The 2023 Ohio Rules of Civil Procedure Changes Just Took Effect. What Did You Miss?
posted by Neil E. Klingshirn | July 06, 2023 in Employment Law
Effective July 1, 2023, amendments to the Ohio Rules of Civil Procedure address the use of technology in discovery and at trial. Specifically, the amended rules provide for electronic service of discovery, remote testimony at depositions, taking remote testimony at trial, and the conduct of bench trials remotely. They also add a prior obligation to confer with opposing counsel on 30(B)(5) deposition topics and put teeth into this and the Rule 26(F) obligations to meet and prepare a discovery plan.
The Court Remains in Control
The changes allowing remote technology start on a defensive tone, with Rule 1 stating that the option to use remote technology “shall not be construed to limit the power of a court to order that a party, attorney, or witness physically appear at a proceeding without the use of live two-way video and audio technology.” The use of remote technology, though embraced by the Rules, remains at the discretion of the court.
Equating Remote and Physical
Rule 1.1 newly define “Appearance,” “Attendance” and “Personally” to include the “remote presence” of an individual as well as their physical presence, with some exceptions. Remote presence means “the presence of a person who is using live two-way video and audio technology.” (e.g., Zoom, Teams and Meet).
Service by “Electronic Media Platform” whenever “Feasible”
Rules 33 (Interrogatories) and Rule 36 (Requests for Admissions) removed the mandate “shall serve an electronic copy” of the discovery and replaced it with, “whenever feasible,” service shall be made “pursuant to Civ.R. 5(B)(2)(f) or (B)(3).”
Under Rule 5(B) a party can serve documents via a court’s facilities, if the court allows it. The party can also make service to a facsimile number, e-mail address or, if mutually agreed in writing, via any other electronic media platform, like cloud document storage and sharing services. Service by electronic media platform is complete upon transmission, unless the serving party learns that it did not reach the person served.
Service via “other media platforms” is optional, not required. Since the amendments struck the obligation to serve an electronic copy of the discovery, such as a Word document, a party can now serve discovery solely as pdf attachment to an email, or even as a fax, without also serving an editable electronic version, subject to showing that electronic service is not feasible.
If the party being served is unrepresented by counsel, however, the new rule requires the serving party to provide a paper copy to the unrepresented party. Presumably electronic service is allowed as well, but paper service is required.
Chipping away at Interrogatories
The updated rule retains the limit of forty interrogatories but now allows the court, for good cause shown, to reduce as well as extend the number of interrogatories a party may serve.
Remote Bench Trials
Rule 39, Trial, adds two new sections to (B), Bench Trials, which allow a court in its discretion to conduct trial using live two-way video and audio technology. Rule 39 directs the court to consider “the views of the parties, the anticipated probative value of the evidence, difficulty and expense of presenting witnesses by physical presence versus remote presence, convenience and efficiency for the parties to the case, and the nature and complexity of the issues to be tried.” However, Rule 37 gives each party the right to veto a remote bench trial, unless the party requesting the remote trial is restricted in their ability to physically appear.
Taking Remote Testimony
Rule 43, Taking Testimony, relaxes the standard for remote testimony by requiring only good cause, not good cause and “compelling circumstances.” Witnesses testifying remotely must be able to verify their identity when sworn, however, and every witness testifying remotely, whether within or outside of Ohio, must “affirm on the record that the witness has submitted to the jurisdiction of the Ohio court for the purpose of enforcement of his or her oath or affirmation, including any consideration of perjury charges arising from such testimony.”
Rule 37 puts teeth into the obligations to make disclosures and participate in discovery-related obligations. Specially, a new section 37(C)(2) authorizes the court to award attorney’s fees and order other sanctions for failing to:
- participate in a Rule 26 party planning conference,
- draft a Rule 26(F) discovery plan or
- confer on examination topics prior to a Rule 30(B)(5) deposition.
On the whole, the amendments reflect adaptations made by the civil justice system to the pandemic that remain useful for remote discovery and trial. The amendments create a new obligation to confer with opposing counsel before noticing a 30(B)(5) deposition of an organization, and expand the discovery failures expressly subject to sanctions.
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