OHIO LEGAL ALERT - Ohio Civil Rule Amendments on Discovery and their Impact on Subrogation

The Ohio Supreme Court this summer modified its Rules of Civil Procedure as it relates to discovery practice. Ohio Civil Rule 26 was overhauled to more closely track the federal rule, with some special nuances, and requires more uniformity among the 88 counties and their courts.

Although many of the local rule requirements remain in effect, here are some changes now applicable state wide to all cases filed in Ohio:

Initial Disclosures and Discovery Plan. The new rules impose on the parties the affirmative duty to make “initial disclosures” quickly, no later than the first pretrial or case management conference. Unless privileged or protected from disclosure, the requirement is to disclose without a discovery request the following:

►The name and, if known, the address and telephone number 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.

►A copy 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.

►A computation of each category of damages claimed by the disclosing party.

►Insurance agreements which may satisfy all or part of a possible judgment.

The rule remains the same that those documents that are governed by attorney-client privilege, or work-product, would be exempt from the requirement, and a description of the documents must be provided in a privilege log. The new rule also requires that no later than 21 days before a scheduling conference the attorneys shall confer and develop a “joint discovery plan” to submit to the court no later than 14 days after the attorneys confer.

Expert Reports The new rules have significant changes as to expert reports. All experts in Ohio courts– either in support of the subrogation action or in defense – must now provide written expert reports in all cases. The reports have specific requirements for testifying experts.

The expert reports must include:

►A complete statement of all opinions and the basis and reasons for them as to each matter on which the expert will testify.

►An expert will not be permitted to testify or provide opinions on matters not disclosed in the report.  Any supplemental reports must be provided to an opposing party no later than 30 days before trial.

►The report is to be provided with a curriculum vitae of the expert; and

►State the compensation for the expert’s study or testimony.

The party with the burden of proof (on our assignments the subrogated party) must produce its report first. Drafts of reports and most communications between counsel and expert remain protected from disclosure.

Healthcare Records Exception. An exception to the expert report requirement is for healthcare providers which have provided treatment, often referred to as treating providers, with respect to which a party may rely on the “healthcare providers’ records.” Under the rule, “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.”

Proportionality Requirement. Another notable change is that the rules adopt a “proportionality” approach, whereby discovery requests may be challenged as being disproportional “to the needs of the case.”

Subrogation Impact The changes impact subrogation litigation as follows:

A subrogated insurer and its counsel should be ready and are required without a request to quickly provide a list of all witnesses, discoverable documents, including the insured’s policy and damage calculations in support of its claim.

Experts should be made aware of the requirements and ensure their investigations and subsequent reports comply with the requirements.

Ohio’s Civil Rule changes, while bringing some uniformity among the 88 counties, still allow leeway for judges and local rules to make additional requirements.

As always, RMI looks forward to assisting our insurance partners in navigating these changes on the road to subrogation recoveries. As to any questions or inquiries on Ohio subrogation law, requirements of our courts and relevant case law please do not hesitate to contact our firm.

September, 2020

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