Each year, Ohio’s Commission on the Rules of Practice & Procedure proposes amendments to the Rules of Procedure and Evidence affecting all courts in Ohio. In most counties, the probate court is a separate “division” with a dedicated judge. However, the complex and mandatory rules of civil procedure apply in probate court just like all other cases. The new Rules, effective July 1, 2020, will change how cases are initiated and proceed through discovery.
Ohio now offers a “waiver of service” option for all civil actions, similar to federal cases. Civ.R. 4.7. At the start of a case, a plaintiff may provide the defendant a waiver of service, which removes the requirement that the clerk of court issue formal service. If the defendant refuses to sign the waiver, they can be responsible for the costs incurred to serve them. A lawyer must carefully follow the Rule in order to obtain the “cost-shifting” benefit for their client. If the defendant does sign the waiver, they have a full 60 days to answer the complaint (90 days for international defendants), rather than the usual 28-day response time. The waiver does not give up any rights to challenge jurisdiction or venue. This new Rule may be especially helpful in saving service-related costs (and time!) in estate and trust litigation, where the parties are often spread nationwide or even internationally.
The new Rules are more in line with the federal rules to encourage early, open discovery between the parties. First, all lawyers (and unrepresented parties) are required to “confer” early in the case to set a proposed schedule for discovery and to address any foreseen discovery disputes. Civ.R. 26(F). The parties must file their proposed schedule with the court. The court can adopt that schedule or make changes to it, but the courts are now required to set a discovery schedule. Civ.R. 16(B).
The Rules also require the parties to make proactive initial disclosures of key information early in the case. Civ.R. 26(B)(3). Under the old rules, no party was required to “speak up” about the identity of key witnesses or documents unless another party asked a specific discovery question or the local court rules required it. Under the new Rules, each party is required to disclose the identity of witnesses and copies of documents that support their claims or defenses, a calculation of their damages, and a copy of insurance policies that may apply. Civ.R. 26(B)(3). These disclosures must occur prior to the first pre-trial conference, unless the parties or court agree to a later time for disclosure.
While the new discovery rules may speed up the exchange of information, the new “scope” of discovery leaves room for interpretation. Prior to these changes, a party could seek discovery on broad topics “reasonably calculated” to lead to admissible evidence. The new Rule limits discovery to non-privileged and relevant matters “proportional to the needs of the case” and gives several factors to consider, including: a) the value of the case; b) the resources of the parties; and, c) whether the burden of the discovery outweighs its likely benefit. Civ.R. 26(B)(1). There could be a few years of extra discovery disputes while Ohio lawyers get used to the new “proportionality” rule.
All Rule changes apply to cases filed on or after July 1, 2020, and to current cases to the extent practicable.
Note: This post is only a brief summary of some of the 2020 changes in the Ohio Rules of Civil Procedure – and it is no substitute for a thorough reading of the Rules and the local rules in each court in which you practice.
If you have a probate or trust dispute, you will need a lawyer well-versed in the court’s rules and the complex law governing these issues. Contact Reminger’s Estates, Trusts & Probate Litigation department to discuss your matter with our experienced litigators.
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