Chapter 3746-6 Discovery

3746-6-01 Discovery.

(A) Scope of discovery:

(1) The purpose of this rule is to encourage the prompt and expeditious use of prehearing discovery to facilitate thorough and adequate preparation for participation in appeals before the commission.

(2) Except as otherwise provided in this chapter, any party to an appeal may discover any matter, not privileged, which is relevant to the subject matter of the appeal. It is not grounds for objection that the information sought would be inadmissible at the hearing, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may be obtained through one or more of the following methods: interrogatories, requests for the production of documents, electronically stored information or things ; depositions; and requests for admission. A party need not provide discovery of electronically stored information when the production imposes undue burden or expense. On motion to compel discovery or for protective order, the party from whom electronically stored information is sought must show the information is not reasonably accessible because of undue burden or expense. If a showing of undue burden or expense is made, the commission may nonetheless order production of electronically stored information if the requesting party shows good cause. The frequency of using these discovery methods is not limited unless the commission orders otherwise under rule 3746-6-07 of the Administrative Code.

(3) Any party may require any other party to identify each expert witness expected to testify at the hearing and to state the subject matter on which the expert is expected to testify. Thereafter, any party may discover from the expert, or other party, facts or data known or opinions held by the expert which are relevant to the stated subject matter.

(4) All parties have an obligation to supplement or correct discovery responses in the following circumstances:

(a) Any question directly addressed to the identity and location of persons having knowledge of discoverable matters, and the identity of each person expected to be called as an expert witness at the de novo hearing and the subject matter on which the expert is expected to testify.

(b) It becomes apparent that a response was incorrect when given; or

(c) An order of the commission or agreement of the parties provides for the supplementation of responses.

(B) The commission may order the parties to submit a case management schedule establishing discovery deadlines.

(C) Discovery requests shall be served upon the party from whom discovery is sought. Responses to discovery requests shall not be filed with the commission, unless the party intends to offer such discovery documents as evidence in a hearing. If relief is sought by a party concerning discovery requests, that party shall file with the commission copies of the portions of the documents which are in dispute contemporaneously with any motion filed under rule 3746-06-07 of the Adminstrative Code or rule 3746-06-08 of the Administrative Code. .

(D) Nothing in this rule precludes parties from conducting discovery by mutually agreeable methods or by stipulation.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 4/28/00, 7/29/05

3746-6-02 Depositions.

(A) At any time after the filing of an appeal and subject to such discovery deadlines as the commission may order, any party may take the deposition of any other party or person upon oral examination with respect to any matter within the scope of discovery set forth in rule 3746-6-01 of the Administrative Code. The attendance of witnesses and production of documents may be compelled by subpoena as provided in rule 3746-6-06 of the Administrative Code.

(B) Any party desiring to take the deposition of any person upon oral examination shall serve notice in writing to the deponent and all parties. The notice shall state the time and place for the taking of the deposition and the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient for identification. If a subpoena duces tecum is to be served upon the person to be examined, a designation of the materials to be produced thereunder shall be attached to, or included in, the notice.

(C) Upon a failure of agreement as to the time and place for the taking of a deposition, an appropriate order of the commission may be obtained by the party seeking to take the deposition.

(D) If any party demonstrates he was unable with the exercise of due diligence to obtain counsel to represent him or her at the taking of a deposition, the deposition may not be used against such party.

(E) Depositions shall be recorded stenographically unless otherwise agreed to by the parties or ordered by the commission.

(F) Depositions may be taken before any person authorized to administer oaths under the laws of the jurisdiction in which the deposition is taken, or before any person appointed by the commission. Unless all of the parties expressly agree otherwise, no deposition shall be taken before any person who is a relative, employee, or attorney of any party, or a relative or employee of such attorney.

(G) The officer before whom the deposition is to be taken shall put the witness under oath or affirmation, and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. Examination and cross-examination may proceed as permitted in commission hearings.

(H) All objections made at the time of the examination shall be noted upon the deposition by the officer. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope upon the party taking the deposition, who shall transmit them to the officer, who in turn shall propound them to the witness and record the answers verbatim.

(I) At any time during the taking of a deposition, the commission may, upon motion of any party or the deponent and upon a showing that the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent or party, order the person conducting the examination to cease taking the deposition, or limit the scope and manner of the taking of the deposition as provided in rule 3746-6-07 of the Administrative Code. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for such an order.

(J) When the testimony is fully transcribed, the deposition shall be submitted and read by the deponent, unless examination and reading are waived by the deponent and by the parties. Any changes in form or substance that the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making the changes. The deposition shall then be signed by the deponent, unless the signing is expressly waived by the parties or the deponent is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent within thirty days after its submission, the officer shall sign it and explain the reason for the lack of signature for the record. The deposition may then be used as fully as though signed, unless on a motion to suppress, the commission holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(K) The officer shall certify on the deposition that the deponent was duly sworn and that the deposition is a true record of the statement given by the deponent.

(L) Documents and things produced for inspection during the examination of the deponent shall, upon request of any party, be marked for identification and annexed to the deposition, except that:

(1) The person producing the materials may substitute copies to be marked for identification, if all parties are afforded a fair opportunity to verify that the copies are identical to the originals; and

(2) If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them. The materials may then be used in the same manner as if annexed to the deposition.

(M) Depositions may be used in commission hearings to the extent permitted in civil actions in courts of record. Unless otherwise ordered for good cause shown, any depositions to be used as evidence must be filed with the commission at least one day prior to the commencement of the hearing.

(N) The notice to a party deponent may be accompanied by a request made pursuant to rule 3746-6-04 of the Administrative Code for the production of documents or tangible things at the taking of the deposition.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 10/23/1973, 4/28/2000, 7/29/2005

3746-6-03 Interrogatories.

(A) Subject to the scope of discovery set forth in rule 3746-6-01 of the Administrative Code, and such discovery deadlines as the commission may order, any party may serve upon any other partyup to forty written interrogatories, to be answered by the party served. A party serving interrogatories shall provide the party served with both a printed and an electronic copy of the interrogatories. The electronic copy shall be useable for word processing and provided on a computer disk, by electronic email, or by means agreed to by the parties. A party who is unable to provide an electronic copy of the interrogatories may seek leave of the commission to be relieved of this requirement. A party shall not propound more than forty interrogatories to any other party without leave of the commission. Upon motion, and for good cause shown, the commission 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 seperate interrogatory. If the party served is a corporation, partnership, association, government agency, or political subdivision, it shall designate one or more of its officers, agents, or employees to answer the interrogatories, who shall furnish such information as is known or is available to the party. Each interrogatory shall be answered separately and fully, in writing and under oath, unless it is objected to, in which case the reason for the objection shall be stated in lieu of an answer. The answers shall be signed by the person making them, and the objections shall be signed by the attorney or other person making them. The party upon whom the interrogatories have been served shall serve a copy of the answers or objections upon the party submitting the interrogatories within twenty-eight days after the service thereof, or within such shorter or longer time as the commission may order. The party submitting the interrogatories may move for an order under rule 3746-6-08 of the Administrative Code with respect to any objection or other failure to answer an interrogatory.

(B) Subject to the scope of discovery set forth in rule 3746-6-01 of the Administrative Code, interrogatories may elicit facts, data, or other information known or readily available to the party upon whom the interrogatories are served.

(C) Where the answer to an interrogatory may be derived or ascertained from public documents on file in this state, from documents previously furnished to the party submitting the interrogatory, or from the business records, including electronically stored information, of the party upon whom the interrogatory has been served, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and, if the documents have not already been produced, afford the party submitting the interrogatory a reasonable opportunity to examine, audit, or inspect such records.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 4/28/00

3746-6-04 Production and inspection of documents.

(A) Subject to the scope of discovery set forth in rule 3746-6-01 of the Administrative Code and such discovery deadlines as the commission may order, any party may serve upon any other party a written request to:

(1) Produce or permit the inspection of, and/or copy any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained that are in the possession, custody, or control of the party upon whom the request is served;

(2) Produce for inspection, copying, sampling, or testing any tangible things in the possession, control, or custody of the party upon whom the request is served.

(B) Without leave of the commission, the request may be served within the timeframe set forth in the case management schedule. Any request pursuant to this rule shall set forth the items to be produced or inspected either by individual item or by category and shall describe each category with reasonable particularity. The request may specify the form or forms in which electronically stored information is to be produced, but may not require the production of the same information in more than one form.

(C) The party upon whom the request is served shall serve a written response within twenty-eight days after the service of the request, or within such shorter or longer time as the commission may order. The response shall state, with respect to each item or category, that the production or inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reason for the objection shall be stated. If an objection is made to part of an item or category, that part shall be specified. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under rule 3746-6-08 of the Administrative Code with respect to any objection or other failure to respond to a request or any part thereof, or any failure to permit inspection as requested.

(D) At the request of any party, the commission may examine in camera the documents sought for the purpose of determining which documents or portions thereof are not available for discovery.

(E) Where a request calls for the production of a document previously furnished to the party submitting the request, it is a sufficient response to specify the circumstances under which the document was previously furnished to the party submitting the request.

(F) The commission may order the production of documents on its own motion.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 4/28/00

3746-6-05 Requests for admission.

(A) Any party may serve upon any other party a written request for the admission of the truth of any specific matter within the scope of discovery set forth in rule 3746-6-01 of the Administrative Code and subject to such discovery deadlines as the commission may order, including the genuineness of any documents described in the request. Copies of any such documents shall be served with the request unless they have previously been furnished for inspection or copying.A party serving a request for admission shall provide the party served with both a printed and an electronic copy of the request for admission. The electronic copy shall be reasonably useable for word processing and provided by means agreed to by the parties. A party who is unable to provide an electronic copy of a request for admission may seek leave of the commission to be relieved of this requirement.

(B) Each matter for which an admission is requested shall be separately set forth. The matter is admitted unless, within twenty-eight days after the service of the request, or within such shorter or longer time as the commission may order, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection, signed by the party or by his attorney. If an objection is made, the reasons therefore shall be stated. The answer shall specifically admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully make an admission or denial.

(C) Any party who has requested an admission may move for an order pursuant to rule 3746-6-08 of the Administrative Code with respect to any answer or objection. Unless it appears that an objection is justified, the commission shall order that an answer be served.

(D) Unless otherwise ordered by the commission, any matter admitted under this rule is conclusively established against the party making the admission, but such admission may be rebutted by evidence offered by any other party. An admission under this rule is an admission for the purposes of the pending proceeding only and may not be used for any other purpose.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 4/28/2000, 7/29/2005

3746-6-06 Discovery subpoenas.

(A) Issuance; form; notice (1) Upon written request of any party, the commission may issue a subpoena for a witness to attend and give testimony at a deposition or a subpoena duces tecum to produce and permit inspection of documents, electronically stored information, or tangible things at a deposition. The executive director shall issue a subpoena, signed for the commission but otherwise in blank, to the requesting party, who shall fill it in before service. An attorney who has filed an appearance on behalf of a party in an action may also sign and issue a subpoena on behalf of the commission.

(2) The request for subpoena shall be filed with the commission at least fourteen days prior to the date specified in the subpoena.

(3) Every subpoena issued by the commission shall state the name of the commission, title of the action, case number, and shall command each person to whom it is directed to attend and give testimony or produce documents or electronically stored information at a time and place specified in the subpoena.

(4) A command to produce and permit inspection of documents, electronically stored information, or tangible things may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced but may not require the production of the same information in more than one form.

(5) A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party's attendance at a deposition may be obtained only by notice under rule 3746-6-02 of the Administrative Code and documents or electronically stored information may be obtained from a party in discovery only pursuant to rule 3746-6-04 of the Administrative Code.

(6) A party on whose behalf a subpoena is issued under paragraph (A)(1) of this rule shall serve prompt written notice, including a copy of the subpoena, on all other parties.

(B) Service

(1) A subpoena shall be served and returned in the same manner as allowed by the court of common pleas in criminal cases.

(2) The fees and mileage shall be the same as those allowed by the court of common pleas in criminal cases. The fee and mileage expenses of the witness being subpoenaed shall be paid in advance by the party requesting the subpoena.

(C) Contempt citations

In the case of disobedience or neglect of any subpoena served on any person, or the refusal of any witness to testify to any matter that the witness may be lawfully interrogated, the court of common pleas of the county in which the disobedience, neglect, or refusal occurs, or any judge thereof, on application of the commission, may compel obedience by finding the person to whom the subpoena is directed in contempt.

Replaces: 3746-6-06

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 1/2/1973, 8/24/1973, 10/23/1973, 4/28/2000, 7/29/2005

3746-6-07 Protective orders.

(A) Upon motion of any party or person from whom discovery is sought and for good cause shown, the commission may issue any order which is necessary to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Such a protective order may provide that:

(1) Discovery may not be had;

(2) Discovery may be had only on specified terms and conditions;

(3) Discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) The scope of discovery be limited or prohibited, regarding certain matters;

(5) Discovery be conducted with no one present except persons designated by the commission;

(6) A trade secret or other confidential research, development, commercial, or other information not be disclosed or be disclosed only in a designated way; or

(7) Information acquired through discovery be used only for purposes of the pending proceeding, or that such information be disclosed only to designated persons or classes of persons.

(B) A motion for a protective order shall be accompanied by:

(1) A memorandum in support, setting forth the specific basis of the motion and citations to any authorities relied upon;

(2) Copies of any specific discovery request that are the subject of the request for a protective order; and

(3) An affidavit of counsel, or of the person seeking a protective order if such person is not represented by counsel, setting forth the efforts that have been made to resolve any differences with the party seeking discovery.

(C) If a request for a protective order is denied in whole or in part, the commission may require the party or person seeking the order to provide or permit discovery on such terms and conditions as are just.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 4/28/2000, 7/29/2005

3746-6-08 Motions to compel discovery.

(A) Any party, upon reasonable notice to all other parties and any persons affected thereby, may move for an order compelling discovery, with respect to any failure of a party to comply with a discovery request pursuant to this chapter.

(B) No motion to compel discovery shall be filed under this rule until the party seeking discovery has exhausted all other reasonable means of resolving any differences with the party or person from whom discovery is sought. A motion to compel discovery shall be accompanied by:

(1) A memorandum in support, setting forth:

(a) The specific basis of the motion, with copies of any statutes, ordinances, or case law relied upon;

(b) A brief explanation of how the information sought is relevant to the pending proceeding; and

(c) Responses to any objections raised by the party or person from whom discovery is sought.

(2) Copies of any specific discovery requests which are the subject of the motion to compel, and copies of any responses or objections thereto; and

(3) An affidavit of counsel, or of the party seeking to compel discovery if such party is not represented by counsel, setting forth the efforts that have been made to resolve any differences with the party or person from whom discovery is sought.

(C) The commission may grant or deny the motion in whole or in part. If the motion is denied in whole or in part, the commission may issue such protective order as would be appropriate under rule 3746-6-07 of the Administrative Code.

(D) If a party fails to comply with the discovery requirements set forth in this chapter, the commission may:

(1) Order that the matter at issue be admitted for purposes of the pending proceeding;

(2) Order that an amended answer be served; or

(3) Determine that final disposition of the matter should be deferred until a prehearing conference is held or some other designated time prior to the commencement of the hearing.

(E) Absent exceptional circumstances, the commission will not consider that a party failed to comply with discovery requirements for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 8/24/1973, 4/28/2000, 7/29/2005

3746-6-09 Motions.

(A) Unless another form is prescribed by these rules, a motion shall be made with proof of service on all other parties. The motion shall state with particularity the grounds on which it is based and shall set forth the relief sought. If a motion is supported by briefs or other documents, they shall be served and filed with the motion. Any party may file a response in opposition to a motion within fourteen days after service of the motion. Any reply memorandum shall be filed and served within ten days after service of the response in opposition. The commission may adjust the time for responding to any motion.

(B) Motions not importing finality may be acted upon by the commission at any time, without awaiting a response thereto. Any party adversely affected by such action may move for reconsideration, vacation, or modification of such action.

(C) Upon its own motion or motion of any party, the commission may allow oral argument if, in its opinion, oral argument will clarify the issues and will not unnecessarily delay the proceedings.

(D) If a motion for oral argument is granted, the procedure set forth in rule 3746-7-09 of the Administrative Code shall be followed.

(E) An original and four copies of all papers relating to motions, not including those served on parties, shall be filed with the commission. The commission may require that additional copies be furnished.

Effective: 08/15/2011
R.C. 119.032 review dates: 05/24/2011 and 05/24/2016
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.07
Prior Effective Dates: 8/24/1973, 4/28/2000, 7/29/2005