The Ohio Supreme Court has published for comment Amendments to the Ohio Rules of Civil Procedure as proposed by the Commission on the Rules of Practice and Procedure. The proposed amendments track much of the 2006 Federal Rules amendments directed to e-discovery. Comments on the proposed amendments must be submitted to the Court in writing by November 14, 2007. The proposed amendments must be submitted to the Ohio General Assembly by January 15, 2008, at which time they will be republished for comment, and may be further revised prior to May 1, 2008. If not withdrawn by May 1, 2008, they will take effect on July 1, 2008. The proposed amendments include the following:
Rule 16. The Proposed amendment tracks the Federal Rule in adding ESI and privilege as subjects of pretrial conferences. At first glance, the Federal Rule appears broader in scope in that it merely names disclosure or discovery of ESI as a subject, leaving the scope of discussion to the parties and the court. The proposed Ohio Rule appears to limit discussion to “[t]he timing, methods of search and production, and the limitations, if any, to be applied to the discovery of documents and electronically stored information.” Preservation, as one obvious example, would not be a proper topic of discussion under the language of the proposed amendment. Rule 16(12), however, is a catch-all provision that allows discussion of “[o[ther matters which may aid in the disposition of the action.” So, presumably, the scope of discussion is open to any relevant topic, as it should be. The proposed amendment also encourages discussion of agreements on admissibility of documents “to avoid unnecessary testimony or other proof during trial.”
Rule 26(B)(4). The proposed amendment for the most part tracks the Federal Rule relating to information “not reasonably accessible.” The limiting factor on discovery of ESI is undue burden or cost, proof of which results in a finding of “not reasonably accessible.” The finding can be overcome by a showing of good cause. The proposed amendment lists the same four factors found in the Federal Rule. The sole difference lies in the final factor, “whether the burden or expense of the proposed discovery outweighs the likely benefit.” Both rules list the factors to be taken into account in determining this balance. The proposed Ohio Rule substitutes “the relative importance in the case of the issues on which e-discovery is sought” for two federal factors, “the needs of the case” and “the importance of the issues at stake in the litigation.” While “the needs of the case” is broad enough to encompass the additional Ohio factor, the reverse is not true. The factors are intentionally narrower. The proposed Rule also indicates that the court may specify “the format, extent, timing, allocation of expenses and other conditions for the discovery of the electronically stored information.
Rule 26(B)(6). The proposed amendment addresses claims of privilege or work product in the same manner as the Federal Rule. A producing party may notify the receiving party of a claim of privilege on materials already produced. The receiving party must then “promptly return, sequester, or destroy the specified information and any copies” and “take reasonable steps to retrieve” any information already disclosed. The receiving party may promptly present the information to the court under seal for a determination of the claim of privilege or work product, and the producing party must preserve the information until such time as the dispute is resolved.
Rule 33(C). In lieu of answering Interrogatories, the responding party may produce business records, including ESI, from which the answer may be derived.
Rule 34. The proposed Rule adds ESI to the scope of production that may be requested. Unlike the Federal Rule, it does not allow for testing or sampling ESI. Testing and sampling continue to be limited to tangible things. The requesting party may specify the form or forms in which ESI is to be produced. If no form is requested or if the responding party objects to a requested form, the responding party must indicate in its written response the form or forms in which it intends to produce ESI. Production is required only once, but production must be in the form or forms in which the information is ordinarily maintained if that form is reasonably useable or in a form that is reasonably useable. To the extent objections and other differences cannot be resolved by the parties, the Court will resolve them under Rule 37. The Federal Rule expressly refers to the necessity that responsive information may have to be translated by the respondent into reasonably useable form. The proposed Ohio Rule has no corollary. The Proposed Rule also indicates that ESI may be obtained by subpoena from non-parties.
Rule 37(F). The proposed Amendments also include a new Rule 34(F), which is addressed to a safe harbor provision similar to that provided in Rule 37(f) of the Federal Rules. The Proposed Rule goes further than the Federal Rule in listing the factors a court should consider in determining whether to impose sanctions. The factors are the obvious ones: when the obligation to preserve arose; whether the information was lost as a result of the ordinary use of the system in issue; whether the party intervened in a timely fashion to prevent loss of the information; the steps taken to comply with a court order or agreement of the parties to preserve specific information; and any other relevant facts.
Rule 45. The proposed Rule incorporates ESI and indicates that the subpoena may specify production forms, but may not require production of the same information in more than one form. The proposed amendments to Rule 45 include the same limitations found in the proposed amendments to Rules 26 and 34, including an objection to production based upon undue burden or cost, the factors relevant to the determination of good cause upon a showing of undue burden or cost, and the process for asserting privilege or work product after production of documents.