Discovery Interrogatories from Defendant to Plaintiff with Production Requests
Note: This summary is not intended to be an all inclusive
summary of discovery law in Ohio, but does include basic and other information.
Definitions
Discovery:
A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions, oral
questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories:
Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed
to the Plaintiff, Defendant or the attorney for response in writing.
The answers or responses are usually due between 20-30 days.
Deposition:
A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions
are usually recorded by a court reporter, who swears the person to tell
the truth before questioning begins.
Production of Documents:
The method of obtaining documents from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions:
Written questions where you request the other party to admit or deny some relevant fact.
Objections:
Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules:
Virtually all states have adopted a version of civil procedure rules which include rules dealing with discovery.
Ohio Rules of Civil Procedure
Ohio has adopted the Ohio Rules of Civil Procedure which contain
rules governing discovery. The discovery rules also apply in divorce
actions.
Discovery Methods:
It is the policy of these rules (1) to preserve the right of attorneys to prepare cases for trial with that degree
of privacy necessary to encourage them to prepare their cases thoroughly
and to investigate not only the favorable but the unfavorable aspects of
such cases and (2) to prevent an attorney from taking undue advantage of
his adversary's industry or efforts.
Parties may obtain discovery by one or more of the following methods:
deposition upon oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land or other
property, for inspection and other purposes; physical and mental examinations;
and requests for admission. Unless the court orders otherwise, the frequency
of use of these methods is not limited. Rule 26(a)
Scope:
Unless otherwise ordered by the court in accordance
with these rules, the scope of discovery is as follows:
In General. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party, including
the existence, description, nature, custody, condition and location of
any books, documents, or other tangible things and the identity and location
of persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at the trial
if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence. Rule 26(B)(1)
Experts:
(a) Subject to the provisions of subdivision (B)(4)(b) of this rule and Rule 35(B), a party may discover facts known
or opinions held by an expert retained or specially employed by another
party in anticipation of litigation or preparation for trial only upon
a showing that the party seeking discovery is unable without undue hardship
to obtain facts and opinions on the same subject by other means or upon
a showing of other exceptional circumstances indicating that denial of
discovery would cause manifest injustice.
(b) As an alternative or in addition to obtaining discovery under
subdivision (B)(4)(a) of this rule, a party by means of interrogatories
may require any other party (i) to identify each person whom the other
party expects to call as an expert witness at trial, and (ii) to state
the subject matter on which the expert is expected to testify. Thereafter,
any party may discover from the expert or the other party facts known or
opinions held by the expert which are relevant to the stated subject matter.
Discovery of the expert's opinions and the grounds therefor is restricted
to those previously given to the other party or those to be given on direct
examination at trial.
(c) The court may require that the party seeking discovery under
subdivision (B)(4)(b) of this rule pay the expert a reasonable fee for
time spent in responding to discovery, and, with respect to discovery permitted
under subdivision (B)(4)(a) of this rule, may require a party to pay another
party a fair portion of the fees and expenses incurred by the latter party
in obtaining facts and opinions from the expert. 26(B)(4)
Sequence and timing of discovery:
Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence and
the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery. Rule
26(D)
Supplementation of Responses:
A party who has responded to a request for discovery with a response that was complete when made is
under no duty to supplement his response to include information thereafter
acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response
with respect to any question directly addressed to (a) the identity and
location of persons having knowledge of discoverable matters, and (b) the
identity of each person expected to be called as an expert witness at trial
and the subject matter on which he is expected to testify.
(2) A party who knows or later learns that his response is incorrect
is under a duty seasonably to correct the response.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
requests for supplementation of prior responses.
Rule 26(E)
Depositions
Before Whom Depositions May Be Taken:
Depositions may be taken in this state before a person authorized to administer any oath by
the laws of this state, a person appointed by the court in which the action
is pending, or a person agreed upon by written stipulation of all the parties.
Depositions may be taken outside this state before a person authorized
to administer oaths in the place where the deposition is taken, a person
appointed by the court in which the action is pending, a person agreed
upon by written stipulation of all the parties, or, in any foreign country,
by any consular officer of the United States within his consular district.
Rule 28
Stipulations:
Unless the court orders otherwise, the parties
may by written stipulation (1) provide that depositions may be taken before
any person, at any time or place, upon any notice, and in any manner and
when so taken may be used like other depositions; and (2) modify the procedures
provided by these rules for other methods of discovery.
Rule 29
Depositions upon oral examination
(A) After commencement of the action, any party may take the testimony
of any person, including a party, by deposition upon oral examination.
The attendance of a witness deponent may be compelled by the use of subpoena
as provided by Civ. R. 45. The attendance of a party deponent may be compelled
by the use of notice of examination as provided by division (B) of this
rule. The deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes. Rule 30(A)
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known,
and, if the name is not known, a general description sufficient to identify
the person or the particular class or group to which the person belongs.
If a subpoena duces tecum is to be served on the person to be examined,
a designation of the materials to be produced shall be attached to or included
in the notice.
(2) If any party shows that when the party was served with notice
the party was unable, through the exercise of diligence, to obtain counsel
to represent the party at the taking of the deposition, the deposition
may not be used against the party.
(3) If a party taking a deposition wishes to have the testimony
recorded by other than stenographic means, the notice shall specify the
manner of recording, preserving, and filing the deposition. The court may
require stenographic taking or make any other order to ensure that the
recorded testimony will be accurate and trustworthy.
(4) The notice to a party deponent may be accompanied by a request
made in compliance with Civ. R. 34 for the production of documents and
tangible things at the taking of the deposition.
(5) A party, in the party's notice, may name as the deponent a public
or private corporation, a partnership, or an association and designate
with reasonable particularity the matters on which examination is requested.
The organization so named shall choose one or more of its proper employees,
officers, agents, or other persons duly authorized to testify on its behalf.
The persons so designated shall testify as to matters known or available
to the organization. Division (B)(5) does not preclude taking a deposition
by any other procedure authorized in these rules.
(6) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone. For purposes of this rule,
Civ. R. 28, and Civ. R. 45(C), a deposition taken by telephone is taken
in the county and at the place where the deponent is to answer questions
propounded to the deponent. Rule 30(B)
Interrogatories
Any party, without leave of court, may serve upon any other party
up to forty written interrogatories to be answered by the party served.
A party shall not propound more than forty interrogatories to any other
party without leave of court. Upon motion, and for good cause shown, the
court may extend the number of interrogatories that a party may serve upon
another party. For purposes of this rule, any subpart propounded under
an interrogatory shall be considered a separate interrogatory.
If the party served is a public or private corporation or a partnership
or association, the organization shall choose one or more of its proper
employees, officers, or agents to answer the interrogatories, and the employee,
officer, or agent shall furnish information as is known or available to
the organization.
Interrogatories, without leave of court, may be served upon the
plaintiff after commencement of the action and upon any other party with
or after service of the summons and complaint upon the party.
Each interrogatory shall be answered separately and fully in writing
under oath, unless it is objected to, in which event the reasons for objection
shall be stated in lieu of an answer. 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.
The answers are to be signed by the person making them, and the objections
signed by the attorney making them. The party upon whom the interrogatories
have been 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. The party submitting
the interrogatories may move for an order under Civ.R. 37 with respect
to any objection to or other failure to answer an interrogatory. Rule 33(A)
Interrogatories may relate to any matters that can be inquired into
under Civ.R. 26(B), and the answers may be used to the extent permitted
by the rules of evidence.
The party calling for such examination shall not thereby be concluded
but may rebut it by evidence.
An interrogatory otherwise proper is not objectionable merely because
an answer to the interrogatory involves an opinion, contention, or legal
conclusion, but the court may order that such an interrogatory be answered
at a later time, or after designated discovery has been completed, or at
a pretrial conference. Rule 33(B)
The party submitting interrogatories shall arrange them so that
there is sufficient space after each interrogatory in which to type the
answer or objections to that interrogatory. The minimum vertical space
between interrogatories shall be one inch. Rule 33(D)
Production
Subject to the scope of discovery provisions of Civ. R. 26(B), any party may serve on any other party a request to produce and
permit the party making the request, or someone acting on the requesting
party's behalf (1) to inspect and copy any designated documents (including
writings, drawings, graphs, charts, photographs, phonorecords, and other
data compilations from which intelligence can be perceived, with or without
the use of detection devices) that are in the possession, custody, or control
of the party upon whom the request is served; (2) to inspect and copy,
test, or sample any tangible things that are in the possession, custody,
or control of the party upon whom the request is served; (3) to enter upon
designated land or other property in the possession or control of the party
upon whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property or any designated
object or operation on the property. Rule 34(A)
Without leave of court, the request may be served upon the plaintiff
after commencement of the action and upon any other party with or after
service of the summons and complaint upon that party. The request shall
set forth the items to be inspected either by individual item or by category
and describe each item and category with reasonable particularity. The
request shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts.
The party upon whom the request is served shall serve a written
response within a period designated in the request that is not less than
twenty-eight days after the service of the request or within a shorter
or longer time as the court may allow. With respect to each item or category,
the response shall state that inspection and related activities will be
permitted as requested, unless it is objected to, in which event the reasons
for objection shall be stated. If objection is made to part of an item
or category, the part shall be specified. The party submitting the request
may move for an order under Civ. R. 37 with respect to any objection to
or other failure to respond to the request or any part of the request,
or any failure to permit inspection as requested.
A party who produces documents for inspection shall, at its option,
produce them as they are kept in the usual course of business or organized
and labeled to correspond with the categories in the request.
Rule 34(B)
Physical and Mental Examinations of Persons
When the mental or physical condition (including the blood group)
of a party, or of a person in the custody or under the legal control of
a party, is in controversy, the court in which the action is pending may
order the party to submit himself to a physical or mental examination or
to produce for such examination the person in the party's custody or legal
control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall specify
the time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
Rule 35(A)
(1) If requested by the party against whom an order is made under Rule
35(A) or the person examined, the party causing the examination to be made
shall deliver to such party or person a copy of the detailed written report
submitted by the examiner to the party causing the examination to be made.
The report shall set out the examiner's findings, including results of
all tests made, diagnoses and conclusions, together with like reports of
all earlier examinations of the same condition. After delivery, the party
causing the examination shall be entitled upon request to receive from
the party against whom the order is made a like report of any examination,
previously or, thereafter made, of the same condition, unless, in the case
of a report of examination of a person not a party, the party shows that
he is unable to obtain it. The court on motion may make an order against
a party to require delivery of a report on such terms as are just. If an
examiner fails or refuses to make a report, the court on motion may order,
at the expense of the party causing the examination, the taking of the
deposition of the examiner if his testimony is to be offered at trial.
(2) By requesting and obtaining a report of the examination so ordered
or by taking the deposition of the examiner, the party examined waives
any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined
or may thereafter examine him in respect of the same mental or physical
condition.
(3) This subdivision, 35(B), applies to examinations made by agreement
of the parties, unless the agreement expressly provides otherwise.
Rule 35(B)
Requests for Admissions
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Rule 26(B) set forth in the request, that relate
to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request. Copies
of documents shall be served with the request unless they have been or
are otherwise furnished or made available for inspection and copying. The
request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service
of the summons and complaint upon that party.
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within a period designated in
the request, not less than twenty-eight days after service thereof or within
such shorter or longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed by the party or by
his attorney. If objection is made, the reasons therefor shall be stated.
The answer shall specifically deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or deny the matter.
A denial shall fairly meet the substance of the requested admission, and
when good faith requires that a party qualify his answer, or deny only
a part of the matter of which an admission is requested, he shall specify
so much of it as is true and qualify or deny the remainder. An answering
party may not give lack of information or knowledge as a reason for failure
to admit or deny unless he states that he has made reasonable inquiry and
that the information known or readily obtainable by him is insufficient
to enable him to admit or deny. A party who considers that a matter of
which an admission has been requested presents a genuine issue for trial
may not, on that ground alone, object to the request; he may, subject to
the provisions of Rule 37(C), deny the matter or set forth reasons why
he cannot admit or deny it.
The party who has requested the admissions may move for an order
with respect to the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the requirements
of this rule, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders, determine
that final disposition of the request be made at a pretrial conference
or at a designated time prior to trial. The provisions of Rule 37(A)(4)
apply to the award of expenses incurred in relation to the motion. Rule
36
Compel Discovery
A) Motion for order compelling discovery. Upon reasonable notice
to other parties and all persons affected thereby, a party may move for
an order compelling discovery as follows:
(1) Appropriate court. A motion for an order to a party or a deponent
shall be made to the court in which the action is pending.
(2) Motion. If a deponent fails to answer a question propounded
or submitted under Rule 30 or Rule 31, or a party fails to answer an interrogatory
submitted under Rule 33, or if a party, in response to a request for inspection
submitted under Rule 34 fails to respond that inspection will be permitted
as requested or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer or an order compelling
inspection in accordance with the request. On matters relating to a deposition
on oral examination, the proponent of the question may complete or adjourn
the examination before he applies for an order.
(3) Evasive or incomplete answer. For purposes of this subdivision
an evasive or incomplete answer is a failure to answer. Rule 37
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
