Firm News

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.

Failure to Properly Respond Per Ohio Civil Rules May be Fatal to Your Subrogation Claim

In Ohio, court documents may arrive in several different forms. The court document or pleading most likely to be seen first would be a “Summons and Complaint” naming a plan or TPA (usually improperly named) as a defendant, which is very common in Ohio. In fact, some courts require the subrogated interest(s) such as a health plan or workers comp lien to be added as a party where not originally named. The document you receive may be an initial complaint alleging injury or an amended complaint by which the lien interest is being added to the already ongoing litigation. 

Under Ohio law, a defendant has only 28 days from the date the summons and complaint or amended complaint are first received in which to answer. The 28 days begins running as soon as the party or its agent (i.e., statutory agent, TPA, any office address, etc.) receives the suit papers. We all know this time can pass all too quickly during the press of ordinary business, while the court document is first associated with a particular member (or subscriber’s relative) and eventually makes its way to the appropriate handler for the first time.

A timely phone call to Ohio outside counsel, even with limited information, can help stave off the potentially bad consequences of a late response. It should be emphasized here that it is not sufficient at this point under either the Ohio civil rules or practical experience for the file handler to simply call or write the plaintiff’s attorney – the simple fact is that you need to get right with the court through counsel at the peril of your subrogated interest.