Question 1

The answers to my Ohio interrogatories do not reprint the questions. Does that matter?

Accepted Answer

It is a defect on the face of the response, and Ohio writes the duty in terms. Civ.R. 33(A)(3) provides that the party upon whom the interrogatories have been served shall quote each interrogatory immediately preceding the corresponding answer or objection. Civ.R. 36(A)(1) imposes the same duty on a party answering requests for admission: it shall quote each request for admission immediately preceding the corresponding answer or objection. Neither rule attaches a stated consequence, so a court is not obliged to do anything about the format alone and you should not file on that ground by itself. What the duty is worth is clarity. Where the response complies, every unanswered question is visible in one document, and a motion can set out the question, the answer given and the gap without asking the judge to cross-refer. Where it does not comply, you can ask for a response in the form the rule prescribes as part of the relief, and you have an explanation for why the dispute is hard to read. Civ.R. 33(A)(3) also carries the two other requirements on the same response: each interrogatory shall be answered separately and fully in writing under oath unless objected to, with the reasons for objection stated in lieu of an answer, and the answers are to be signed by the person making them with the objections signed by the attorney making them.

Question 2

How long does a party in Ohio have to answer before I can move under Civ.R. 37(A)?

Accepted Answer

However long your own request said, provided that is at least twenty eight days. This is one of the places Ohio departs from the pattern most states follow. Civ.R. 33(A)(3) provides that the party served shall serve a copy of the answers and objections within a period designated by the party submitting the interrogatories, not less than twenty-eight days after the service of the interrogatories or within such shorter or longer time as the court may allow. Civ.R. 34(B)(1) uses the same formula for a production request, and Civ.R. 36(A)(1) for a request for admission, where the matter is admitted if nothing is served within the designated period. So the operative date is the one on the face of the request you served, and a request that designates no period leaves the twenty eight day floor to do the work. Two practical consequences. Diary the date you designated, not a generic thirty days, because a motion filed before the period has run is premature and Civ.R. 37(A)(5)(a) is mandatory against a losing movant. And note what is missing: there is no Ohio provision in Civ.R. 33, 34 or 36 giving a newly served defendant a longer period measured from service of the summons and complaint. Separately, Civ.R. 33(A)(2), 34(B) and 36(A) control when each device may be served without leave at all, which is after commencement of the action against the plaintiff and after service of the summons and complaint against any other party.

Question 3

I served more than forty interrogatories in my Ohio case. Can I compel answers to all of them?

Accepted Answer

No, and no order will fix it after the fact. Civ.R. 33(A) provides that any party without leave of court may serve up to forty written interrogatories, that a party shall not propound more than forty to any other party without leave, and that for purposes of the rule any subpart propounded under an interrogatory shall be considered a separate interrogatory. Count the subparts before you count the numbered questions, because a single question with four lettered parts has spent four. Civ.R. 33(A)(3) then makes the surplus self-executing: when the number of interrogatories exceeds forty without leave of court, the party upon whom the interrogatories have been served need only answer or object to the first forty interrogatories. So a responding party can simply stop at forty, and that is not an objection you can argue about on the merits. The route is forward rather than back: Civ.R. 33(A) provides that upon motion, and for good cause shown, the court may reduce or extend the number of interrogatories that a party may serve upon another party. Ohio does not cap requests for production or requests for admission by number, and Civ.R. 26(A) provides that unless the court orders otherwise the frequency of use of these methods is not limited, so volume objections to those devices are argued under the Civ.R. 26(B)(1) proportionality factors instead.

Question 4

My Ohio requests for admission were answered evasively. Which motion is that?

Accepted Answer

Not the compel motion, and the relief available is different in a way that may suit you better. Civ.R. 37(A)(3)(a) lists Civ.R. 30, 31, 33 and 34 and does not mention Civ.R. 36, so requests for admission are outside the order compelling discovery. Civ.R. 36(A)(3) is the vehicle: the party who has requested the admissions may move for an order with respect to the answers or objections. The court's options are set out in the same paragraph. Unless it determines that an objection is justified, it shall order that an answer be served. If it determines that an answer does not comply with the requirements of the rule, it may order either that the matter is admitted or that an amended answer be served. In lieu of those orders it may determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The paragraph ends by borrowing the fee rule: the provisions of Civ.R. 37(A)(5) apply to the award of expenses incurred in relation to the motion. Civ.R. 36(A)(2) is worth reading alongside it, because it tells you what a non-complying answer looks like: a denial shall fairly meet the substance of the requested admission, a party qualifying an answer shall specify so much of it as is true and qualify or deny the remainder, and lack of information is not a reason for failing to admit or deny unless the party states that it has made reasonable inquiry and that the information known or readily obtainable is insufficient.

Question 5

Nothing came back at all on my Ohio discovery. Is that the same motion?

Accepted Answer

It depends which device you served, because Ohio splits by device rather than by how bad the answer was. For interrogatories and for production, silence and a bad answer go to the same place: Civ.R. 37(A)(3)(a) covers a party that fails to answer or fails to respond, and Civ.R. 37(A)(4) folds an evasive or incomplete answer into the same division, so there is one motion, one certification and one fee rule. For requests for admission there is nothing to compel, because Civ.R. 36(A)(1) provides that the matter is admitted unless an answer or objection is served within the designated period. Ohio does also have a separate and heavier route for a total failure, and it is worth knowing it exists rather than assuming the compel motion is the only option: Civ.R. 37(D)(1)(a) lets the court order sanctions on motion where a party, after being properly served with interrogatories under Civ.R. 33 or a request for inspection under Civ.R. 34, fails to serve its answers, objections, or written response, or where a party or its officer, director or managing agent fails to appear for a properly noticed deposition. Civ.R. 37(D)(1)(b) requires that motion to carry its own certification. And Civ.R. 37(D)(2) closes an argument off: a failure to appear is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order.

Question 6

Does an Ohio judge have to award my costs if the motion is granted?

Accepted Answer

The verb is shall, and then the rule forbids the award in three cases, so read both halves. Civ.R. 37(A)(5)(a) provides that if the motion is granted, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Ohio then drafts the exceptions as a prohibition on the court rather than as an unless clause: but the court shall not order this payment if the movant filed the motion before attempting in good faith to obtain the discovery without court action, if the opposing party's response or objection was substantially justified, or if other circumstances make an award of expenses unjust. The first of those is the teeth on the certification Civ.R. 37(A)(1) requires. Two more things a reader should weigh before filing. Under Civ.R. 37(A)(5)(b), if the motion is denied the court may issue any protective order authorized under Civ.R. 26(C) and shall require the movant, the attorney filing the motion, or both to pay the opposing party's expenses of opposing it, subject to two exceptions. And Ohio's granted limb opens flatly with if the motion is granted, without the clause some states carry extending the award to a case where the discovery arrives after the motion was filed, so on the text a late capitulation before the ruling sits outside the mandatory award.

Question 7

Do I have to talk to the court before filing a discovery motion in Ohio?

Accepted Answer

Sometimes, and the answer is in your scheduling order rather than in the rules. There is no statewide Ohio requirement to confer with the judge first. What the rules do is empower each court to impose one case by case: Civ.R. 16(B)(3)(e) provides that the scheduling order may direct that before moving for an order relating to discovery, the movant must request a conference with the court. Civ.R. 16(B)(2) tells you when that order should exist, requiring the court to issue it as soon as practicable but, unless it finds good cause for delay, within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has responded. Civ.R. 16(B)(3) also lets the order limit the time to complete discovery and file motions, modify the timing of the Civ.R. 26(B)(3) disclosures, modify the extent of discovery, and provide for disclosure, discovery or preservation of electronically stored information, and Civ.R. 16(B)(4) adds that a schedule may be modified only for good cause and with the court's consent. What the rules do require of the motion itself is narrower: Civ.R. 37(A)(1) says the motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action. Individual courts of common pleas also publish local rules, which vary, so read those alongside your scheduling order.

Question 8

Must I hold the Ohio Civ.R. 26(F) conference before this motion, and what if the other side skipped it?

Accepted Answer

It is an earlier and separate obligation, and skipping it carries its own sanction. Civ.R. 26(F)(1) requires the attorneys and unrepresented parties to confer as soon as practicable, and in any event no later than twenty-one days before a scheduling conference is to be held, other than in cases excepted under Civ.R. 1(C), where the court orders otherwise in a specific case, or in categories of cases excepted by local rule in which little or no pretrial discovery is anticipated. Civ.R. 26(F)(2) sets the agenda: the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case, make or arrange for the disclosures required by Civ.R. 26(B)(3), discuss any issues about preserving discoverable information, and develop a proposed discovery plan. The attorneys of record and all unrepresented parties who have appeared are jointly responsible for arranging the conference, for attempting in good faith to agree on the plan, and for filing a written report outlining it with the court within fourteen days after the conference. Civ.R. 37(C)(2) then provides that where a party fails to participate in that conference or in drafting the plan, the court on motion and after an opportunity to be heard may order payment of the reasonable expenses caused by the failure or impose other appropriate sanctions. That is a different application from a motion to compel and it is aimed at a different failure. Note also that Ohio has mandatory initial disclosures at Civ.R. 26(B)(3), while the specific grounds in Civ.R. 37(A)(3)(a) name only Civ.R. 30, 31, 33 and 34. Attorney review of the papers is available as an option.

Ohio Motion to Compel

Find out where you stand in Ohio

Introduction

Key Things to Know

Key decisions before you file

Customize your Motion to Compel Template with DocDraft

Ohio Requirements for Motion to Compel

The Rule That Matches the Device You Served

The Period Your Own Request Designated, and the Twenty Eight Day Floor

Proof the Request Was Served on a Shareable Medium in an Editable Format

Your Interrogatory Count, With Every Subpart Counted

Whether Each Item Was Quoted Immediately Before Its Answer

The Civ.R. 37(A)(1) Certification, and the Record Behind It

What Your Scheduling Order Says About Discovery Motions

The Expense Request, and the Three Cases in Which It Is Forbidden

Frequently Asked Questions