Ohio Civ.R. 26

As amended through March 13, 2024

Rule 26 - General Provisions Governing Discovery

(A)Policy; discovery methods It is the policy of these rules (1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from taking undue advantage of an adversary's industry or efforts.

Parties may obtain discovery by one or more of the following methods: deposition upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, the frequency of use of these methods is not limited.

(B)Scope of discovery Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:

(1) In General Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Insurance agreements A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure subject to comment or admissible in evidence at trial.

(3) Initial Disclosure by a Party

(a) Without awaiting a discovery request, a party must provide to the other parties, except as exempted by Civ.R. 26(B)(3)(b) or as otherwise stipulated, or ordered by the court:

(i) The name and, if known, the address, telephone number, and e-mail address of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) A copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) A computation of each category of damages claimed by the disclosing party - who must also make available for inspection and copying as under Civ.R. 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) For inspection and copying as under Civ.R. 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(b) The following proceedings are exempt from initial disclosure:

(i) An action for review on an administrative record;

(ii) An action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(iii) An action to enforce or quash an administrative summons or subpoena;

(iv) A proceeding ancillary to a proceeding in another court; and

(v) An action to enforce an arbitration award.

(c) A party must make the initial disclosures no later than the parties' first pre-trial or case management conference, unless a different time is set by stipulation or court order, or unless a party objects. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(d) A party that is first served or otherwise joined after the first pre-trial or case management conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(e) A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(4) Trial preparation: materials Subject to the provisions of subdivision (B)(5) and (6) of this rule, a party may obtain discovery of documents, electronically stored information and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing of good cause therefor. A statement concerning the action or its subject matter previously given by the party seeking the statement may be obtained without showing good cause. A statement of a party is (a) a written statement signed or otherwise adopted or approved by the party, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement which was made by the party and contemporaneously recorded.

(5) Specific limitations on electronically stored information A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(B)(6). The court may specify conditions for the discovery.

(6) Limitations on Frequency and Extent

(a) When Permitted

By order, the court may limit the number of depositions, requests under Rule 36, and interrogatories or the length of depositions.

(b) When Required

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) The proposed discovery is outside the scope permitted by Rule 26(B)(1).

(c) In ordering production of electronically stored information, the court may specify the format, extent, timing, allocation of expenses and other conditions for the discovery of the electronically stored information.

(7) Disclosure of Expert Testimony

(a) A party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Ohio Rule of Evidence 702, 703, or 705.

(b) The reports of expert witnesses expected to be called by each party shall be exchanged with all other parties. The parties shall submit expert reports and curricula vitae in accordance with the time schedule established by the Court. The party with the burden of proof as to a particular issue shall be required to first submit expert reports as to that issue. Thereafter, the responding party shall submit opposing expert reports within the schedule established by the Court.

(c) Other than under subsection (d), a party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. The report of an expert must disclose a complete statement of all opinions and the basis and reasons for them as to each matter on which the expert will testify. It must also state the compensation for the expert's study or testimony. Unless good cause is shown, all reports and, if applicable, supplemental reports must be supplied no later than thirty (30) days prior to trial. An expert will not be permitted to testify or provide opinions on matters not disclosed in his or her report.

(d) Healthcare Providers. A witness who has provided medical, dental, optometric, chiropractic, or mental health care may testify as an expert and offer opinions as to matters addressed in the healthcare provider's records. Healthcare providers' records relevant to the case shall be provided to opposing counsel in lieu of an expert report in accordance with the time schedule established by the Court.

(e) A party may take a discovery deposition of their opponent's expert witness only after the mutual exchange of reports has occurred unless the expert is a healthcare provider permitted to testify as an expert under subsection (d). Upon good cause shown, additional time after submission of both sides' expert reports will be provided for these discovery depositions if requested by a party. If a party chooses not to hire an expert in opposition to an issue, that party will be permitted to take the discovery deposition of the proponent's expert.

(f) Drafts of any report provided by any expert, regardless of the form in which the draft is recorded, are protected by division (B)(4) of this rule.

(g) Communications between a party's attorney and any witness identified as an expert witness under division (B)(7) of this rule regardless of the form of the communications, are protected by division (B)(4) of this rule except to the extent that the communications:

(i) Relate to compensation for the expert's study or testimony;

(ii) Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

(h) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) As provided in Civ.R. 35(B); or

(ii) On showing exceptional circumstances under which, it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(iii) The party seeking discovery under division (B)(7) of this rule shall pay the expert a reasonable fee for time spent in deposition.

(8) Claims of privilege or protection of trial-preparation materials

(a) Information withheld

When information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(b) Information produced

If information is produced in discovery that is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a receiving party must promptly return, sequester, or destroy the specified information and any copies within the party's possession, custody or control. A party may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim of privilege or of protection as trial preparation material. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

(C)Protective orders

Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) That the discovery not be had;

(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place or the allocation of expenses;

(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) That certain matters not be inquired into or that the scope of the discovery be limited to certain matters;

(5) That discovery be conducted with no one present except persons designated by the court;

(6) That a deposition after being sealed be opened only by order of the court;

(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court, on terms and conditions as are just, may order that any party or person provide or permit discovery. The provisions of Civ.R. 37(A)(5) apply to the award of expenses incurred in relation to the motion.

Before any person moves for a protective order under this rule, that person shall make a reasonable effort to resolve the matter through discussion with the attorney or unrepresented party seeking discovery. A motion for a protective order shall be accompanied by a statement reciting the effort made to resolve the matter in accordance with this paragraph.

(D)Sequence and timing of discovery

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

(E)Supplementation of responses

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (a) the identity and location of person having knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness as trial and the subject matter on which he is expected to testify.

(2) A party who knows or later learns that his response is incorrect is under a duty seasonably to correct the response.

(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through requests for supplementation of prior responses.

(F)Conference of the parties; planning for discovery.

(1) Conference timing. Other than in cases excepted under Civ.R. 1(C), when the court orders otherwise in a specific case, or in categories of cases excepted by local rule in which little or no pretrial discovery is anticipated, the attorneys and unrepresented parties shall confer as soon as practicable, and in any event no later than twenty-one days before a scheduling conference is to be held.

(2) Conference content; parties' responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Civ.R. 26(B)(3); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for filing with the court within fourteen days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

(3) Discovery plan

A discovery plan shall state the parties' views and proposals on:

(a) What changes should be made in the timing, form, or requirement for disclosures under Civ.R. 26(B), including a statement of when initial disclosures were made or will be made;

(b) Agreed-upon deadlines for discovery and other items that may be included in a case schedule to be issued under Civ.R. 16, any proposed modifications to a schedule already issued under Civ.R. 16, and compliance with Sup. R 39 and 42.

(c) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(d) Any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(e) Disclosure and the exchange of documents obtained through public records requests;

(f) Any issues about claims of privilege or of protection as trialpreparation materials;

(g) What changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed;

(h) Any other orders that the court should issue under Civ.R. 26(C) or under Civ.R. 16(B) and (C); and any modifications required or to be requested under any scheduling order issued under Civ.R. 16.

Ohio. Civ.R. 26

Effective:7/1/1970; amended effective 7/1/1994; amended effective 7/1/2008;7/1/2012; amended effective 7/1/2020; amended effective 7/1/2021; amended effective 7/1/2022; amended effective 7/1/2023.

Staff Note (July 1, 2008 Amendment)

Several provisions of the rule are amended to clarify that discovery of electronically stored information is permitted.

Civ.R. 26(A), (B)(1) and (B)(3) include explicit references to discovery of electronically stored information, a type of discovery that was arguably covered in the broad definition of discoverable materials previously articulated in the rule.

Civ.R. 26(B)(4) is new language that tempers the virtually unlimited discovery traditionally authorized by Rule 26(B)(1) by providing that, as is the case with all discovery, a party is not required to produce electronically stored information if production is too burdensome or expensive compared to the potential value of the discovery. These provisions also provide guidance to trial courts for resolving disputes over claims of excessive burdensomeness and expense. The last sentence of this section reiterates the power that trial judges inherently possess to regulate discovery of electronically stored information, including allocating costs and other details related to production of electronically stored information.

Existing Rule 26(B)(4) is renumbered as 26(B)(5) but no other changes are made.

Civ.R. 26(B)(6)(a) and (b) apply to all discovery not just electronically stored information. Rule 26(B)(6)(a) establishes procedures parties must follow when withholding documents (including electronically stored information) based on privilege.

Civ.R. 26(B)(6)(b) provides a mechanism for a party to retrieve inadvertently produced documents from an opponent. This is often called a "clawback" provision. A similar provision is included in the federal rules and the rules of other states that have modified their civil rules to accommodate e-discovery. It applies to all materials produced by a party, not just electronically stored information.

The rule directs a party that has inadvertently provided privileged documents to an opponent to notify the opponent. Once notification is received, the recipient must "return, sequester, or destroy" the inadvertently proceeded information and not use the information in any way. A procedure is also provided for the court to resolve the claim of privilege relating to the materials. The amendments to Rule 26(B)(6)(b) do not conflict with the new Ohio Rule Prof. Conduct 4.4(b) requirement that an attorney who "knows or reasonably should know that the document was inadvertently sent" must "promptly notify the sender." Rather, the two rules work in concert: Rule 26(B)(6)(b) is triggered when actual notification is received from the sender that the material was inadvertently sent, and Ohio Rule Prof. Conduct 4.4(b) is animated when the recipient realizes that the material provided by an opponent is likely privileged.

Staff Note (July 1, 2012 Amendment)

Civ.R. 26(B)(5) is amended to clarify the scope of expert discovery and align Ohio practice with the 2010 amendments to the Federal Rules of Civil Procedure relating to a party's ability to obtain discovery from expert witnesses who are expected to be called at trial. The amendment provides work product protection for draft reports and communications between attorneys and testifying experts, except for three categories of communications: communications that relate to compensation for the expert's study or testimony; communications containing facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; and communications containing any assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.

Staff Note (July 1, 2020 Amendment)

Civ.R. 26 has been amended to bring the Ohio rule closer to the federal rule in many respects.

Rule 26(B)(1)

Civ.R. 26(B)(1) incorporates nearly identical language as the federal rule in Fed. R. Civ. P. 26(b)(1), as amended in 2015. Civ.R. 26(B)(1) now includes language bearing on proportionality, which contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. The scope of available information, including the increase and pervasiveness of electronically stored information, has greatly increased both the potential cost of wide- ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. The present amendment reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.

This change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.

The parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party. Many of these uncertainties should be addressed and reduced in the parties' Civ.R. 26(F) conference and in scheduling and pretrial conferences with the court. But if the parties continue to disagree, the discovery dispute could be brought before the court. A party claiming undue burden or expense ordinarily has far better information - perhaps the only information - with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.

With regard to the parties' relative access to relevant information, some cases involve what often is called "information asymmetry." One party - often an individual plaintiff - may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.

The former provision for discovery of relevant but inadmissible information that appears "reasonably calculated to lead to the discovery of admissible evidence" is also deleted. It is replaced by the direct statement that "Information within this scope of discovery need not be admissible in evidence to be discoverable." Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.

Rule 26(B)(3)

This provision has been added to include a requirement that parties, in most cases, exchange initial disclosures without awaiting discovery requests. The language of Civ.R. 26(B)(3) closely follows the federal rule. The purpose of the initial disclosure obligation is to accelerate the exchange of information about the case, consistent with Civ.R. 1 and 26(B)(1).

Rule 26(B)(5)

This subsection is revised to preserve the limitation on production of electronically stored information ("ESI") if it is from a source not reasonably accessible due to undue burden or cost. The court may still order production upon a showing of good cause. The amended rule eliminates the prior factors to be considered when determining if good cause exists and relies instead on the general concepts of proportionality contained in Rule 26.

Rule 26(B)(6)

Civ.R. 26(B)(6) has been added to clarify that courts have authority to modify the frequency and extent of discovery, including consideration that bear on proportionality to Civ.R. 26(B)(1). This language in Civ.R. 26(B)(6) is similar to the language in Fed. R. Civ. P. 26(b)(2)(A) and (C).

Rule 26(B)(7)

The Ohio Civil Rules had not previously required experts to provide a written report. The Local Rules of some counties required a written report while many others did not. Interrogatories directed to the subject matter on which an expert may testify have in practice shown to be an insufficient means to ascertain an opposing expert's opinions and the grounds upon which they are based. The absence of a written report frequently puts counsel in the position of having to bear the substantial time and expense of a deposition in order to learn the opinions of an opposing party's expert. Requiring a written report from experts setting forth all opinions and the basis and reasons for such opinions may, in many cases, obviate the need for a deposition, and will lessen the time and significant expense associated with expert discovery. So will permitting the deposition of experts only after the mutual exchange of expert reports. Further expense can be lessened by permitting healthcare providers to testify as an expert as to matters addressed in medical records, without the necessity of writing a separate medical report, if such records are timely provided to opposing counsel. Subsection (B)(7)(h) is the same as Fed. R. Civ. P. 26(b)(4)(D) and protects facts and opinions held by an expert who is not expected to be called as a witness at trial.

Rule 26(F)

The changes in the proposed rules are best highlighted and understood in contrast to the Federal Rules. The differences between proposed Ohio's Civ.R. 26(F) and Fed. Civ.R. 26(F) are as follows:

1. Civ.R. 26(F)(1) - The Ohio Rule reads, "Except those matters excepted under Civ.R. 1(C)[.][.]" The Federal Rule reads, "Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) [.][.]"

2. Civ.R. 26(F)(1) - The Ohio Rule states that "attorneys and unrepresented parties shall confer as soon as practicable[.][.]" The Federal Rule states that "the parties must confer as soon as practicable[.][.]"

3. Civ.R. 26(F)(1) - The Ohio Rule reads, at the end, "21 days before a scheduling conference is to be held." The intent with this language of the proposed Ohio Rule is to simplify the setting of the scheduling conference and to give the court greater flexibility in setting that conference. The Federal Rule reads, at the end, "21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b)."

4. Civ.R. 26(F)(2) - The Ohio Rule reads, at the end of the second to last sentence, "and for filing with the court[.][.]" The Federal Rule reads, at the end of the second of the second to last sentence, "and for submitting with the court[.][.]"

5. Civ.R. 26(F)(3) - The Ohio Rule uses the word "shall" and the Federal Rule uses the word "must."

6. Civ.R. 26(F)(3)(e) - The Ohio Rule addresses public records disclosure as part of the discovery plan whereas the Federal Rule does not.

7. Civ.R. 26(F)(3)(f) - The Ohio Rule ends with "of protection as trial-preparation materials[.][.]" The Federal Rule (Fed. Civ.R. 26(F)(3)(D)) ends with "as trial-preparation materials, including - if the parties agree on a procedure to assert these claims after production - whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502 [.][.]"

8. Civ.R. 26(F)(3)(b) and (i) - these subsections are not included in Fed. Civ.R. 26(F)(3).

9. Civ.R. 26(F)(4) - This subsection was removed from the proposed Ohio Rules, but it is included in the Federal Rules.

10. This amendment introduces to Ohio's civil rules the concept of an early, mandatory conference among the attorneys and any unrepresented party, and requires the filing of a written report outlining the results of that conference. This amendment also requires that the discovery plan, to which counsel and the parties agree, be in compliance with the time limitations of Sup.R. 39 and 42.

Staff Note (July 1, 2023 Amendment)

Civ.R. 26(B)(8) requires assertions of privilege or trial-preparation protection be made clearly, so that the party seeking discovery understands the basis for withholding material and, if appropriate, may contest the claim. Often this entails preparation of a privilege log, but that may prove burdensome and expensive. Proportionality as set out in Civ.R. 26(B)(1) applies to all scope of discovery issues including the format used to assert privilege or work-product protection in a log or by other appropriate means.