(4) Award of expenses of motion If the motion is granted, the court shall, after opportunity for hearing, require the party . . . who opposed the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court fi nds that the opposition to the motion was sub-stantially justifi ed or that other circumstances make an award of expenses unjust.

If the motion is denied, the court shall, after oppor-tunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party . . . who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court fi nds that the making of the motion was substantially justifi ed or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

LIMITATION ON THE RESPONSES TO A REQUEST FOR ADMISSIONS

It is important to remember that, in Ohio, any admission made in a case is valid only for that particular case. It cannot be used for any other purpose, nor can it be used in any other legal proceeding (Ohio Civ. R. 36(B)).
