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Tuesday, May 13, 2008

Ohio Supreme Court Prepares to Adopt Electronic Discovery Rules

By Dino Tsibouris & Mehmet Munur

The Ohio Supreme Court is finalizing Proposed Amendments to the Rules of Civil Procedure that include amendments related to electronic discovery. The comment period for the proposed amendments ended on March 4, 2008. The commission responsible for the rules had until May 1st to review and make changes to the proposed amendments. They have not. Therefore, the proposed amendments should take effect on July 1, 2008—unless the General Assembly adopts a concurrent resolution of disapproval. Though the Ohio Rules are very similar to the Federal Rules, the Ohio Rules differ to accommodate the differences in practical application.

Under proposed Ohio Rule 26, a judge may schedule a pretrial conference related to electronically stored information, while such a pretrial conference is required under the Federal Rules. Also, proposed Rule 26 clarifies the scope of discovery to include electronically stored information and limits it to cases where the information is reasonably accessible and its production not unduly burdensome or expensive. Proposed Rule 37 provides factors that are not provided in the Federal Rules that a judge should consider in determining sanctions as a result of routine, good faith operation of an electronic information system. Some of these factors are 1) whether and when the obligation to preserve the information is triggered, 2) whether the party intervened in a timely fashion to prevent the loss of information, and 3) whether the party took steps to comply with any court pr party agreement requiring the preservation of specific information.

You may find the proposed amendments here.

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