Parties may obtain discovery by one or more of the following methods: deposition upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, the frequency of use of these methods is not limited.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
If the motion for a protective order is denied in whole or in part, the court, on terms and conditions as are just, may order that any party or person provide or permit discovery. The provisions of Civ. R. 37(A)(4) apply to the award of expenses incurred in relation to the motion.
Before any person moves for a protective order under this rule, that person shall make a reasonable effort to resolve the matter through discussion with the attorney or unrepresented party seeking discovery. A motion for a protective order shall be accompanied by a statement reciting the effort made to resolve the matter in accordance with this paragraph.
Ohio. Civ.R. 26
Staff Note (July 1, 2012 Amendment)
Civ.R. 26(B)(5) is amended to clarify the scope of expert discovery and align Ohio practice with the 2010 amendments to the Federal Rules of Civil Procedure relating to a party’s ability to obtain discovery from expert witnesses who are expected to be called at trial. The amendment provides work product protection for draft reports and communications between attorneys and testifying experts, except for three categories of communications: communications that relate to compensation for the expert’s study or testimony; communications containing facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; and communications containing any assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
Staff Notes (July 1, 2008 Amendment)
Several provisions of the rule are amended to clarify that discovery of electronically stored information is permitted.
Civ. R. 26(A), (B)(1) and (B)(3) include explicit references to discovery of electronically stored information, a type of discovery that was arguably covered in the broad definition of discoverable materials previously articulated in the rule.
Civ. R. 26(B)(4) is new language that tempers the virtually unlimited discovery traditionally authorized by Rule 26(B)(1) by providing that, as is the case with all discovery, a party is not required to produce electronically stored information if production is too burdensome or expensive compared to the potential value of the discovery. These provisions also provide guidance to trial courts for resolving disputes over claims of excessive burdensomeness and expense. The last sentence of this section reiterates the power that trial judges inherently possess to regulate discovery of electronically stored information, including allocating costs and other details related to production of electronically stored information.
Existing Rule 26(B)(4) is renumbered as 26(B)(5) but no other changes are made.
Civ. R. 26(B)(6)(a) and (b) apply to all discovery not just electronically stored information. Rule 26(B)(6)(a) establishes procedures parties must follow when withholding documents (including electronically stored information) based on privilege.
Civ. R. 26(B)(6)(b) provides a mechanism for a party to retrieve inadvertently produced documents from an opponent. This is often called a “clawback” provision. A similar provision is included in the federal rules and the rules of other states that have modified their civil rules to accommodate e-discovery. It applies to all materials produced by a party, not just electronically stored information.
The rule directs a party that has inadvertently provided privileged documents to an opponent to notify the opponent. Once notification is received, the recipient must “return, sequester, or destroy” the inadvertently proceeded information and not use the information in any way. A procedure is also provided for the court to resolve the claim of privilege relating to the materials. The amendments to Rule 26(B)(6)(b) do not conflict with the new Ohio Rule Prof. Conduct 4.4(b) requirement that an attorney who “knows or reasonably should know that the document was inadvertently sent” must “promptly notify the sender.” Rather, the two rules work in concert: Rule 26(B)(6)(b) is triggered when actual notification is received from the sender that the material was inadvertently sent, and Ohio Rule Prof. Conduct 4.4(b) is animated when the recipient realizes that the material provided by an opponent is likely privileged.
Staff Notes (July 1, 2020 Amendment)
Civ. R. 26 has been amended to bring the Ohio rule closer to the federal rule in many respects.
Rule 26(B)(1)
Civ. R. 26(B)(1) incorporates nearly identical language as the federal rule in Fed. R. Civ. P. 26(b)(1), as amended in 2015. Civ. R. 26(B)(1) now includes language bearing on proportionality, which contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. The scope of available information, including the increase and pervasiveness of electronically stored information, has greatly increased both the potential cost of wide- ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. The present amendment reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.
This change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.
The parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party. Many of these uncertainties should be addressed and reduced in the parties’ Civ. R. 26(F) conference and in scheduling and pretrial conferences with the court. But if the parties continue to disagree, the discovery dispute could be brought before the court. A party claiming undue burden or expense ordinarily has far better information – perhaps the only information – with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.
With regard to the parties’ relative access to relevant information, some cases involve what often is called “information asymmetry.” One party – often an individual plaintiff – may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.
The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.
Rule 26(B)(3)
This provision has been added to include a requirement that parties, in most cases, exchange initial disclosures without awaiting discovery requests. The language of Civ. R. 26(B)(3) closely follows the federal rule. The purpose of the initial disclosure obligation is to accelerate the exchange of information about the case, consistent with Civ. R. 1 and 26(B)(1).
Rule 26(B)(5)
This subsection is revised to preserve the limitation on production of electronically stored information (“ESI”) if it is from a source not reasonably accessible due to undue burden or cost. The court may still order production upon a showing of good cause. The amended rule eliminates the prior factors to be considered when determining if good cause exists and relies instead on the general concepts of proportionality contained in Rule 26.
Rule 26(B)(6)
Civ. R. 26(B)(6) has been added to clarify that courts have authority to modify the frequency and extent of discovery, including consideration that bear on proportionality to Civ. R. 26(B)(1). This language in Civ. R. 26(B)(6) is similar to the language in Fed. R. Civ. P. 26(b)(2)(A) and (C).
Rule 26(B)(7)
The Ohio Civil Rules had not previously required experts to provide a written report. The Local Rules of some counties required a written report while many others did not. Interrogatories directed to the subject matter on which an expert may testify have in practice shown to be an insufficient means to ascertain an opposing expert’s opinions and the grounds upon which they are based. The absence of a written report frequently puts counsel in the position of having to bear the substantial time and expense of a deposition in order to learn the opinions of an opposing party’s expert. Requiring a written report from experts setting forth all opinions and the basis and reasons for such opinions may, in many cases, obviate the need for a deposition, and will lessen the time and significant expense associated with expert discovery. So will permitting the deposition of experts only after the mutual exchange of expert reports. Further expense can be lessened by permitting healthcare providers to testify as an expert as to matters addressed in medical records, without the necessity of writing a separate medical report, if such records are timely provided to opposing counsel. Subsection (B)(7)(h) is the same as Fed. R. Civ. P. 26(b)(4)(D) and protects facts and opinions held by an expert who is not expected to be called as a witness at trial.
Rule 26(F)
The changes in the proposed rules are best highlighted and understood in contrast to the Federal Rules. The differences between proposed Ohio’s Civ.R. 26(F) and Fed. Civ.R. 26(F) are as follows:
1. Civ.R. 26(F)(1) – The Ohio Rule reads, “Except those matters excepted under Civ.R. 1(C) [.][.]” The Federal Rule reads, “Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) [.][.]”
2. Civ.R. 26(F)(1) – The Ohio Rule states that “attorneys and unrepresented parties shall confer as soon as practicable[.][.]” The Federal Rule states that “the parties must confer as soon as practicable[.][.]”
3. Civ. R. 26(F)(1) – The Ohio Rule reads, at the end, “21 days before a scheduling conference is to be held.” The intent with this language of the proposed Ohio Rule is to simplify the setting of the scheduling conference and to give the court greater flexibility in setting that conference. The Federal Rule reads, at the end, “21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b).”
4. Civ.R. 26(F)(2) – The Ohio Rule reads, at the end of the second to last sentence, “and for filing with the court[.][.]” The Federal Rule reads, at the end of the second of the second to last sentence, “and for submitting with the court[.][.]”
5. Civ.R. 26(F)(3) – The Ohio Rule uses the word “shall” and the Federal Rule uses the word”must.”
6. Civ.R. 26(F)(3)(e) – The Ohio Rule addresses public records disclosure as part of the discovery plan whereas the Federal Rule does not.
7. Civ.R. 26(F)(3)(f) – The Ohio Rule ends with “of protection as trial-preparation materials[.][.]” The Federal Rule (Fed. Civ.R. 26(F)(3)(D) ) ends with “as trial-preparation materials, including – if the parties agree on a procedure to assert these claims after production – whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502 [.][.]”
8. Civ.R. 26(F)(3)(b) and (i) – these subsections are not included in Fed. Civ.R. 26(F)(3).
9. Civ.R. 26(F)(4) – This subsection was removed from the proposed Ohio Rules, but it is included in the Federal Rules.
10. This amendment introduces to Ohio’s civil rules the concept of an early, mandatory conference among the attorneys and any unrepresented party, and requires the filing of a written report outlining the results of that conference. This amendment also requires that the discovery plan, to which counsel and the parties agree, be in compliance with the time limitations of Sup.R. 39 and 42.