Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

August 10, 2006

If you're like me -- and about 90% of other lawyers -- getting hit with a stack of interrogatories or document requests doesn't exactly elicit the reaction, "Jeez, I've got to drop everything and get the responses out on these!"  Timely responses to discovery are about as common as Jessica Simpson winning at Scrabble.  With one exception:  requests for admissions under Rule 36.  As more than a few lawyers have learned the hard way, requests come with a self-enforcing time limit:  the other side can ask you nasty questions like, "Admit that you were negligent," and if you don't respond within the 28 days allowed by the rule, the request is deemed admitted.

Maybe.  I recently had to do a brief for a lawyer who'd been tardy in filing his responses, and it turns out the law is a bit more forgiving.  Under Rule 36(B), the court can permit withdrawal or amendment of a response (and "amendment" equals a late filing) "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits."

That allows a lot of discretion, and the courts -- especially at the Federal level -- have been quite willing to use it to allow filings out of rule.  I found cases where the responses were allowed after summary judgment had been filed, and in one case where they were allowed after the trial started.  In one, the defendant hadn't gotten around to answering requests that had been filed two years earlier, and the court simply gave him a date to respond to them.  (If you start with the forfeiture case reported at 863 F.Supp. 442, it'll lead you to the others.)

The Ohio courts haven't been quite as willing to absolve untimeliness in responding, especially where the conduct is egregious -- like filing the responses six months after they were due and nine days before trial, as happened in one 1998 case.  The best case here is this one from the 9th District, which held that the trial court's refusal to permit a late filing was an abuse of discretion because of the "basic tenet of Ohio jurisprudence that cases should be decided on their merits."

Love those basic tenets.  They'll get you off the hook eight times out of ten.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions