EDRM work product is not legal advice and does not reflect the opinions or positions of the Advisory Council, Project Trustees or Individual Contributors.
Douglas Matthews, partner, Vorys, Sater, Seymour and Pease LLC
Ohio Rules of Civil Procedure – https://supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf
Specific Rules with ESI Content:
RULE 1. Scope of Rules: Applicability; Construction; Exceptions
RULE 16. Pretrial Procedure
RULE 26. General Provisions Governing Discovery
RULE 33. Interrogatories to Parties
RULE 34. Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.
RULE 45. Subpoena
Cuyahoga County Local Rule 21.3 – Discovery of Electronically Stored Information
Article regarding 2020 Amendments to the Ohio Civil Rules – https://www.ohiobar.org/member-tools-benefits/practice-resources/practice-library-search/practice-library/2020-ohio-civil-rules-amendments/
In most respects the Ohio Rules of Civil Procedure regarding ESI are substantially similar to the corresponding Federal Rules of Civil Procedure. Differences include:
- Unlike Federal Rule 16, Ohio Rule 16 does not contain separate sanction provisions with regard to scheduling conferences or orders.
- Federal Rule 16(b)(3)(iv) provides that a scheduling order may include agreements regarding post-production privilege claims and specifically references agreements under Federal Rule of Evidence 502. Ohio Rule 16(C(2)(k) authorizes the Court to address agreements regarding post-production privilege claims, but there is no Ohio Rule of Evidence similar to Federal Rule of Evidence 502.
- Federal Rule 26(f)(3)(D) likewise provides that a discovery plan may include agreements regarding post-production privilege claims and specifically references agreements under Federal Rule of Evidence 502. Ohio Rules 26(F)3)(f) states that a discovery plan may address any issues about claims of privilege, but does not specifically address agreements regarding post-production privilege claims.
- Unlike Federal Rule 34, Ohio Rule 34(B) requires that the requesting party serve an electronic copy of a document request in editable format.
- Ohio Rule 34(B)(1) provides that a response to the document request is due within 28 days, while under Federal Rule 34(b)(2) the response is due within 30 days.
- Ohio Rule 34 has not been amended to be consistent with the 2015 amendments to Federal Rule 34. Thus, the Ohio Rule response deadline is based solely on the service date, while the Federal Rule provides that, if the request was served before the parties’ Rule 26(f) conference, the response time is calculated from the date of that conference. Also, unlike the current Federal Rule, the Ohio Rule does not contain explicit requirements that objections be stated with specificity or state whether any responsive materials are being withheld on the basis of that objection.
- Ohio Rule 37(E) has not been amended to be consistent with the 2015 amendments to Federal Rule (37(e). Thus, the Ohio permits sanctions for failure to “provide” ESI in certain circumstances, while the current Federal Rule addresses failure to “preserve” ESI. Under the 2015 amendments to the Federal Rule, the court can order curative measures for a failure to preserve only if the party failed to take reasonable steps to preserve ESI for which it had a duty to preserve, the ESI cannot be restored or replaced through additional discovery, and the court finds that another party suffered prejudice from loss of the information. The current Federal Rule also limits the imposition of certain severe sanctions unless the party acted with the intent to deprive another party of the information’s use in the litigation. The Ohio Rule does not contain such explicit limits, but instead provides that the court may consider the following factors when determining whether to impose sanctions: (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division
Federal Rules of Civil Procedure:
Cornell Legal Information Institute FRCP:
Ediscovery APP: https://e-discoveryapp.com/promo/E-Discovery