Discovery Deficiency Meet-and-Confer Letter - Ohio

DISCOVERY DEFICIENCY MEET-AND-CONFER LETTER

Ohio Civ.R. 26, 33, 34, 36, and 37 Review Form

1. Matter and Authority Record

Confirm whether Civ.R. 26(F) applies to this case, whether its conference and
report occurred, and whether an order changes the statewide rules. Do not
describe historical rule amendments as current operative obligations.

2. Request and Response Audit

Complete one row for each discovery set before drafting the letter.

Civ.R. 33(A)(3), 34(B)(1), and 36(A)(1) use a period designated in the
request that is not less than 28 days, unless the court allows a different
period. Do not call 28 days an automatic deadline. Check service, Civ.R. 6,
stipulations, and orders before alleging lateness.

For interrogatories, record the count of every question and subpart. Civ.R.
33(A) allows up to 40 without leave, makes each subpart a separate
interrogatory, permits the court to reduce or extend the number for good cause,
and states how a recipient may respond when more than 40 are served without
leave.

3. Deficiency Record

Use the response's actual words. Separate a disagreement on the merits from a
missing, evasive, or incomplete response.

Interrogatory checks

☐ Request was properly served on a party eligible under Civ.R. 33(A)(2)

☐ Count, including all subparts and prior sets to that party, was checked

☐ Response quotes each interrogatory before its answer or objection

☐ Each non-objected interrogatory is answered separately and fully in writing
under oath; answers and objections carry the signatures Civ.R. 33(A)(3)
assigns

☐ A Civ.R. 33(C) business-record response identifies qualifying records and
provides the required reasonable examination, audit, inspection, and copying
opportunity

Production checks

☐ Request describes items with reasonable particularity and specifies a
reasonable time, place, and manner

☐ Response states whether inspection will be permitted and identifies the part
and reasons for each objection under Civ.R. 34(B)(1)

☐ ESI-format position is tied to the request, response, agreement, or order

☐ If no ESI form was requested, the production is assessed under Civ.R.
34(B)(3), including its reasonably-usable and no-duplicate-form rules

Do not demand native files, searchable PDFs, metadata, or Bates labels as
categorical statewide requirements. Identify the request, agreement, order, or
case-specific need supporting the proposed format.

Admission checks

☐ Each matter was separately stated and the document's caption complied with
Civ.R. 36(C)

☐ Response quotes each request and then admits, denies, qualifies, explains
inability after reasonable inquiry, or states a supported objection

☐ Any claimed admission is tied to the period actually designated under
Civ.R. 36(A)(1), service, and any court-authorized change

☐ Proposed relief accounts for Civ.R. 36(A)(3) and the court's available
choices; the letter does not itself adjudicate the response or objection

Privilege and protection checks

☐ The withholding claim was made expressly

☐ The description is sufficient to permit the claim to be contested without
revealing the assertedly protected information

☐ Any proposed log fields are a proportionate way to supply that description,
not an invented fixed-field mandate

☐ Produced privileged information is handled through Civ.R. 26(B)(8)(b)
rather than used or disclosed while the claim is unresolved

Scope, burden, and protection checks

For each disputed item, address Civ.R. 26(B)(1)'s relevance and proportionality
factors, Civ.R. 26(B)(5)-(6)'s ESI-accessibility and frequency/extent limits,
and any Civ.R. 26(C) protective-order issue. A protective-order motion requires
the separate reasonable-resolution effort and accompanying statement specified
in Civ.R. 26(C).

4. Draft Letter

[SENDER LETTERHEAD]

Date: [DATE]

Via: [METHOD APPROVED FOR THIS COMMUNICATION]

[RECIPIENT NAME AND ADDRESS]

Re: [CAPTION, COURT, AND CASE NUMBER] — discovery conference request

Dear [COUNSEL OR UNREPRESENTED PARTY]:

We write concerning [DISCOVERY SET], served on [DATE], and the answers,
objections, or production served on [DATE]. The request designated
[PERIOD] for response, producing a calculated date of [DATE], subject
to [SERVICE RULE / EXTENSION / ORDER].

After comparing the requests and responses with [CIVIL RULE, LOCAL RULE,
ORDER, DISCOVERY PLAN, OR AGREEMENT], we ask to confer in good faith about
the items listed below. This letter states our current position; it does not
assume the court has resolved a disputed objection, privilege claim, response
period, production format, or remedy.

Item [____]

Request and response: [QUOTE OR ACCURATELY SUMMARIZE BOTH]

Issue: [IDENTIFY THE SPECIFIC OMISSION, EVASION, INCOMPLETENESS, FORMAT
DISPUTE, PRIVILEGE DESCRIPTION, OR OTHER DISAGREEMENT]

Authority and proportionality: [IDENTIFY CURRENT RULE/ORDER AND EXPLAIN
RELEVANCE, NEED, ACCESS, RESOURCES, BURDEN, AND LIKELY BENEFIT AS APPLICABLE]

Proposed resolution: [NARROWING / CLARIFICATION / SUPPLEMENT / SEARCH
PROCESS / CUSTODIANS / DATE RANGE / FORMAT / PRIVILEGE DESCRIPTION / WITHDRAWAL]

Requested completion date: [DATE, WITH REASON]

[REPEAT FOR EACH DISPUTED ITEM]

We are available to confer on [DATES AND TIMES] by [METHOD]. Please
confirm a time or offer alternatives by [DATE]. We also invite a different
proportionate proposal that resolves the identified issues.

If the parties cannot resolve a remaining issue, we will evaluate the
procedure available under the current Civil Rules, local rules, and case
orders. Civ.R. 37(A)(1) requires a motion to compel to include a good-faith
conference certification. Civ.R. 37(A)(5) addresses expenses only after the
specified result and opportunity to be heard, and it contains exceptions;
expenses are not automatic because a response is disputed. Civ.R. 37(D)
separately addresses the complete failures listed there and requires the
specified certification for a motion concerning failure to answer or respond.

Sincerely,

[APPROVED SIGNATURE BLOCK]

5. Conference Record

Preserve enough detail to support an accurate Civ.R. 37(A)(1) or 37(D)(1)(b)
certification if a motion later becomes appropriate. The final certification
must describe what actually occurred.

6. Lost-ESI Gate

Do not turn a response dispute into a categorical litigation-hold or spoliation
accusation. If evidence supports a lost-ESI issue, record:

Civ.R. 37(E)(2)'s presumption, jury-instruction, dismissal, and default routes
require the rule's intent finding. A conference letter should request facts or
a preservation discussion, not announce that the finding or sanction exists.

7. Final Counsel Review

☐ Every challenged item is quoted or accurately summarized

☐ Response date and interrogatory count were independently calculated

☐ Proposed cure is relevant, nonprivileged, and proportional

☐ ESI form demand has a request, agreement, order, or case-specific basis

☐ Privilege discussion follows Civ.R. 26(B)(8)

☐ Admission language preserves the designated period and court's role

☐ No sanction, expense, waiver, admission, or spoliation finding is stated as
automatic

☐ Local rules, case orders, discovery plan, and protective orders were checked

☐ Conference dates allow a genuine opportunity to resolve the dispute

☐ Sender approved the tone, service method, and final signature block

This form is complete only after Ohio counsel verifies the actual requests,
responses, dates, governing orders, and proposed resolution.