Managing a Successful Law Office: Discovery

Discovery, including electronic discovery, issues are appropriate topics for resolution during pretrial conferences.

Discovery, including electronic discovery is permitted but a party is not required to produce e-discovery if the production is too burdensome or costly as is the case with traditional discovery. The four criteria for analyzing claims of undue burden mirror criteria in Federal Rule 26(b)(c).

Depositions upon Oral Examination

Depositions of Witnesses upon Written Questions

Interrogatories

Requests for production of document. This rule allows a party requesting e-discovery to specify the format(s) in which it should be produced and requires the responding party to articulate any objections to the requested format(s). If objecting, the responding party must state the format(s) it intends to use for production.

Requests for Admissions

Sanctions for failing to respond to discovery requests. Unlike the Federal Rule 37, Ohio’s Rule 37 provides factors a judge should consider in determining whether to sanction a party that has destroyed potentially relevant e-discovery. The factors are:
1. Whether and when any obligation to preserve information was triggered;
2. Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue;
3. Whether the party intervened in a timely fashion to prevent the loss of information;
4. Any steps taken to comply with any court order or party agreement requiring preservation of specific information;
5. Any other factors relevant to its determination under this division.

A subpoena may be used to obtain discovery, including e-discovery from nonparties.

AALL Spectrum Article Sept. 2021 by law librarian, Meredith Capps