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Rule 16 – Pretrial Procedure

May 14, 2021 | Civil Procedure, Ohio

(A) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and
(5) facilitating settlement.

Attorneys, their clients, and unrepresented parties shall endeavor in good faith to agree on all the schedules contemplated by this rule and courts shall consider such agreements in the establishment of any such schedule.

(B) Scheduling.

(1)Scheduling Order. Except for matters listed in Civ. R. 1(C), the court shall issue a scheduling order:

(a) after receiving the parties’ report under Civ. R. 26(F);
(b) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference; or
(c) sua sponte by the court.
(2)Time to Issue. The court shall issue the scheduling order as soon as practicable, but unless the court finds good cause for delay, the court shall issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has responded to the complaint.
(3)Contents. The scheduling order may:

(a) limit the time to join other parties, amend the pleadings, complete discovery, and file motions;
(b) modify the timing of disclosures under Civ. R. 26(A);
(c) modify the extent of discovery;
(d) provide for disclosure, discovery, or preservation of electronically stored information;
(e) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(f) set dates for pretrial conferences and for trial; and
(g) include other appropriate matters.
(4)Modifying a Schedule. A schedule may be modified only for good cause and with the court’s consent.
(C) Attendance and Matters for Consideration at a Pretrial Conference.

(1)Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.
(2)Matters for Consideration. At any pretrial conference, the court shall consider and take appropriate action on the following matters:

(a) The possibility of settlement of the action;
(b) The simplification of the issues;
(c) Itemizations of expenses and special damages;
(d) The necessity of amendments to the pleadings;
(e) The exchange of medical reports and hospital records (The production by any party of medical reports, medical records, hospital records does not constitute a waiver of the privilege granted under section 2317.02 of the Revised Code.);
(f) The number of expert witnesses;
(g) The preservation of electronically stored information and other information held by the parties or third parties;
(h) The timing, methods of search and production, and the limitations, if any, to be applied to the discovery of documents and electronically stored information;
(i) Disclosure and the exchange of documents obtained through public records requests;
(j) Any agreements or decisions on the sharing or shifting of costs pursuant to Rule 26(C)(2);
(k) The adoption of any agreements by the parties for asserting claims of privilege or for protecting designated materials after production;
(l) The imposition of sanctions as authorized by Civ. R. 37;
(m) The possibility of obtaining:

(i) Admissions of fact;
(ii) Agreements on admissibility of documents and other evidence to avoid unnecessary testimony or other proof during trial.
(n) Disposing of pending motions;
(o) Determination of the applicable deadline for disposition of the case pursuant to Sup. R. 39 and 42, and a timetable for:

(i) initial disclosures of known and reasonably available non-privileged, non-work product documents and things that support or contradict the specifically pleaded claims and defenses;
(ii) joining parties;
(iii) amending the pleadings;
(iv) mediation or other alternative dispute resolution requested by parties;
(v) exchanging lists of lay witnesses, expert witnesses and reports, and exhibits for trial;
(vi) completing discovery;
(vii) filing of motions, responses, replies and decisions;
(viii) further case management conferences; and
(ix) a trial date, preferably one agreed-upon by the parties.
(p) Facilitating in other ways, the just, speedy, and inexpensive disposition of the action.
(D) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.
(E) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.

Ohio. Civ.R. 16

Effective:July 1, 1970; amended effective July 1, 1993; amended effective July 1, 2008; amended effective July 1, 2020.

Staff Note (July 1, 2008 Amendment

New subsections (8) and (9) are added to clarify that issues relating to discovery of documents and electronically stored information are appropriate topics for discussion and resolution during pretrial conferences. Other linguistic changes, including those made to the subsections (7), (11) and (12) and to the final paragraph of Rule 16, are stylistic rather than substantive.

Proposed Staff Note (July 1, 2020 Amendment)

Civ. R. 16 has been amended to bring the Ohio rule closer to the federal rule, while still allowing for Ohio courts to decide whether to hold a scheduling conference. Civ. R. 16(A) lists several purposes for why a scheduling conference may be held. In addition, the last paragraph of Civ. R. 16(A) provides that parties will attempt to agree on the schedules contemplated by Civ. R. 16, and courts will endeavor to respect the agreements of the parties. This paragraph is consistent with the concept of shared responsibility among parties and courts in Civ. R. 1.

Similar to the prior version of Civ. R. 16, Civ. R. 16(A) still provides that holding a scheduling conference is permissive, not mandatory. However, Civ. R. 16(B) requires that in all cases, except those set forth in Civ. R. 1(C), a scheduling order must be issued by the court. The purpose of this requirement is to promote greater consistency, predictability, and transparency for attorneys, parties, and unrepresented parties in courts across Ohio.

Civ. R. 16(B)(1) clarifies that a scheduling order must be issued after the court receives the parties’ Civ. R. 26(F) report or after the court holds a scheduling conference. If no report is submitted or the court does not hold a scheduling conference, the court must issue the scheduling order sua sponte.

Civ. R. 16(B)(2) specifies the timing requirements by which a scheduling order must be issued, based on the date that any defendant has been served with the complaint or that any defendant has responded to the complaint. This subsection does not require a court to wait for all defendants to be served with the complaint or respond to the complaint before entering a scheduling order.

Civ. R. 16(B)(3) lists potential content that a court may include in a scheduling order.

Civ. R. 16(C) describes a variety of items that a court may address at a scheduling conference, including a timetable to address deadlines for discovery and various disclosures, dispositive motions, and trial. Many of the items now listed in Civ. R. 16(C) were included in the prior version of Civ. R. 16.

Civ. R. 16(E) and (F) are identical to these same subsections in the federal rule.