I recently issued a decision on whether a party who dismisses after a settlement can recover court costs under the Ohio Rules of Civil Procedure. I concluded that since only a "prevailing" party can recover court costs and since there is no such party when there is a settlement followed by a voluntary dismissal, the party dismissing the case can not recover its costs. Excerpts from my decision appear below:
This matter is before the Court on Plaintiff's Motion to Dismiss and Assessment of Court Costs. Upon due consideration, the Court finds that said motion is not well taken, in part.
This is a foreclosure action in which Plaintiff seeks to dismiss its Complaint and assess the costs of the action against the Defendant homeowners. Plaintiff contends that the Court has the power to assess the costs against the Defendants pursuant to Ohio Civil Rule 54 (D). Civ. R. 54 (D) states “except when express provision therefore is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs.”
In Ohio Civil Rights Commission v. GMS Management Co., Inc., 2000 Ohio App. LEXIS 2827 (2000), The Ninth District Court of Appeals held “ a dismissal pursuant to Civ. R. 41(A) does not adjudicate the merits of the claim and does not produce a prevailing party.” The Court held that a voluntary dismissal returns the parties to the position they were in prior to the filing of the case.
This Court finds that in an action where Plaintiff voluntarily dismisses its case, and has not so dismissed once before, there is no prevailing party. Therefore, the provision is Civ. R. 54(D) does not apply to this action.
Medina County Court of Common Pleas, Rules of the General Division, Rule 10 (D) states “Upon voluntary dismissal of any action or claim, court costs associated with that claim shall be assessed to the dismissing parties unless otherwise ordered by the Court.”
This Court finds that assessing the costs against the Defendant homeowners would not return them to the position they were in prior to the commencement of the action. Therefore, the Court finds that there is not a compelling reason to alter the general rule that the party that dismisses a case is responsible for the costs of that action.
Showing posts with label Ohio Rules of Civil Procedure. Show all posts
Showing posts with label Ohio Rules of Civil Procedure. Show all posts
Tuesday, May 24, 2011
Wednesday, July 14, 2010
Expert Affidavit That Contradicts Prior Deposition Does Not Create Factual Issue to Prevent Summary Judgment
Unless Expert Sufficiently Explains Reason for the Contradiction
Pettiford v. Aggarwal, Slip Opinion No. 2010-Ohio-3237.
Montgomery App. No. 22736, 2009-Ohio-3642. Judgment of the court of appeals reversed, and cause remanded to the trial court for further proceedings.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., concurs in part and dissents in part.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3237.pdf
(July 14, 2010) The Supreme Court of Ohio ruled today that when the affidavit of a retained nonparty expert is submitted in opposition to a pending motion for summary judgment, and statements in the affidavit contradict testimony given by the same expert during a prior deposition, the affidavit does not create a “genuine issue of material fact” that prevents summary judgment unless the expert sufficiently explains the reason for the contradiction.
Applying that holding to a Montgomery County medical malpractice case, the Court reversed a decision of the 2nd District Court of Appeals and remanded the case to the trial court for further proceedings. The Court’s 5-2 majority decision was written by Justice Maureen O’Connor.
The case involved a suit filed by Barbara Pettiford of Dayton against Dr. Rajendra Aggarwal. Pettiford alleged that in analyzing a chest x-ray taken in 1999, Dr. Aggarwal negligently failed to detect a benign tumor in her lung.
Pettiford identified Dr. Trent Sickles as an expert witness to provide testimony in support of her claim. In responding to questions posed by Dr. Aggarwal’s attorneys during a pretrial deposition, Dr. Sickles indicated that he did not have an opinion regarding whether Dr. Aggarwal’s acts or omissions had resulted in Pettiford’s injuries, and did not plan to testify with regard to the issue of causation. Dr. Aggarwal subsequently filed a motion for summary judgment to dismiss Pettiford’s complaint, arguing that because she had not provided expert testimony attesting that her injuries were the result of the doctor’s acts or omissions, Pettiford had not met the requirements for her malpractice claim to proceed to trial.
In opposition to the summary judgment motion, Pettiford submitted an affidavit signed by Dr. Sickles stating that in his opinion Dr. Aggarwal’s failure to detect the tumor in 1999 was responsible for subsequent medical treatment that Pettiford received. Dr. Aggarwal filed a motion to strike the affidavit, citing a 2006 Supreme Court of Ohio decision, Byrd v. Smith, which held that an affidavit submitted by a party opposing summary judgment that contradicted the same person’s earlier deposition testimony, without a sufficient explanation for the contradiction, did not prevent an award of summary judgment. Without ruling on the motion to strike or stating the legal rationale for its decision, the trial court granted summary judgment in favor of Dr. Aggarwal.
Pettiford appealed. On review, the 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. In a divided opinion, the court of appeals held that the Supreme Court’s Byrd decision was not applicable because Byrd addressed only contradictory affidavits submitted by self-interested parties in a case, whereas the source of the disputed affidavit in this case was a third-party expert witness. The Supreme Court agreed to review the 2nd District’s decision and determine whether the legal reasoning of its Byrd decision also applies in cases where an affidavit submitted by a retained expert witness in opposition to a summary judgment motion contradicts testimony by that same expert in a prior deposition.
Writing for the majority, Justice O’Connor noted that a retained expert witness in a civil action has a close working relationship with the party on whose behalf he or she offers testimony, and also with that party’s attorney. Because of this and other parallels between a party and a retained expert witness, the majority determined that the rationale supporting the Byrd rule is germane in the case of a contradictory affidavit of a retained expert witness. Justice O’Connor wrote: “The retained expert witness is engaged to review the facts and offer opinion testimony on the essential, material elements of the claim at issue. In essence, the expert is an extended voice of the party and the proponent of the party’s claims. ... Unlike an attorney’s limited contact with a fact witness or a treating physician, an attorney’s direction of a retained, nonparty expert is significant, akin to the attorney’s direction of a party. The attorney directs the expert as to the subject matter upon which an opinion is needed, helps to determine what evidence the expert reviews, and works closely with the expert throughout the litigation to prove or defend against the causes of action.”
“ ... While the attorney technically does not represent the expert during the expert’s deposition, the attorney customarily prepares the expert for the deposition and supports the expert during the deposition just as he or she would with a party. And the attorney often acts during an expert’s deposition as he or she would act during a party’s deposition, objecting to opposing counsel’s questioning and rehabilitating the expert if necessary. If the attorney is dissatisfied with the expert’s deposition testimony or believes that a misstatement has been made, the attorney has the ability to clarify the deposition on the record. ... The numerous parallels between the degree of control an attorney has over a party and over a retained, nonparty expert lead us to the conclusion that Byrd’sruling should apply to contradictory affidavits of retained, nonparty experts to prevent the use of a self-serving affidavit to defeat summary judgment. If a retained, nonparty expert is permitted to defeat summary judgment at the eleventh hour by changing his or her opinions without a sufficient explanation, summary judgment will be rendered meaningless.”
“We hold that an affidavit of a retained, nonparty expert contradicting the former deposition testimony of that expert and submitted in opposition to a pending motion for summary judgment does not create a genuine issue of material fact to prevent summary judgment unless the expert sufficiently explains the reason for the contradiction.”
Applying that holding to the disputed affidavit in this case, Justice O’Connor wrote: “The determination of whether Dr. Sickles’ affidavit contradicted his deposition without a sufficient explanation for the alleged contradiction is a factual determination that is properly made by the trier of fact. The trial court did not expound on its reasoning for granting Dr. Aggarwal’s motion for summary judgment and never ruled on the motion to strike Dr. Sickles’ affidavit, and the appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd’sapplicability, the appropriate course is to remand this matter to the trial court to apply the analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in that analysis.
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Eric Brown entered a separate opinion in which he agreed with the majority’s remand of the case to the trial court for further proceedings, but dissented from its expansion of the Byrd decision to cases involving retained experts. He wrote: “From the record, it is clear that the nature of Dr. Sickles’s affidavit and deposition testimony has not been addressed explicitly by the lower courts. I agree with the majority that the determination of whether a contradiction exists should be made by the trial court. Therefore, I would remand this matter to the trial court for a determination of whether a contradiction exists. I find that no discussion of whether to extend the holding of Byrd to retained, nonparty experts is warranted until there has been a clear determination that the affidavit contradicts, not merely supplements, the deposition testimony.”
Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the ruling of the court of appeals.
Contacts
Lawrence J. White, 937.294.5800, for Barbara Pettiford.
Kevin W. Popham, 614.485.1800, for Dr. Rajendra K. Aggarwal.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Pettiford v. Aggarwal, Slip Opinion No. 2010-Ohio-3237.
Montgomery App. No. 22736, 2009-Ohio-3642. Judgment of the court of appeals reversed, and cause remanded to the trial court for further proceedings.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., concurs in part and dissents in part.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3237.pdf
(July 14, 2010) The Supreme Court of Ohio ruled today that when the affidavit of a retained nonparty expert is submitted in opposition to a pending motion for summary judgment, and statements in the affidavit contradict testimony given by the same expert during a prior deposition, the affidavit does not create a “genuine issue of material fact” that prevents summary judgment unless the expert sufficiently explains the reason for the contradiction.
Applying that holding to a Montgomery County medical malpractice case, the Court reversed a decision of the 2nd District Court of Appeals and remanded the case to the trial court for further proceedings. The Court’s 5-2 majority decision was written by Justice Maureen O’Connor.
The case involved a suit filed by Barbara Pettiford of Dayton against Dr. Rajendra Aggarwal. Pettiford alleged that in analyzing a chest x-ray taken in 1999, Dr. Aggarwal negligently failed to detect a benign tumor in her lung.
Pettiford identified Dr. Trent Sickles as an expert witness to provide testimony in support of her claim. In responding to questions posed by Dr. Aggarwal’s attorneys during a pretrial deposition, Dr. Sickles indicated that he did not have an opinion regarding whether Dr. Aggarwal’s acts or omissions had resulted in Pettiford’s injuries, and did not plan to testify with regard to the issue of causation. Dr. Aggarwal subsequently filed a motion for summary judgment to dismiss Pettiford’s complaint, arguing that because she had not provided expert testimony attesting that her injuries were the result of the doctor’s acts or omissions, Pettiford had not met the requirements for her malpractice claim to proceed to trial.
In opposition to the summary judgment motion, Pettiford submitted an affidavit signed by Dr. Sickles stating that in his opinion Dr. Aggarwal’s failure to detect the tumor in 1999 was responsible for subsequent medical treatment that Pettiford received. Dr. Aggarwal filed a motion to strike the affidavit, citing a 2006 Supreme Court of Ohio decision, Byrd v. Smith, which held that an affidavit submitted by a party opposing summary judgment that contradicted the same person’s earlier deposition testimony, without a sufficient explanation for the contradiction, did not prevent an award of summary judgment. Without ruling on the motion to strike or stating the legal rationale for its decision, the trial court granted summary judgment in favor of Dr. Aggarwal.
Pettiford appealed. On review, the 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. In a divided opinion, the court of appeals held that the Supreme Court’s Byrd decision was not applicable because Byrd addressed only contradictory affidavits submitted by self-interested parties in a case, whereas the source of the disputed affidavit in this case was a third-party expert witness. The Supreme Court agreed to review the 2nd District’s decision and determine whether the legal reasoning of its Byrd decision also applies in cases where an affidavit submitted by a retained expert witness in opposition to a summary judgment motion contradicts testimony by that same expert in a prior deposition.
Writing for the majority, Justice O’Connor noted that a retained expert witness in a civil action has a close working relationship with the party on whose behalf he or she offers testimony, and also with that party’s attorney. Because of this and other parallels between a party and a retained expert witness, the majority determined that the rationale supporting the Byrd rule is germane in the case of a contradictory affidavit of a retained expert witness. Justice O’Connor wrote: “The retained expert witness is engaged to review the facts and offer opinion testimony on the essential, material elements of the claim at issue. In essence, the expert is an extended voice of the party and the proponent of the party’s claims. ... Unlike an attorney’s limited contact with a fact witness or a treating physician, an attorney’s direction of a retained, nonparty expert is significant, akin to the attorney’s direction of a party. The attorney directs the expert as to the subject matter upon which an opinion is needed, helps to determine what evidence the expert reviews, and works closely with the expert throughout the litigation to prove or defend against the causes of action.”
“ ... While the attorney technically does not represent the expert during the expert’s deposition, the attorney customarily prepares the expert for the deposition and supports the expert during the deposition just as he or she would with a party. And the attorney often acts during an expert’s deposition as he or she would act during a party’s deposition, objecting to opposing counsel’s questioning and rehabilitating the expert if necessary. If the attorney is dissatisfied with the expert’s deposition testimony or believes that a misstatement has been made, the attorney has the ability to clarify the deposition on the record. ... The numerous parallels between the degree of control an attorney has over a party and over a retained, nonparty expert lead us to the conclusion that Byrd’sruling should apply to contradictory affidavits of retained, nonparty experts to prevent the use of a self-serving affidavit to defeat summary judgment. If a retained, nonparty expert is permitted to defeat summary judgment at the eleventh hour by changing his or her opinions without a sufficient explanation, summary judgment will be rendered meaningless.”
“We hold that an affidavit of a retained, nonparty expert contradicting the former deposition testimony of that expert and submitted in opposition to a pending motion for summary judgment does not create a genuine issue of material fact to prevent summary judgment unless the expert sufficiently explains the reason for the contradiction.”
Applying that holding to the disputed affidavit in this case, Justice O’Connor wrote: “The determination of whether Dr. Sickles’ affidavit contradicted his deposition without a sufficient explanation for the alleged contradiction is a factual determination that is properly made by the trier of fact. The trial court did not expound on its reasoning for granting Dr. Aggarwal’s motion for summary judgment and never ruled on the motion to strike Dr. Sickles’ affidavit, and the appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd’sapplicability, the appropriate course is to remand this matter to the trial court to apply the analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in that analysis.
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Eric Brown entered a separate opinion in which he agreed with the majority’s remand of the case to the trial court for further proceedings, but dissented from its expansion of the Byrd decision to cases involving retained experts. He wrote: “From the record, it is clear that the nature of Dr. Sickles’s affidavit and deposition testimony has not been addressed explicitly by the lower courts. I agree with the majority that the determination of whether a contradiction exists should be made by the trial court. Therefore, I would remand this matter to the trial court for a determination of whether a contradiction exists. I find that no discussion of whether to extend the holding of Byrd to retained, nonparty experts is warranted until there has been a clear determination that the affidavit contradicts, not merely supplements, the deposition testimony.”
Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the ruling of the court of appeals.
Contacts
Lawrence J. White, 937.294.5800, for Barbara Pettiford.
Kevin W. Popham, 614.485.1800, for Dr. Rajendra K. Aggarwal.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuesday, May 25, 2010
Civil Rule Prohibits Using Placeholder Names When Defendant is Known in Case
2009-0580. Erwin v. Bryan, Slip Opinion No. 2010-Ohio-2202.
Tuscarawas App. No. 08-CA-28, 2009-Ohio-758. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Grendell, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Diane V. Grendell, J., of the Eleventh Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2202.pdf
(May 25, 2010) The Supreme Court of Ohio today ruled that the rules of civil procedure do not allow a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed.
The case centered on a wrongful death lawsuit filed by Cora Erwin, whose husband, Russell, died July 15, 2004, several days after his release from the hospital.
On July 10, 2006, within the two-year statute of limitations (time limit) after Mr. Erwin’s death, Mrs. Erwin filed a wrongful death lawsuit naming as defendants Dr. Bryan, Union Hospital, and five unnamed “John Doe” defendants described in the complaint as other physicians unknown to Mrs. Erwin at the time of filing whose acts or omissions may have contributed to Mr. Erwin’s death. On July 15, 2006, the statute of limitations for filing a wrongful death claim arising from Mr. Erwin’s death expired.
On June 29, 2007, after her attorneys had deposed Dr. Bryan, Mrs. Erwin sought leave to amend her complaint to substitute the name of Dr. William Swoger, a physician who had been involved in the intubation of her husband during his hospitalization, for one of the “John Doe” defendants. The trial judge granted leave to amend the complaint, and Dr. Swoger and his medical practice, Union Internal Medical Specialties Inc. (UIMS), were served with copies of the amended complaint naming them as defendants. Dr. Swoger and UIMS subsequently filed a motion for summary judgment dismissing them as defendants on the basis that Mrs. Erwin had not asserted claims against them until after the July 15, 2006 statute of limitations had expired. The trial court granted summary judgment in favor of Dr. Swoger and UIMS based on the statute of limitations.
Mrs. Erwin appealed the trial court’s grant of summary judgment, arguing that because she had included then-unknown John Doe physicians as defendants in her original and timely complaint, Civil Rule 15(D) allowed her to amend that complaint within one year after the original filing date by substituting the name of an actual defendant for a John Doe defendant. The 5th District Court of Appeals reversed the trial court’s grant of summary judgment and reinstated Mrs. Erwin’s claims against Dr. Swoger and UIMS. The Supreme Court agreed to review the 5th District’s decision.
The majority opinion authored by Justice Terrence O’Donnell stated: “According to its unambiguous language, Civ.R. 15(D) provides that a plaintiff may designate a defendant in a complaint by any name and description when the plaintiff does not know the name of that party. Thus, Civ.R. 15(D) does not permit a plaintiff to designate a defendant by a fictitious name when the plaintiff actually knows the name of that defendant.
“Further, when a plaintiff designates a defendant by a fictitious name, Civ.R. 15(D) requies that the plaintiff provide a description of the defendant in the pleadings and aver in the complaint the fact that the plaintiff could not discover the name. The rule also directs that the summons contain the words ‘name unknown’ and be personally served on the defendant,” he continued.
Justice O’Donnell pointed out that “To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action. That is not the purpose of Civ.R. 15(D), and any indication that such a use is sanctioned by the court is disavowed.”
The Supreme Court reversed the appeals court judgment and reinstated the judgment of the trial court granting summary judgment in favor of Swoger and UIMS.
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger, and 11th District Court of Appeals Judge Diane V. Grendell, who sat in place of Justice Robert R. Cupp.
In his dissent, Justice Paul E. Pfeifer cited Chief Justice Celebrezze’s dissent in a 1985 Supreme Court case: “‘Clearly, Rule 15(C) was designed to assist plaintiffs by allowing amendments to relate back to the time of the original filing and was not intended to add yet another obstacle in the path to the courthouse ‘Because of relation back, the intervening statute of limitation does not interfere with the opportunity to amend.’ I can’t offer a more coherent or concise explanation as to why the court is as wrong today as it was in 1985.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Rocco D. Potenza, 330.670.7300, for Dr. William Swoger & Union Internal Medicine Specialties Inc.
Paul W. Flowers, 216.344.9393, for Cora Erwin and Estate of Russell Erwin.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuscarawas App. No. 08-CA-28, 2009-Ohio-758. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Grendell, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Diane V. Grendell, J., of the Eleventh Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2202.pdf
(May 25, 2010) The Supreme Court of Ohio today ruled that the rules of civil procedure do not allow a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed.
The case centered on a wrongful death lawsuit filed by Cora Erwin, whose husband, Russell, died July 15, 2004, several days after his release from the hospital.
On July 10, 2006, within the two-year statute of limitations (time limit) after Mr. Erwin’s death, Mrs. Erwin filed a wrongful death lawsuit naming as defendants Dr. Bryan, Union Hospital, and five unnamed “John Doe” defendants described in the complaint as other physicians unknown to Mrs. Erwin at the time of filing whose acts or omissions may have contributed to Mr. Erwin’s death. On July 15, 2006, the statute of limitations for filing a wrongful death claim arising from Mr. Erwin’s death expired.
On June 29, 2007, after her attorneys had deposed Dr. Bryan, Mrs. Erwin sought leave to amend her complaint to substitute the name of Dr. William Swoger, a physician who had been involved in the intubation of her husband during his hospitalization, for one of the “John Doe” defendants. The trial judge granted leave to amend the complaint, and Dr. Swoger and his medical practice, Union Internal Medical Specialties Inc. (UIMS), were served with copies of the amended complaint naming them as defendants. Dr. Swoger and UIMS subsequently filed a motion for summary judgment dismissing them as defendants on the basis that Mrs. Erwin had not asserted claims against them until after the July 15, 2006 statute of limitations had expired. The trial court granted summary judgment in favor of Dr. Swoger and UIMS based on the statute of limitations.
Mrs. Erwin appealed the trial court’s grant of summary judgment, arguing that because she had included then-unknown John Doe physicians as defendants in her original and timely complaint, Civil Rule 15(D) allowed her to amend that complaint within one year after the original filing date by substituting the name of an actual defendant for a John Doe defendant. The 5th District Court of Appeals reversed the trial court’s grant of summary judgment and reinstated Mrs. Erwin’s claims against Dr. Swoger and UIMS. The Supreme Court agreed to review the 5th District’s decision.
The majority opinion authored by Justice Terrence O’Donnell stated: “According to its unambiguous language, Civ.R. 15(D) provides that a plaintiff may designate a defendant in a complaint by any name and description when the plaintiff does not know the name of that party. Thus, Civ.R. 15(D) does not permit a plaintiff to designate a defendant by a fictitious name when the plaintiff actually knows the name of that defendant.
“Further, when a plaintiff designates a defendant by a fictitious name, Civ.R. 15(D) requies that the plaintiff provide a description of the defendant in the pleadings and aver in the complaint the fact that the plaintiff could not discover the name. The rule also directs that the summons contain the words ‘name unknown’ and be personally served on the defendant,” he continued.
Justice O’Donnell pointed out that “To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action. That is not the purpose of Civ.R. 15(D), and any indication that such a use is sanctioned by the court is disavowed.”
The Supreme Court reversed the appeals court judgment and reinstated the judgment of the trial court granting summary judgment in favor of Swoger and UIMS.
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger, and 11th District Court of Appeals Judge Diane V. Grendell, who sat in place of Justice Robert R. Cupp.
In his dissent, Justice Paul E. Pfeifer cited Chief Justice Celebrezze’s dissent in a 1985 Supreme Court case: “‘Clearly, Rule 15(C) was designed to assist plaintiffs by allowing amendments to relate back to the time of the original filing and was not intended to add yet another obstacle in the path to the courthouse ‘Because of relation back, the intervening statute of limitation does not interfere with the opportunity to amend.’ I can’t offer a more coherent or concise explanation as to why the court is as wrong today as it was in 1985.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Rocco D. Potenza, 330.670.7300, for Dr. William Swoger & Union Internal Medicine Specialties Inc.
Paul W. Flowers, 216.344.9393, for Cora Erwin and Estate of Russell Erwin.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Saturday, March 27, 2010
Electronic Notice of Class Action Settlements
by Attorney Adam Russ of the law firm Frantz Ward, LLP.
Editor's Note: This was sent to me by Attorney Greg Frakas because he thought that it would be of interest to attorneys who do class action litigation. I would like to take this opportunity to thank Attorney Farkas and Attorney Russ for sending me this article.
Emerging Issues: Electronic Notice of Class Action Settlements
Like its federal counterpart, Rule 23 of the Ohio Rules of Civil Procedure governs class actions. Once a trial court certifies a class under Rule 23, all potential members of that class “who are identifiable through reasonable effort” must be given “best notice practicable” in order to comport with due process concerns. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974). “A class action cannot be settled unless class members have been afforded notice of the proposed settlement and the trial court has determined, after a hearing on the matter, that the settlement is fair, adequate and reasonable.” West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, citing In re Kroger Co. Shareholders Litigation, 70 Ohio App.3d 52, 67 (Ohio 1990); Ohio R. Civ. P. 23(E).
WHAT CONSTITUTES “BEST NOTICE PRACTICABLE” TO CLASS MEMBERS?
A recent Ohio appellate court decision addressed the issue of how electronic mail fits into the analysis of constitutes the “best notice practicable” under Rule 23. In West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, the Ohio Court of Appeals, Eighth Appellate District, decided an appeal of certification of a revised class action settlement involving claims brought against Defendants Carfax, Inc., and Polk Carfax, Inc., which sell vehicle history reports for used cars. Id. at 1-2. The suit alleged, among other things, that the Defendants “violated the Ohio Consumer Sales Practices Act, and the common law, by not informing customers its reports did not contain all information regarding vehicles’ histories…” Id. at 2. Two years after it was filed, Defendants entered into a proposed settlement, which the Trumbull County Court of Common Pleas preliminarily approved. Id. at 3. After objections were raised to the proposed settlement, the Trumbull County Court of Common Pleas approved a revised settlement. Id. at 4-6. Multiple objections followed, resulting in the appeal.
On appeal, the Eighth Appellate District court reviewed three assignments of error de novo to determine whether the class notice approved by the trial court violated procedural due process, including:
(1) whether the trial court erred in approving the class action settlement, which allegedly failed to take reasonable steps to provide individual notice to all class members; and
(2) whether the trial court erred in approving a class action settlement without requiring the parties to provide any indication of the likely redemption rate, and, in particular, information about the number of claims made.
Id. at 8-9.
The defendants had provided notice of the proposed revised settlement using two primary methods: (1) individual email notice to those email addresses of purchasers listed in the Carfax database after October 27, 2003, and (2) a one-time publication in both Investor’s Business Daily and USA Today. Id. at 15. The email effort used achieved a non-rejection rate of 92% of all emails sent, and the publications chosen had a combined circulation of 2.7 million readers per day. Id. In addition, Carfax and class counsel also published notice on their websites. Id.
Nevertheless, appellants contended that the notice provided violated due process for several reasons. Appellants pointed out that Carfax customers prior to October 27, 2003, received no individualized notice, while those who received email notice could treat it as “spam” and delete it. An expert witness also suggested that Defendants could have compiled a list for mail notification for by comparing the names of the present owners of each effected vehicle with their customer lists. Id. at 17. That expert also believed that notice in the chosen publications was unlikely to be read by the population demographic that dominates the used car market. Id.
The Court’s majority opinion reversed the trial court, and it found that notice of settlement to the class was defective. Id. at 19. Based upon the specific facts of the case, the Court required that Defendants provide individualized traditional mail notice of the settlement to al members of the class “who may be identified with reasonable effort” rather than through electronic means. Id. at 19. Furthermore, the Court found that limiting email notice to identifiable potential class members from October 2003 forward was unreasonable as “a large percentage of potential class members from as far back as 2000 might be reached by email” or through the preferred traditional mail method. Id. at 20.
WHEN IS ELECTRONIC NOTICE UNREASONABLE?
In addition to the majority opinion, Judge Mary Jane Trapp wrote a separate concurring opinion to elaborate on the adequacy of email notification to class members. Id. at 33. The concurring opinion directly questioned the reasonableness of the measures employed by Defendants given their business model. She noted that witnesses in the case acknowledged that Carfax had a VIN for each car that was subject to a report and that Polk Carfax “is in the very business of providing names and address of vehicle owners in class actions.” Id. at 35. As a result, Carfax “could have provided Polk Carfax a list of the VINs for the subject vehicles, and Polk Carfax could have prepared an address list for the current owners of the vehicles. By comparing the names of the current owners and those on its customer list, Carfax could have then prepared a list for mail notification.” Id. Defendants never took these steps, relying instead upon electronic notice.
Judge Trapp’s opinion highlighted the problems of email notice generally, pointing out that email often may not reach a potential class member due to infrequent use, while others change email addresses with no forwarding program in place, making such notice unlikely to be received. Id. at 36. Although she recognized that, “[o]bviously, notification by email is more convenient and less expensive, she strongly cautioned that “the law is quite clear that concerns about the financial burdens of such notice cannot excuse noncompliance with that requirement.” Id. at 37, citing Kanvaly v. EBay, Inc., 245 F.R.D. 71, 92 (E.D.N.Y. 2007). Though courts have deemed email notice “particularly suitable where… claims arise from their visits to the defendant’s Internet business,” the defendants in West were both in the business of information retrieval and database maintenance, making them “particularly well suited to identify class members and their addresses.” Id. at 39. In light of that, Judge Trapp opined that email notification “falls short of the ‘reasonable effort’ required by due process and is not an adequate substitute for the more reliable method of first-class mail notification.
Not all of the judges on the Eighth Appellate District panel, however, agreed with the majority or concurring opinion. Judge Diane V. Grendell wrote a dissenting opinion that would have affirmed the trial court’s approval of the revised settlement. Like Judge Trapp’s concurrence, the dissent focused on Defendants’ actual business model but conversely found that, because Carfax sends its reports to customers via email, such email notice was reasonable and would be the “best notice practicable” to potential class members. Importantly, she noted that Carfax does not use direct mail as its primary means of communication; thus, requiring Defendants to obtain individual addresses could be expensive, with no guarantee that it would result in increased notification to a significant number of additional class members. Id. at 47.
Judge Grendell also looked at the totality of notice provided to potential class members. Even if email notice had not been the “best notice,” Judge Grendell believed that the other forms of notice used during the case – publication of the revised settlement notice in Investor’s Business Daily and USA Today, coupled with the considerable media attention given to the case – provided adequate notice to potential class members. Id. at 45-46; see also; Thomas v. NCO Fin. Sys. Inc., 2004 U.S. Dist. LEXIS 5405, at *14-*15 (E.D. Pa. 2004). In so finding, she relied upon the notion that individual notice is not required in instances where there is no reasonable way to sufficiently identify the class members. Id. at 47.
CONCLUSION
Even though email notice of a settlement may be cost effective and consistent with a party’s communication methods under its business model, such notice still may not be the “best notice practicable” for the potential class members. The West decision illustrates that in reaching a class action settlement, parties must be careful to identify all potential members of that class through “reasonable effort.” In doing so, defendants must be careful to take additional steps to identify and notify potential class members, even where doing so may be more expensive or cumbersome than using today’s electronic methods.
For more information, contact the attorneys of Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1660.
MARCH ■ 2010
Editor's Note: This was sent to me by Attorney Greg Frakas because he thought that it would be of interest to attorneys who do class action litigation. I would like to take this opportunity to thank Attorney Farkas and Attorney Russ for sending me this article.
Emerging Issues: Electronic Notice of Class Action Settlements
Like its federal counterpart, Rule 23 of the Ohio Rules of Civil Procedure governs class actions. Once a trial court certifies a class under Rule 23, all potential members of that class “who are identifiable through reasonable effort” must be given “best notice practicable” in order to comport with due process concerns. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974). “A class action cannot be settled unless class members have been afforded notice of the proposed settlement and the trial court has determined, after a hearing on the matter, that the settlement is fair, adequate and reasonable.” West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, citing In re Kroger Co. Shareholders Litigation, 70 Ohio App.3d 52, 67 (Ohio 1990); Ohio R. Civ. P. 23(E).
WHAT CONSTITUTES “BEST NOTICE PRACTICABLE” TO CLASS MEMBERS?
A recent Ohio appellate court decision addressed the issue of how electronic mail fits into the analysis of constitutes the “best notice practicable” under Rule 23. In West v. Carfax, Inc., Case No. 2008-T-0045, 2009-Ohio-6857, the Ohio Court of Appeals, Eighth Appellate District, decided an appeal of certification of a revised class action settlement involving claims brought against Defendants Carfax, Inc., and Polk Carfax, Inc., which sell vehicle history reports for used cars. Id. at 1-2. The suit alleged, among other things, that the Defendants “violated the Ohio Consumer Sales Practices Act, and the common law, by not informing customers its reports did not contain all information regarding vehicles’ histories…” Id. at 2. Two years after it was filed, Defendants entered into a proposed settlement, which the Trumbull County Court of Common Pleas preliminarily approved. Id. at 3. After objections were raised to the proposed settlement, the Trumbull County Court of Common Pleas approved a revised settlement. Id. at 4-6. Multiple objections followed, resulting in the appeal.
On appeal, the Eighth Appellate District court reviewed three assignments of error de novo to determine whether the class notice approved by the trial court violated procedural due process, including:
(1) whether the trial court erred in approving the class action settlement, which allegedly failed to take reasonable steps to provide individual notice to all class members; and
(2) whether the trial court erred in approving a class action settlement without requiring the parties to provide any indication of the likely redemption rate, and, in particular, information about the number of claims made.
Id. at 8-9.
The defendants had provided notice of the proposed revised settlement using two primary methods: (1) individual email notice to those email addresses of purchasers listed in the Carfax database after October 27, 2003, and (2) a one-time publication in both Investor’s Business Daily and USA Today. Id. at 15. The email effort used achieved a non-rejection rate of 92% of all emails sent, and the publications chosen had a combined circulation of 2.7 million readers per day. Id. In addition, Carfax and class counsel also published notice on their websites. Id.
Nevertheless, appellants contended that the notice provided violated due process for several reasons. Appellants pointed out that Carfax customers prior to October 27, 2003, received no individualized notice, while those who received email notice could treat it as “spam” and delete it. An expert witness also suggested that Defendants could have compiled a list for mail notification for by comparing the names of the present owners of each effected vehicle with their customer lists. Id. at 17. That expert also believed that notice in the chosen publications was unlikely to be read by the population demographic that dominates the used car market. Id.
The Court’s majority opinion reversed the trial court, and it found that notice of settlement to the class was defective. Id. at 19. Based upon the specific facts of the case, the Court required that Defendants provide individualized traditional mail notice of the settlement to al members of the class “who may be identified with reasonable effort” rather than through electronic means. Id. at 19. Furthermore, the Court found that limiting email notice to identifiable potential class members from October 2003 forward was unreasonable as “a large percentage of potential class members from as far back as 2000 might be reached by email” or through the preferred traditional mail method. Id. at 20.
WHEN IS ELECTRONIC NOTICE UNREASONABLE?
In addition to the majority opinion, Judge Mary Jane Trapp wrote a separate concurring opinion to elaborate on the adequacy of email notification to class members. Id. at 33. The concurring opinion directly questioned the reasonableness of the measures employed by Defendants given their business model. She noted that witnesses in the case acknowledged that Carfax had a VIN for each car that was subject to a report and that Polk Carfax “is in the very business of providing names and address of vehicle owners in class actions.” Id. at 35. As a result, Carfax “could have provided Polk Carfax a list of the VINs for the subject vehicles, and Polk Carfax could have prepared an address list for the current owners of the vehicles. By comparing the names of the current owners and those on its customer list, Carfax could have then prepared a list for mail notification.” Id. Defendants never took these steps, relying instead upon electronic notice.
Judge Trapp’s opinion highlighted the problems of email notice generally, pointing out that email often may not reach a potential class member due to infrequent use, while others change email addresses with no forwarding program in place, making such notice unlikely to be received. Id. at 36. Although she recognized that, “[o]bviously, notification by email is more convenient and less expensive, she strongly cautioned that “the law is quite clear that concerns about the financial burdens of such notice cannot excuse noncompliance with that requirement.” Id. at 37, citing Kanvaly v. EBay, Inc., 245 F.R.D. 71, 92 (E.D.N.Y. 2007). Though courts have deemed email notice “particularly suitable where… claims arise from their visits to the defendant’s Internet business,” the defendants in West were both in the business of information retrieval and database maintenance, making them “particularly well suited to identify class members and their addresses.” Id. at 39. In light of that, Judge Trapp opined that email notification “falls short of the ‘reasonable effort’ required by due process and is not an adequate substitute for the more reliable method of first-class mail notification.
Not all of the judges on the Eighth Appellate District panel, however, agreed with the majority or concurring opinion. Judge Diane V. Grendell wrote a dissenting opinion that would have affirmed the trial court’s approval of the revised settlement. Like Judge Trapp’s concurrence, the dissent focused on Defendants’ actual business model but conversely found that, because Carfax sends its reports to customers via email, such email notice was reasonable and would be the “best notice practicable” to potential class members. Importantly, she noted that Carfax does not use direct mail as its primary means of communication; thus, requiring Defendants to obtain individual addresses could be expensive, with no guarantee that it would result in increased notification to a significant number of additional class members. Id. at 47.
Judge Grendell also looked at the totality of notice provided to potential class members. Even if email notice had not been the “best notice,” Judge Grendell believed that the other forms of notice used during the case – publication of the revised settlement notice in Investor’s Business Daily and USA Today, coupled with the considerable media attention given to the case – provided adequate notice to potential class members. Id. at 45-46; see also; Thomas v. NCO Fin. Sys. Inc., 2004 U.S. Dist. LEXIS 5405, at *14-*15 (E.D. Pa. 2004). In so finding, she relied upon the notion that individual notice is not required in instances where there is no reasonable way to sufficiently identify the class members. Id. at 47.
CONCLUSION
Even though email notice of a settlement may be cost effective and consistent with a party’s communication methods under its business model, such notice still may not be the “best notice practicable” for the potential class members. The West decision illustrates that in reaching a class action settlement, parties must be careful to identify all potential members of that class through “reasonable effort.” In doing so, defendants must be careful to take additional steps to identify and notify potential class members, even where doing so may be more expensive or cumbersome than using today’s electronic methods.
For more information, contact the attorneys of Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1660.
MARCH ■ 2010
Friday, January 29, 2010
Rummaging Through the Electronic File Cabinet: Ohio Courts Consider Forensic Imaging of Computers.
By Attorney Gregory R. Farkas, Frantz Ward LLP
The expense and potential pitfalls of electronic discovery have now been well documented. Courts and legislatures have struggled to balance the general policy in favor of broad discovery of factual information against the burden electronic discovery can impose. One aspect of electronic discovery where these competing concerns are especially challenging is requests to forensically examine an opposing party’s computer. Two recent Ohio appellate opinions, Bennett v. Martin (10th App. Dist. Nov. 24, 2009), 2009-Ohio-6195 (“Bennett”), and Cornwell v. Northern Ohio Surgical Ctr., Ltd. (6th App. Dist. Dec. 31, 2009), 2009-Ohio-6975 (“Cornwell”), provide the first detailed Ohio appellate guidance on when such examinations are proper and how they should be conducted.
What is Forensic Imaging?
Forensic imaging or “mirror imaging” has been defined as “a forensic duplicate, which replicates bit for bit, sector by sector, all allocated and unallocated space, including slack space on a computer hard drive." Balboa Threadworks, Inc. v. Stucky, 2006 U.S. Dist. LEXIS 29265 at *3 (D. Kan. March 24, 2006). In other words, it makes an identical copy of all electronic information stored on the computer. This allows the party making the image to review all information contained on the computer, potentially including deleted files and messages. Because of the amount of information contained on a forensic image, a request for such an image has been compared to a request to rummage through your client’s file cabinets. See Steve Puiszis, An “Old School” Approach to Requests for Electronic Imaging of Computers (October 5, 2009), available at http://forthedefense.org/post/An-e2809cold-schoole2809d-approach-to-requests-for-forensic-imaging-of-computers.aspx.
When is Forensic Imaging Appropriate?
The intrusive nature of forensic imaging is recognized in the Advisory Committee Note to Fed. R. Civ. P. 34(a), which cautions that "[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems." Consistent with this caution, federal courts have generally allowed forensic imaging of computer systems only where there is evidence that a party’s production of electronic information was incomplete or that electronic information may have been lost or destroyed. See, e.g., Carrie v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (explaining forensic examination should not be permitted automatically but must be allowed only based on facts and circumstances of individual case); McCurdy Grp., LLC v. Am. Biomedical Grp., Inc., 9 F. App’x 822, 831 (10th Cir. 2001); Scotts Co. v. Liberty Mut. Ins. Co., 2007 U.S. Dist. LEXIS 43005 (S.D. Ohio June 12, 2007); Henderson v. U.S. Bank, N.A., 2009 U.S. Dist. LEXIS 40968 (E.D. Wis. Apr. 29, 2009); Diepenhurst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551 (W.D. Mich. June 30, 2006). State court decisions considering such requests have generally followed suit. See, e.g., In re Weekley Homes, L.P., 295 S.W. 3d 309, 319 (Tex. 2009) (discussing production of forensic images under Texas Rules of Civil Procedure and applying federal case law in determining search was not appropriate).
While the Staff Notes to Ohio Civil Rule 34 do not contain the same caution language as the Federal Advisory Committee Note, the Bennett and Cromwell decisions applied federal precedent in determining whether forensic imaging was appropriate. In Bennett, the Tenth District held that the trial court’s finding that the party from whom discovery was sought had “repeatedly represented that they had disclosed all responsive documents when they had not” and the party’s “lackadaisical and dilatory approach to providing discovery” justified ordering forensic imaging. 2009-Ohio-6195 at ¶47-48.
Similarly, in Cornwell there were allegations that specific language appearing in a letter, but not in a medical note, may have been deleted from the electronic copy of the note. 2009-Ohio-6975 at ¶35. There were also questions about whether the computer at issue had been infected with viruses and was operating properly and the plaintiffs had pled a claim for spoliation of evidence claim. Id. at ¶35-36. The Sixth District agreed with the trial court that, taken together, these circumstances warranted review of a forensic image of the computer in question. Id.
While Cromwell appears to be correctly decided on its facts, the reference to spoliation should not be read overly broadly to allow unsupported allegations of spoliation to trigger an obligation to produce forensic images. Cf. State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-861 at ¶15-16 (explaining the need to provide some evidence of spoliation before forensic examination of computers is appropriate in criminal cases); Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 13-14 (D.D.C. 2009) (explaining that most electronic productions will contain apparent gaps due to the nature of electronic documents and that more than allegation or suspicion of improper conduct is required before forensic examination will be required); Superior Prod. Partnership v. Gordon Auto Body Parts Co., Ltd., No. 06-CV-916, 2009 U.S. Dist. LEXIS 25890 at *2-3 (S.D. Ohio Mar. 12, 2009) (refusing to allow forensic search as a sanction for discovery misconduct where party seeking exam had not provided any evidence that relevant e-mails had been lost or destroyed by inadequate litigation hold); Balfour Beatty Rail Inc., 2007 U.S. Dist. LEXIS 43005 at *6 (M.D. Fla. Jan. 18, 2007); Powers v. Thomas M. Cooley Law Sch., 2006 U.S. Dist. LEXIS 67706 at *14 (W.D. Mich. Sept. 21, 2006).
What Do You Do About Privileged or Confidential Information?
In addition to the threshold issue of whether forensic imaging was appropriate, both the Bennett and Cornwell decisions also addressed the protocol for the forensic imaging process. Given the nature and amount of information that can be disclosed through the review of a forensic image, courts have held that a detailed protocol explaining how the review will be conducted is required See, e.g., In re Weekley Homes, 295 S.W.3d at 318 (explaining that only qualified expert, rather than parties themselves, should be allowed access to image, that search terms or other limitations on review should be agreed to beforehand, and that “privilege, privacy and confidentiality” concerns must be addressed).
In Bennett, the Tenth District found that while forensic imaging was appropriate, the trial court abused its discretion in ordering production of the forensic image without entering a detailed protocol that explained how the image would be used and searched. 2009-Ohio-6195 at ¶48. The Tenth District found that the trial court’s order was inadequate despite containing a provision for redaction of privileged information by the producing party. Id. The appellate court remanded the case and urged the trial court to adopt a protocol that would limit review of the forensic image to relevant information and protect personal information from disclosure. Id.
In Cornwell, crafting an appropriate protocol was complicated by the fact the computer at issue contained privileged medical records of patients who were not parties to the case. 2009-Ohio-6975 at ¶24. Because the computer contained privileged record, the parties resisting production claimed that any review of the forensic image could subject them to liability under Biddle v. Warren Gen Hosp. (1999), 86 Ohio St. 3d 395, 1999-Ohio-115. Id. at ¶27. The Sixth District recognized the validity of these concerns, but held that the proposed protocol adequately addressed them.
Specifically, the court noted that the expert retained to make the image would not be reviewing the actual content of the files, but rather would be searching for key words approved by the court and looking at file log and registry information that would not contain the substance of patients’ medical information. Id. at ¶25-26. The court also recognized that the proposed protocol allowed the producing party to review the list of files identified through the searches and submit a privilege log to the court before the substance of any of the files was disclosed. Id. at ¶29. Despite the sensitivity of the information at issue, the Sixth District found that these safeguards were sufficient to allow the forensic imaging.
Bennett and Cornwell are clear that development of a detailed protocol explaining how the forensic image will be made and searched is an essential component of any request for such information. The protocol must take into account the likelihood that privileged, confidential or irrelevant personal information may be uncovered during the search process and explain in detail how such information will be protected. Also, as in many other areas of electronic discovery, cooperation between the parties in developing such a protocol may lower costs and reduce the risks and burdens for everyone. See, e.g., The Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedonaconference.org/dltForm?did=proclamation.pdf.
Conclusion
Bennett and Cornwell are the first Ohio appellate opinions that contain detailed guidance on when forensic imaging of computers may be appropriate. Consistent with the old saying that “pigs get fed and hogs get slaughtered,” the decisions make clear that automatic and broad requests for forensic imaging are not the best way to obtain such data. Rather, a party should lay the necessary groundwork for such a request either through pre-suit investigation or other discovery and narrowly tailor the request to avoid “fishing expedition” and privilege objections. Parties faced with broad and unsupported claims for forensic imaging can rely on Bennett and Cornwell as persuasive authority that such requests are improper.
For more information, contact Gregory R. Farkas, Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1635 gfarkas@frantzward.com
Editor's Note: This article is provided for the professional education of attorney and judges in Ohio. It does not necessarily reflect the opinions of Judge James L. Kimbler.
The expense and potential pitfalls of electronic discovery have now been well documented. Courts and legislatures have struggled to balance the general policy in favor of broad discovery of factual information against the burden electronic discovery can impose. One aspect of electronic discovery where these competing concerns are especially challenging is requests to forensically examine an opposing party’s computer. Two recent Ohio appellate opinions, Bennett v. Martin (10th App. Dist. Nov. 24, 2009), 2009-Ohio-6195 (“Bennett”), and Cornwell v. Northern Ohio Surgical Ctr., Ltd. (6th App. Dist. Dec. 31, 2009), 2009-Ohio-6975 (“Cornwell”), provide the first detailed Ohio appellate guidance on when such examinations are proper and how they should be conducted.
What is Forensic Imaging?
Forensic imaging or “mirror imaging” has been defined as “a forensic duplicate, which replicates bit for bit, sector by sector, all allocated and unallocated space, including slack space on a computer hard drive." Balboa Threadworks, Inc. v. Stucky, 2006 U.S. Dist. LEXIS 29265 at *3 (D. Kan. March 24, 2006). In other words, it makes an identical copy of all electronic information stored on the computer. This allows the party making the image to review all information contained on the computer, potentially including deleted files and messages. Because of the amount of information contained on a forensic image, a request for such an image has been compared to a request to rummage through your client’s file cabinets. See Steve Puiszis, An “Old School” Approach to Requests for Electronic Imaging of Computers (October 5, 2009), available at http://forthedefense.org/post/An-e2809cold-schoole2809d-approach-to-requests-for-forensic-imaging-of-computers.aspx.
When is Forensic Imaging Appropriate?
The intrusive nature of forensic imaging is recognized in the Advisory Committee Note to Fed. R. Civ. P. 34(a), which cautions that "[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems." Consistent with this caution, federal courts have generally allowed forensic imaging of computer systems only where there is evidence that a party’s production of electronic information was incomplete or that electronic information may have been lost or destroyed. See, e.g., Carrie v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (explaining forensic examination should not be permitted automatically but must be allowed only based on facts and circumstances of individual case); McCurdy Grp., LLC v. Am. Biomedical Grp., Inc., 9 F. App’x 822, 831 (10th Cir. 2001); Scotts Co. v. Liberty Mut. Ins. Co., 2007 U.S. Dist. LEXIS 43005 (S.D. Ohio June 12, 2007); Henderson v. U.S. Bank, N.A., 2009 U.S. Dist. LEXIS 40968 (E.D. Wis. Apr. 29, 2009); Diepenhurst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551 (W.D. Mich. June 30, 2006). State court decisions considering such requests have generally followed suit. See, e.g., In re Weekley Homes, L.P., 295 S.W. 3d 309, 319 (Tex. 2009) (discussing production of forensic images under Texas Rules of Civil Procedure and applying federal case law in determining search was not appropriate).
While the Staff Notes to Ohio Civil Rule 34 do not contain the same caution language as the Federal Advisory Committee Note, the Bennett and Cromwell decisions applied federal precedent in determining whether forensic imaging was appropriate. In Bennett, the Tenth District held that the trial court’s finding that the party from whom discovery was sought had “repeatedly represented that they had disclosed all responsive documents when they had not” and the party’s “lackadaisical and dilatory approach to providing discovery” justified ordering forensic imaging. 2009-Ohio-6195 at ¶47-48.
Similarly, in Cornwell there were allegations that specific language appearing in a letter, but not in a medical note, may have been deleted from the electronic copy of the note. 2009-Ohio-6975 at ¶35. There were also questions about whether the computer at issue had been infected with viruses and was operating properly and the plaintiffs had pled a claim for spoliation of evidence claim. Id. at ¶35-36. The Sixth District agreed with the trial court that, taken together, these circumstances warranted review of a forensic image of the computer in question. Id.
While Cromwell appears to be correctly decided on its facts, the reference to spoliation should not be read overly broadly to allow unsupported allegations of spoliation to trigger an obligation to produce forensic images. Cf. State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-861 at ¶15-16 (explaining the need to provide some evidence of spoliation before forensic examination of computers is appropriate in criminal cases); Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 13-14 (D.D.C. 2009) (explaining that most electronic productions will contain apparent gaps due to the nature of electronic documents and that more than allegation or suspicion of improper conduct is required before forensic examination will be required); Superior Prod. Partnership v. Gordon Auto Body Parts Co., Ltd., No. 06-CV-916, 2009 U.S. Dist. LEXIS 25890 at *2-3 (S.D. Ohio Mar. 12, 2009) (refusing to allow forensic search as a sanction for discovery misconduct where party seeking exam had not provided any evidence that relevant e-mails had been lost or destroyed by inadequate litigation hold); Balfour Beatty Rail Inc., 2007 U.S. Dist. LEXIS 43005 at *6 (M.D. Fla. Jan. 18, 2007); Powers v. Thomas M. Cooley Law Sch., 2006 U.S. Dist. LEXIS 67706 at *14 (W.D. Mich. Sept. 21, 2006).
What Do You Do About Privileged or Confidential Information?
In addition to the threshold issue of whether forensic imaging was appropriate, both the Bennett and Cornwell decisions also addressed the protocol for the forensic imaging process. Given the nature and amount of information that can be disclosed through the review of a forensic image, courts have held that a detailed protocol explaining how the review will be conducted is required See, e.g., In re Weekley Homes, 295 S.W.3d at 318 (explaining that only qualified expert, rather than parties themselves, should be allowed access to image, that search terms or other limitations on review should be agreed to beforehand, and that “privilege, privacy and confidentiality” concerns must be addressed).
In Bennett, the Tenth District found that while forensic imaging was appropriate, the trial court abused its discretion in ordering production of the forensic image without entering a detailed protocol that explained how the image would be used and searched. 2009-Ohio-6195 at ¶48. The Tenth District found that the trial court’s order was inadequate despite containing a provision for redaction of privileged information by the producing party. Id. The appellate court remanded the case and urged the trial court to adopt a protocol that would limit review of the forensic image to relevant information and protect personal information from disclosure. Id.
In Cornwell, crafting an appropriate protocol was complicated by the fact the computer at issue contained privileged medical records of patients who were not parties to the case. 2009-Ohio-6975 at ¶24. Because the computer contained privileged record, the parties resisting production claimed that any review of the forensic image could subject them to liability under Biddle v. Warren Gen Hosp. (1999), 86 Ohio St. 3d 395, 1999-Ohio-115. Id. at ¶27. The Sixth District recognized the validity of these concerns, but held that the proposed protocol adequately addressed them.
Specifically, the court noted that the expert retained to make the image would not be reviewing the actual content of the files, but rather would be searching for key words approved by the court and looking at file log and registry information that would not contain the substance of patients’ medical information. Id. at ¶25-26. The court also recognized that the proposed protocol allowed the producing party to review the list of files identified through the searches and submit a privilege log to the court before the substance of any of the files was disclosed. Id. at ¶29. Despite the sensitivity of the information at issue, the Sixth District found that these safeguards were sufficient to allow the forensic imaging.
Bennett and Cornwell are clear that development of a detailed protocol explaining how the forensic image will be made and searched is an essential component of any request for such information. The protocol must take into account the likelihood that privileged, confidential or irrelevant personal information may be uncovered during the search process and explain in detail how such information will be protected. Also, as in many other areas of electronic discovery, cooperation between the parties in developing such a protocol may lower costs and reduce the risks and burdens for everyone. See, e.g., The Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedonaconference.org/dltForm?did=proclamation.pdf.
Conclusion
Bennett and Cornwell are the first Ohio appellate opinions that contain detailed guidance on when forensic imaging of computers may be appropriate. Consistent with the old saying that “pigs get fed and hogs get slaughtered,” the decisions make clear that automatic and broad requests for forensic imaging are not the best way to obtain such data. Rather, a party should lay the necessary groundwork for such a request either through pre-suit investigation or other discovery and narrowly tailor the request to avoid “fishing expedition” and privilege objections. Parties faced with broad and unsupported claims for forensic imaging can rely on Bennett and Cornwell as persuasive authority that such requests are improper.
For more information, contact Gregory R. Farkas, Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1635 gfarkas@frantzward.com
Editor's Note: This article is provided for the professional education of attorney and judges in Ohio. It does not necessarily reflect the opinions of Judge James L. Kimbler.
Thursday, December 18, 2008
Update on Proposed Changes to Civ. R. 4
Medina County Domestic Relations Judge Mary R. Kovack submitted the following concerning proposed changes to Civ. R. 4:
Update on proposed changes to Civ. R. 4.
The comments on the change to plaintiff's service and the elimination of the perfection of "unclaimed" service by regular mail were overwhelmingly negative. 45 lawyers (on behalf of themselves or law firms) opined that the current system for service works well. Sixteen organizations or groups voiced opposition, including: Legal Aid agencies in Columbus, Cincinnati, Cleveland, and Southeastern Ohio; the 1500-member Ohio Association for Justice; the Ohio Child Support Enforcement Agency (CSEA) Directors’ Association and the individual CSEA agencies in Franklin, Clermont, and Montgomery counties; the Litigation Section and the Negligence Law Committee of the OSBA; the Ohio Creditor Attorneys Association; the Akron Bar Association’s Civil Procedure and Appellate Courts Committee; the Crawford County Bar Association; and the Ohio Department of Public Safety. Three subdivisions of the Ohio Judicial Conference voiced opposition: the Civil Law and Procedure Committee, the Domestic Relations Law and Procedure Committee, and the Domestic Relations Judges Executive Committee. Judges and magistrates from six counties also voiced significant concerns about the changes. One pro se litigant also weighed in against the proposed changes.
On December 5th, the Commission on Rules and Procedure voted unanimously to withdraw the proposed changes.
.
The only proposed change to Civ. R. 4 that the Commission voted to recommend to the Supreme Court for final approval is the addition of Civ.R. 4.2(G). This provides for service on Limited Liability Companies, a matter not addressed in the current rules.
Update on proposed changes to Civ. R. 4.
The comments on the change to plaintiff's service and the elimination of the perfection of "unclaimed" service by regular mail were overwhelmingly negative. 45 lawyers (on behalf of themselves or law firms) opined that the current system for service works well. Sixteen organizations or groups voiced opposition, including: Legal Aid agencies in Columbus, Cincinnati, Cleveland, and Southeastern Ohio; the 1500-member Ohio Association for Justice; the Ohio Child Support Enforcement Agency (CSEA) Directors’ Association and the individual CSEA agencies in Franklin, Clermont, and Montgomery counties; the Litigation Section and the Negligence Law Committee of the OSBA; the Ohio Creditor Attorneys Association; the Akron Bar Association’s Civil Procedure and Appellate Courts Committee; the Crawford County Bar Association; and the Ohio Department of Public Safety. Three subdivisions of the Ohio Judicial Conference voiced opposition: the Civil Law and Procedure Committee, the Domestic Relations Law and Procedure Committee, and the Domestic Relations Judges Executive Committee. Judges and magistrates from six counties also voiced significant concerns about the changes. One pro se litigant also weighed in against the proposed changes.
On December 5th, the Commission on Rules and Procedure voted unanimously to withdraw the proposed changes.
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The only proposed change to Civ. R. 4 that the Commission voted to recommend to the Supreme Court for final approval is the addition of Civ.R. 4.2(G). This provides for service on Limited Liability Companies, a matter not addressed in the current rules.
Monday, December 15, 2008
Rule Amendments Proposed by the Ohio Supreme Court
These are proposed Rule Amendments that were put up for public comment by the Ohio Supreme Court. The comment period ended on November 18, 2008. The information below was obtained from the Ohio Supreme Court website. Rule amendments have to be presented to the Ohio General Assembly by January 15, 2009, and can be revised by the Ohio Supreme Court up until May 1, 2009. Those revisions filed by the Ohio Supreme Court with the Ohio General Assembly by January 15, 2009, and not withdrawn prior to May 1, 2009, are effective July 1, 2009, unless the General Assembly adopts a concurrent resolution of disapproval.
PROPOSED AMENDMENTS TO THE OHIO RULES OF APPELLATE PROCEDURE,OHIO RULES OF CRIMINAL PROCEDURE, and OHIO RULES OF CIVIL PROCEDURE
Comments requested: The Supreme Court of Ohio will accept public comments until November 18, 2008 on the following proposed amendments to the Ohio Rules of Appellate Procedure (4 and 43), Ohio Rules of Civil Procedure (4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 33, 36, 47 and 86), Ohio Rules of Criminal Procedure (24, 32 and 59), and Ohio Rules of Juvenile Procedure (25 and 47)
Comments on the proposed amendments must be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than November 18, 2008. Please include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each justice of the Supreme Court.
Pursuant to Article IV, Section 5(B) of the Ohio Constitution, proposed amendments to rules of procedure must be filed with the General Assembly by January 15 each year. The Commission on the Rules of Practice and Procedure and the Court will consider all comments received during this first comment period and may modify, add, or withdraw proposed amendments before filing with the General Assembly. Any proposed amendments that are filed with the General Assembly in January 2009 will then be republished for a second comment period and may be further revised by filing revisions with the General Assembly prior to May 1, 2009. Those amendments filed with the General Assembly in January 2009 and not withdrawn prior to May 1, 2009 will take effect on July 1, 2009, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.
The proposed amendments were recommended to the Supreme Court by the Supreme Court Commission on the Rules of Practice and Procedure, and the Court is seeking comments on the proposed amendments prior to filing any amendments with the General Assembly. Publication for comment at this time does not indicate that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.
A Staff Note prepared by the Commission on the Rules of Practice and Procedure follows some amendments. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Court and are not a part of the rule; they represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court. For these reasons, the Staff Notes are not filed with the General Assembly but are included when the proposed amendments are published for comment and are made available to the public and to legislative committees.
Following is a summary of the proposed amendments. In addition to the substantive amendments, nonsubstantive grammar and gender-neutral language changes are made throughout any rule that is proposed for amendment.
Appellate Rule 4
The Commission recommends an amendment to Appellate Rule 4 to correct cross-references to both the Ohio Civil Rules of Procedure and the Ohio Rules of Juvenile Procedure. In 2006, the Court adopted amendments to Civ. R. 53 and Juv. R. 40 regarding magistrates. As a part of those amendments divisions in those rules regarding action on a magistrate’s decision by the Court were renumbered. The proposed amendments correct the cross-references to state the appropriate divisions.
Civil Rules 4 through 4.6
The Commission recommends proposed amendments that would require the plaintiff to make service of process rather than the clerk. The key amendments recommended are as follows:
• Civ. R. 4(A): The clerk issues the summons and delivers it to the plaintiff. The serving party’s postage paid is charged to costs upon presentation of proof. Service by certified mail is deemed complete on the date the return receipt was signed if the plaintiff files proof of service before the answer day. Otherwise, service is deemed complete on the date the plaintiff files proof of service.
• Civ. R 4(B) & (C): Personal and residence service continue to be the duty of the sheriff, bailiff or specially appointed adult. Personal and residence service are deemed complete on the date of service if proof of service is filed prior to the answer day. Otherwise, service is deemed complete on the date proof of service is filed.
• Civ. R. 4.2(G): A provision is added for service on a limited liability company.
• Civ. R. 4.3: Amendments that correspond to those governing in-state service are made to the provisions for service outside of the state.
• Civ. R. 4.6 (C) & (D): The provision for service by ordinary mail if certified mail within the state is “refused” is expressly stated as applicable to service outside the state. The provision for service by ordinary mail if certified mail is “unclaimed” is eliminated.
Civil Rules 33 and 36
In 2004, the Court adopted amendments to Civ. R. 33 and 36 requiring parties propounding interrogatories and requests for admissions to provide the responding party both a written and electronic copy. The amendments adopted, however, did not include a consequence for failing to provide the electronic copy.
The Commission recommends amendments to Civ. R. 33(A) and 36(A) to clarify that the period for responding to interrogatories and requests for admission, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy of the interrogatories, and that the failure to provide an electronic copy does not alter the response period. However, if the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.
The amendment is intended to enforce the duty of the party propounding interrogatories and requests for admissions to provide an electronic copy while prohibiting the responding party served with a printed copy to use the failure to receive an electronic copy as reason to disregard the response time designated in the printed copy.
Civil Rule 47
The Commission recommends amendments to Civ. R. 47 clarifying that alternative methods of jury selection are permissible. The Court amended Civ. R. 47 in 2006; however, language retained in the rule arguably only allows for use of the “strike and replace” method of jury selection. The proposed amendments delete the unnecessary language in Civ. R. 47(C) suggesting that the prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language from Civ. R. 47(B) to make clear that both the “strike and replace method” and the “struck” method are permitted.
Criminal Rule 24
Identical to the proposed amendment to Civ. R. 47, the Commission recommends amendments to Crim. R. 24 to delete language suggesting that prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language to make clear that both the “strike and replace method” and the “struck” method are permitted.
Criminal Rule 32
In response to the Court’s decision in State v. Baker, 2008-Ohio-3330, the Commission recommends an amendment to Crim. R. 32(C) to clarify that a judgment of conviction must set forth the guilty plea, verdict, or findings upon which to conviction is based and the sentence.
Juvenile Rule 25
The Commission recommends amendments to Juv. R. 25 that clarify how depositions are to proceed in juvenile courts. Juvenile courts consider a wide variety of cases including those prosecuted by the State, e.g. delinquency and unruly child offenses, which are analogous to criminal cases. Juvenile courts also hear dependency, neglect and abuse actions and actions to permanently terminate parent’s rights which are civil cases. Their jurisdiction also includes private custody cases and parentage actions.
The proposed amendment will bring some measure of uniformity to depositions. Under the current rule, depositions in custody and parentage actions may only take place upon a showing of “good cause”. Domestic relations courts also hear parentage actions and, in those cases, depositions are conducted pursuant to the Rules of Civil Procedure.
The proposed amendments require depositions in parentage and custody proceedings be conducted pursuant to the Rules of Civil Procedure. The Rules of Civil Procedure would also control depositions taken in post-dispositional matters to which the State is no longer a party. This recognizes that dependency, neglect and abuse cases, as well as custody and parentage cases frequently involve a considerable amount of post-decree litigation when the State is no longer involved. Finally, the proposed amendments state that depositions in delinquency cases, abuse-type actions and other proceedings not covered by other provisions of the rule will be conducted only to preserve testimony in limited circumstances.
PROPOSED AMENDMENTS TO THE OHIO RULES OF APPELLATE PROCEDURE,OHIO RULES OF CRIMINAL PROCEDURE, and OHIO RULES OF CIVIL PROCEDURE
Comments requested: The Supreme Court of Ohio will accept public comments until November 18, 2008 on the following proposed amendments to the Ohio Rules of Appellate Procedure (4 and 43), Ohio Rules of Civil Procedure (4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 33, 36, 47 and 86), Ohio Rules of Criminal Procedure (24, 32 and 59), and Ohio Rules of Juvenile Procedure (25 and 47)
Comments on the proposed amendments must be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than November 18, 2008. Please include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each justice of the Supreme Court.
Pursuant to Article IV, Section 5(B) of the Ohio Constitution, proposed amendments to rules of procedure must be filed with the General Assembly by January 15 each year. The Commission on the Rules of Practice and Procedure and the Court will consider all comments received during this first comment period and may modify, add, or withdraw proposed amendments before filing with the General Assembly. Any proposed amendments that are filed with the General Assembly in January 2009 will then be republished for a second comment period and may be further revised by filing revisions with the General Assembly prior to May 1, 2009. Those amendments filed with the General Assembly in January 2009 and not withdrawn prior to May 1, 2009 will take effect on July 1, 2009, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.
The proposed amendments were recommended to the Supreme Court by the Supreme Court Commission on the Rules of Practice and Procedure, and the Court is seeking comments on the proposed amendments prior to filing any amendments with the General Assembly. Publication for comment at this time does not indicate that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.
A Staff Note prepared by the Commission on the Rules of Practice and Procedure follows some amendments. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Court and are not a part of the rule; they represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court. For these reasons, the Staff Notes are not filed with the General Assembly but are included when the proposed amendments are published for comment and are made available to the public and to legislative committees.
Following is a summary of the proposed amendments. In addition to the substantive amendments, nonsubstantive grammar and gender-neutral language changes are made throughout any rule that is proposed for amendment.
Appellate Rule 4
The Commission recommends an amendment to Appellate Rule 4 to correct cross-references to both the Ohio Civil Rules of Procedure and the Ohio Rules of Juvenile Procedure. In 2006, the Court adopted amendments to Civ. R. 53 and Juv. R. 40 regarding magistrates. As a part of those amendments divisions in those rules regarding action on a magistrate’s decision by the Court were renumbered. The proposed amendments correct the cross-references to state the appropriate divisions.
Civil Rules 4 through 4.6
The Commission recommends proposed amendments that would require the plaintiff to make service of process rather than the clerk. The key amendments recommended are as follows:
• Civ. R. 4(A): The clerk issues the summons and delivers it to the plaintiff. The serving party’s postage paid is charged to costs upon presentation of proof. Service by certified mail is deemed complete on the date the return receipt was signed if the plaintiff files proof of service before the answer day. Otherwise, service is deemed complete on the date the plaintiff files proof of service.
• Civ. R 4(B) & (C): Personal and residence service continue to be the duty of the sheriff, bailiff or specially appointed adult. Personal and residence service are deemed complete on the date of service if proof of service is filed prior to the answer day. Otherwise, service is deemed complete on the date proof of service is filed.
• Civ. R. 4.2(G): A provision is added for service on a limited liability company.
• Civ. R. 4.3: Amendments that correspond to those governing in-state service are made to the provisions for service outside of the state.
• Civ. R. 4.6 (C) & (D): The provision for service by ordinary mail if certified mail within the state is “refused” is expressly stated as applicable to service outside the state. The provision for service by ordinary mail if certified mail is “unclaimed” is eliminated.
Civil Rules 33 and 36
In 2004, the Court adopted amendments to Civ. R. 33 and 36 requiring parties propounding interrogatories and requests for admissions to provide the responding party both a written and electronic copy. The amendments adopted, however, did not include a consequence for failing to provide the electronic copy.
The Commission recommends amendments to Civ. R. 33(A) and 36(A) to clarify that the period for responding to interrogatories and requests for admission, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy of the interrogatories, and that the failure to provide an electronic copy does not alter the response period. However, if the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.
The amendment is intended to enforce the duty of the party propounding interrogatories and requests for admissions to provide an electronic copy while prohibiting the responding party served with a printed copy to use the failure to receive an electronic copy as reason to disregard the response time designated in the printed copy.
Civil Rule 47
The Commission recommends amendments to Civ. R. 47 clarifying that alternative methods of jury selection are permissible. The Court amended Civ. R. 47 in 2006; however, language retained in the rule arguably only allows for use of the “strike and replace” method of jury selection. The proposed amendments delete the unnecessary language in Civ. R. 47(C) suggesting that the prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language from Civ. R. 47(B) to make clear that both the “strike and replace method” and the “struck” method are permitted.
Criminal Rule 24
Identical to the proposed amendment to Civ. R. 47, the Commission recommends amendments to Crim. R. 24 to delete language suggesting that prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language to make clear that both the “strike and replace method” and the “struck” method are permitted.
Criminal Rule 32
In response to the Court’s decision in State v. Baker, 2008-Ohio-3330, the Commission recommends an amendment to Crim. R. 32(C) to clarify that a judgment of conviction must set forth the guilty plea, verdict, or findings upon which to conviction is based and the sentence.
Juvenile Rule 25
The Commission recommends amendments to Juv. R. 25 that clarify how depositions are to proceed in juvenile courts. Juvenile courts consider a wide variety of cases including those prosecuted by the State, e.g. delinquency and unruly child offenses, which are analogous to criminal cases. Juvenile courts also hear dependency, neglect and abuse actions and actions to permanently terminate parent’s rights which are civil cases. Their jurisdiction also includes private custody cases and parentage actions.
The proposed amendment will bring some measure of uniformity to depositions. Under the current rule, depositions in custody and parentage actions may only take place upon a showing of “good cause”. Domestic relations courts also hear parentage actions and, in those cases, depositions are conducted pursuant to the Rules of Civil Procedure.
The proposed amendments require depositions in parentage and custody proceedings be conducted pursuant to the Rules of Civil Procedure. The Rules of Civil Procedure would also control depositions taken in post-dispositional matters to which the State is no longer a party. This recognizes that dependency, neglect and abuse cases, as well as custody and parentage cases frequently involve a considerable amount of post-decree litigation when the State is no longer involved. Finally, the proposed amendments state that depositions in delinquency cases, abuse-type actions and other proceedings not covered by other provisions of the rule will be conducted only to preserve testimony in limited circumstances.
Monday, February 05, 2007
Judge Kimbler Decision on Withdrawing Admissions
Below is the text of an journal entry that Judge Kimbler released on February 5, 2006 dealing with withdrawal of admissions made pursuant to Civ. R. 36. It contains a discussion of a recent case from the Ninth District Court of Appeals dealing with the withdrawal of matters deemed admitted under Civ. R. 36.
Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.
After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.
As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.
The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. *** The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.
Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.
After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.
As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.
The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. *** The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.
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