You know something bad happened to you, but you may not know who caused it, or other facts and circumstances associated with your claim. Further, because of private records or uncooperative parties, video of the incident or documents not only advancing your claim, but showing the responsible parties, are not available to you.
There is a powerful solution to this problem, using Ohio Courts’ discovery powers!
Ohio law provides methods in which a party can conduct discovery prior to filing a Complaint to initiate a cause of action.
ORC §2317.48 provides,
When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civil Rule 12, the complaint shall be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs of the action shall be taxed in the manner the court deems equitable.
This statute authorizes the use of pre-suit interrogatories for the limited purpose of discovering facts necessary to file a subsequent complaint. TILR Corp. v. TalentNow, LLC, 2023-Ohio-1345, ¶ 1 (1st App. Dist.). An interrogatory is a simple question in writing relating to a particular subject that may be answered by a brief, categorical statement. Its form and purpose correspond to that of a single question at trial. Penn Central Transp. Co. v. Armco Steel Corp., 27 Ohio Misc. 76, 56 Ohio Op. 2d 295, 271 N.E.2d 877, 1971 Ohio Misc. LEXIS 233 (CP 1971) def Hudson v. United Servs. Auto. Ass’n Ins. Co., 150 Ohio Misc. 2d 23, 2008 Ohio 7084, 902 N.E.2d 101, 2008 Ohio Misc. LEXIS 303 (Ohio C.P. Oct. 21, 2008).
Thus, ORC §2317.48 is specifically limited to discovery conducted by way of interrogatories and not applicable to the production of any documents. Riverview Health Inst., LLC v. Kral, 2012-Ohio-3502, 2012 Ohio App. LEXIS 3082 (Ohio Ct. App., Montgomery County 2012).
It is available to obtain facts required for pleading, not to obtain evidence for purposes of proof. Further, the statute requires more than a mere possibility of a cause of action. Marsalis v. Wilson, 2002-Ohio-5534, 149 Ohio App. 3d 637, 778 N.E.2d 612, 2002 Ohio App. LEXIS 5542 (Ohio Ct. App., Champaign County 2002).
Ohio Civ. R. 34(D) further provides a method for a party to obtain specific documents from another party, providing, in part:
(D) Prior to filing of action.
(1) Subject to the scope of discovery provisions of Civ.R. 26(B) and 45(F), a person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall make reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.
The petition must provide a statement of the subject matter of the potential cause of action and the party’s interest in it, a statement of the efforts made by the party to obtain voluntarily the information from the person from whom the discovery is sought, a description of the information sought to be discovered and the names and addresses of any person the party expects will be an adverse party in the potential action. Oh. Civ. R. 34(D)(1).
Under Civ. R. 34(D)(3), the Court will authorize the party to obtain the requested discovery if the court finds the discovery is necessary to ascertain the identity of a potential adverse party, the petitioner is otherwise unable to bring the contemplated action and the party made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought. Thus, pre-suit document requests must assist in the identification of a potential adverse party. Civ.R. 34(D)(3)(a). TILR Corp. v. TalentNow, LLC, 2023-Ohio-1345, ¶ 1 (1st App. Dist.). Civ.R. 34(D) is designed to avoid needlessly joining as defendants non-liable parties who may have valuable information. Id.
Thus, prior to filing a Complaint, Ohio law provides avenues for parties to submit interrogatories for the limited purpose of discovering facts necessary to file a subsequent complaint and request documents if necessary to ascertain the identity of a potential adverse party.
To advance pre-suit discovery for your Ohio claim, please contact Julie Gugino (513.943.5669).
