Estate and Trust Dispute Center of Ohio

Ohio’s Rules of Civil Procedure govern how civil cases are run from the initial filing and service to discovery to final judgment. The Rules are updated annually with an effective date of July 1. And, most importantly for Reminger’s Estates, Trusts, and Probate Litigation Practice Group, the Rules govern most probate litigation including trusts contests, beneficiary disputes, and declaratory judgments. So, let’s take a look at some key updates for 2023.

1. Remote Presence and Email Service. Consistent with last year’s changes to the Rules of Superintendence, the Civil Rules continue to expand the ability to conduct discovery and hearings via video conferencing. Civ.R. 30 clarifies that a deponent can sign their transcript by hand or electronic signature. Under Civ.R. 39 and 43, a party may move the court to allow a bench trial or specific testimony in any hearing or trial by video conferencing. Even if the other side objects, the court can allow remote-presence testimony if there is good cause such as medical restrictions, military service, or “significant travel distance from the court” preventing physical appearance. In many probate cases, we have witnesses across the country (or the world!) and the ability to obtain their testimony without travel will increase efficiency in our cases. The discovery rules at Civ.R. 33 and 36 have also been updated to clarify the service of interrogatories and requests for admission by email or a Court’s filing system. The Rules are continuing their changes to keep up with the convenience of Zoom and paperless litigation.
2. Changes to Service of Process. The first step in every case is to tell the defendant there’s a lawsuit against them. Last year, the Rules expanded service to include a process to waive service and to charge the defendant with costs if they attempted to dodge service. This year, Civ.R. 4.1 includes a state-wide, uniform method for designating a neutral third party as a process server. Civ.R. 4.6 and the corresponding section of Civ.R. 73 now clarify the next steps to take if a summons sent by a commercial carrier (e.g., FedEx) is unclaimed. The sooner the defendant is served, the sooner we can move your probate litigation to resolution. 
3. Deposing a Business. Attorneys are very familiar with a “30B5 Deposition”: sending a notice to a company that you want to depose the person who has information about specific topics in the case, but you don’t know who that person is. The Rules now require the attorneys to confer before such a subpoena or notice to discuss the exact topics to be addressed in a deposition. This allows the entity to determine which of its employees has the key information and will (hopefully) reduce arguing over who the company will put forward. 
4. Sanctions for Not Conferring. A few years ago, the Rules implemented a requirement that the parties enter a discovery plan and provide initial disclosures about key witnesses and documents, even before the first status conference with the court. The Rules now expand the general sanctions related to discovery violations to a failure to provide initial disclosures or refusal to participate in a planning conference. An attorney who violates these Rules could not only cost their client the attorney fees to correct the mistake but also an adverse ruling on their case!

Many lawyers who practice in probate court focus on the administration of estates or the appointment of guardians. When it comes to probate litigation, those practitioners may not be aware of the ongoing updates to the Rules of Civil Procedure and Evidence. If you need a probate litigator, you can trust that Reminger’s attorneys are up-to-speed and ready to advocate for your rights.