The Ohio motion to compel: certify the conference, or the fee award goes the other way

Ohio's Civ.R. 37 shifts fees both ways, and it does so in mandatory language. If you win, the other side pays. If you lose, you pay. If it splits, the court may apportion.

That symmetry is the reason a motion to compel in Ohio is worth preparing carefully rather than firing off — and the reason the certification requirement at the front of the rule is not a formality.

The certification

Ohio Civ.R. 37(A)(1):

In general On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.

Two requirements in one sentence: notice to other parties and all affected persons, and a certification of a good faith conference or attempted conference.

Note the certification covers "conferred or attempted to confer" — a party who will not engage cannot block the motion by refusing to talk. But the attempt has to be real, and it has to be certified.

Civ.R. 37(A)(2) fixes the forum: "A motion for an order to a party or a deponent shall be made to the court where the action is pending."

What you can compel

Civ.R. 37(A)(3)(a):

To compel a discovery response A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(i) A deponent fails to answer a question asked under Civ.R. 30 or Civ.R. 31; (ii) A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A); (iii) A party fails to answer an interrogatory submitted under Civ.R. 33; (iv) A party fails to respond that inspection will be permitted— or fails to permit inspection—as requested under Civ.R. 34.

Four triggers, covering depositions, corporate designations, interrogatories and document requests.

And the provision that does most of the work in practice, Civ.R. 37(A)(4):

Evasive or incomplete answer or response For purposes of division (A) of this rule, an evasive or incomplete answer or response shall be treated as a failure to answer or respond.

You do not need a refusal. An evasive or incomplete answer is treated as no answer at all — which is what most real disputes are about. Quote this provision when the other side argues that it did respond.

Civ.R. 37(A)(3)(b) covers the deposition situation: "When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order." You choose whether to finish the deposition or break it off.

Fees, both ways

Civ.R. 37(A)(5)(a) — if the motion is granted:

If the motion is granted, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court shall not order this payment if:

(i) The movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) The opposing party's response or objection was substantially justified; or (iii) Other circumstances make an award of expenses unjust.

Civ.R. 37(A)(5)(b) — if it is denied:

If the motion is denied, the court may issue any protective order authorized under Civ.R. 26(C) and shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court shall not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

Both are written as "shall". The award is the default, not the exception, and it can be made against the attorney as well as the party.

Look at the first exception under (a): no award "if the movant filed the motion before attempting in good faith to obtain the discovery without court action." A movant who wins the motion but skipped the conference gets the order and no fees. That is the certification requirement with teeth.

Civ.R. 37(A)(5)(c) covers the mixed result: the court "may issue any protective order authorized under Civ.R. 26(C) and may, after giving an opportunity to be heard, apportion reasonable expenses."

A denied motion can also produce a protective order against the movant — so an overreaching motion can leave you worse off than before you filed it.

If the order is disobeyed

Civ.R. 37(B)(1):

If a party or a party's officer, director, or managing agent or a witness designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails to obey an order to provide or permit discovery, including an order made under Civ.R. 35 or Civ.R. 37(A), the court may issue further just orders. They may include the following:

(a) Directing that the matters embraced in the order or other designated facts shall be taken as established for purposes of the action as the prevailing party claims; (b) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (c) Striking pleadings in whole or in part; (d) Staying further proceedings until the order is obeyed dismissing; (e) Dismissing the action or proceeding in whole or in part; (f) Rendering a default judgment against the disobedient party; or (g) Treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

Seven sanctions, escalating from deemed-established facts to dismissal and default judgment. The contempt power reaches every order except one to submit to a physical or mental examination.

The list reaches beyond the party itself — an officer, director or managing agent, or a designated corporate witness.

And Civ.R. 37(B)(3) adds fees on top:

Payment of expenses Instead of or in addition to the orders above, the court shall order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

"Instead of or in addition to" — fees are available alongside the substantive sanction, and again the language is mandatory.

Civ.R. 37(B)(2) extends the same list where a party fails to produce another person for examination under Civ.R. 35(A), "unless the disobedient party shows that it cannot produce the other person."

Before you move

The most common Ohio mistake is moving too early. The sequence that keeps the fee award on your side:

1. Serve the discovery properly — see Ohio discovery deadlines.
2. Read the response for evasion or incompleteness, not just refusal. Civ.R. 37(A)(4) covers both.
3. Confer in good faith, and record it. Date, method, what was asked, what was said.
4. Certify the conference in the motion.
5. Ask for something specific — an answer, a designation, production or inspection, identified item by item.

For requests for admission specifically, the mechanics differ from other discovery and the consequences of silence are harsher. See Ohio requests for admission.

How Ohio compares

A short checklist

1. Confer first, and in good faith. Winning without conferring costs you the fee award.
2. Certify the conference in the motion — the rule requires it in terms.
3. Give notice to all affected persons, not only the opposing party.
4. Point to Civ.R. 37(A)(4) where the response was evasive or incomplete rather than absent.
5. Ask for specific relief — an answer, designation, production or inspection, identified precisely.
6. Weigh the downside. A denied motion means you pay, and may draw a protective order against you.
7. At a deposition, decide whether to complete or adjourn before moving.
8. If an order is already in place and ignored, ask for the substantive sanction and fees — the rule allows both.

Where these rules live

• Ohio Civ.R. 26 — General Provisions Governing Discovery
• Ohio Civ.R. 33 — Interrogatories to Parties
• Ohio Civ.R. 34 — Producing Documents and Things
• Ohio Civ.R. 36 — Requests for Admission
• Ohio Civ.R. 37 — Failure to Make Discovery; Sanctions

This page explains what the rules say. It isn't legal advice, and what makes an objection substantially justified is developed in case law this site doesn't cover.