Ohio Supreme Court Archives

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July 4, 2020

The Ohio Supreme Court amends civil rules: What that means for practice in Ohio trial courts

Ohio has made the leap to adopt new rules of civil procedure identical to ones that are already in place on the federal level. The underlying notion in all of the rule amendments is a reduction of the cost of litigation. Let’s hope the rules play out that way.

In its annual rules update, the Ohio Supreme Court amended the Ohio Rules of Civil Procedure related to waiver of service, pretrial procedure, and discovery. The new amendments should be a welcome addition for all litigants in Ohio as they focus on efficiency. The rules took effect on July 1, 2020.

Discovery now must be proportional to the case

In a move to streamline cases and hopefully decrease litigation costs, Civ.R. 26(B)(1), regarding the scope of discovery, has been completely replaced with identical language from Fed. R. Civ. P. 26(b)(1). Narrowing the scope of discovery, the new rule requires discovery to be proportional to the needs of the case. Attorneys now have the right to object to and limit responses to overbroad discovery requests based upon the amount in controversy, the parties’ access to relevant information and resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. However, the staff notes of the rule specifically states that the responsibility is on both parties, collectively, to consider proportionally and resolve discovery disputes. Since discovery disputes are hardly litigated to the extent they make case law, parties will need to consider the preferences of the Judge and Court they are assigned when raising these new issues.

The rules also require the parties to prepare a discovery plan stating the parties’ views and proposals on various aspects of the discovery stage of litigation.

Initial Disclosures, Pretrial and Scheduling Conferences

Courts may schedule initial pretrial conferences to be held and shall issue a scheduling order for the case around 60 days after a defendant has answered or otherwise responded to a complaint. Civil Rule 26 also requires the parties to make initial disclosures to one another, without awaiting a discovery request. These disclosures are required prior to the first pretrial or case management conference (for most cases) and should help streamline the matter for all litigants and the Court. Civil Rule 26(F) requires the parties to meet and file a report with the Court, which should aid in counties where case schedules are not automatically generated.

Experts

In another move to reduce costs of retaining and deposing experts, expert reports are now required prior to any testimony of an expert witness. For medical experts, this can be the medical expert’s own records, instead of a report. Depositions can be taken only after a mutual exchange of the reports.

Electronically Stored Information (ESI)

The electronically stored information provision of Civ.R. 26 was shortened, taking out the factors the court used to determine whether a requesting party showed good cause in requesting the production of ESI.

Waiver of Service

Under Civ.R. 4, a plaintiff may now request that a defendant waive service of a summons for any civil action filed in a Court of Common Pleas. This should allow for more transparency among the litigants at the onset of lawsuit, especially when pre-suit negotiations have been ongoing. Civ.R. 4.7 lays out the process and specific requirements for waiving service, limits waiver to Courts of Common Pleas, and imposes a duty on individuals, corporations, partnerships, or associations to avoid unnecessary expenses involved in serving the summons. Notably, the rules allow for notice by “other reliable means” which can include electronic communications such as email.

Benefits of Waiving Service

Waiver of service of summons can be beneficial for both parties to a lawsuit. A plaintiff can avoid the costs associated with preparing and serving a summons, and if a defendant timely returns a waiver, then they do not need to serve their answer to the complaint until 60 days after the request was sent (90 days if defendant is outside of the U.S.). Prior to Civ.R. 4.7(D), a defendant only had 28 days to respond to a complaint after being served, and many times this left newly engaged defense counsel seeking an extension of time to answer. Further, Civ.R. 4.7(E) does not require proof of service by a plaintiff if they file a waiver. Instead, the filing of a waiver by a plaintiff acts as if a summons and complaint had been served at the time of filing.

Consequences when a Defendant Fails to Waive Service

There could be consequences for a defendant should they choose not to waive service without good cause. A court may require a defendant to pay the expenses incurred in making service and the reasonable expenses, including attorney’s fees, of any motion required to collect the service expenses.

For the full text of the amended rules effective July 1, 2020 see: http://www.supremecourtofohio.gov/ruleamendments/documents/4.22.20%20Posting.pdf

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Celia received her undergraduate degree from The Ohio State University and earned her J.D. from Capital University School of Law. Prior to joining Perez Morris, Celia was an attorney with the Columbus office of Taft Stettinius & Hollister. Read more

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November 2, 2018

Ohio Supreme Court Strengthens Voluntary Abandonment Doctrine

On September 27, 2018, in a decision that reverses two of its prior decisions, the Ohio Supreme Court strengthened the voluntary abandonment defense used by employers to argue against temporary total compensation in a workers’ compensation claim. The opinion in State ex rel Klein v Precision Excavating and Grading Co. holds that temporary total compensation is not payable in a claim when the injured worker voluntarily removes himself from his former position of employment for reasons unrelated to the claim, even if the claimant remains disabled at the time of the separation from employment.

Supreme Court Ruling on Klein v. Precision Excavating & Grading Company

In Klein, the injured worker informed his employer on October 31, 2014 that he was moving to Florida, and asked about the procedures he needed to follow to properly quit his job. On November 3, 2014 he told a co-worker that he planned to quit in two weeks and move to Florida. He was then injured on November 5, 2014, and did not return to work after that date. His doctor certified a period of temporary total disability from the date of injury to an estimated date of January 5, 2015. On November 13, 2014, the claimant informed the Ohio BWC that he planned to move to Florida on November 20, 2014. At administrative hearings before the Industrial Commission of Ohio, compensation was only granted for the closed period from November 6, 2014 through November 19, 2014. The Industrial Commission found that the claimant had abandoned his employment as of November 20, 2014, for reasons unrelated to the claim, and was not eligible for temporary total compensation from November 20, 2014 forward.

Employee’s Own Actions Preclude Workers’ Compensation Payment

Klein filed a complaint in mandamus in the Tenth District Court of Appeals, disputing the Industrial Commission’s decision to limit his compensation to the period through November 19, 2014. The Court of Appeals granted a limited writ of mandamus and returned the case to the Industrial Commission, with instructions to determine whether the claimant was physically capable of performing his former position of employment on November 20, 2014, per prior case law. The matter was appealed to the Supreme Court and the Supreme Court reversed the Court of Appeals and held that the evidence supports a finding that it was Klein’s intention to leave Precision Excavating permanently and therefore his move to Florida was a voluntary abandonment of his employment that precludes payment of temporary total compensation after November 19, 2014. The Court held that it was Klein’s own actions that prevented him from returning to his former position of employment and not the workplace injury.

Ohio Supreme Court’s Striking Departure Favors Employers

This is a striking departure from prior decisions of the Ohio Supreme Court and is favorable to employers. In its analysis, the Supreme Court acknowledged that in the various voluntary abandonment cases it had issued over the years, it had essentially created two lines of precedent for voluntary abandonment. There was one set of rules granting compensation for employees who are terminated for cause while disabled, and another set of rules denying compensation for employees who voluntarily left the workplace. In Klein, the Court held that in both situations the relationship between the industrial injury and the loss of earnings is severed. Based on this decision employers can successfully argue voluntary abandonment against the payment of compensation, even if the injured worker is disabled at the time of the abandonment.

Related Supreme Court Rulings Not Impacted

It should be noted that the Supreme Court did not disturb the decisions Gross II, where the termination was causally related to the injury or Cordell, where the injury resulted in the discovery of the work rule violation. Under both fact patterns, temporary total compensation will not be precluded by a voluntary abandonment argument.

Posted by Beth Weeden