Kim M. Aumiller


Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment of the recent amendment, much confusion existed because: (1) the nature of this proceeding was unclear as to whether it was a civil action or a special proceeding; (2) the language of the statute prescribed procedures which no longer existed, specifically "petition" and "demurrer"; and (3) application of the Civil Rules produced results which were unnecessary and contradictory. This uncertainty might have contributed to the sparse use of this valuable discovery tool.

The Ohio legislature became concerned with the problems inherent in Revised Code § 2317.48, specifically its out-dated language. In an effort to make clear that the Rules of Civil Procedure are applicable to the discovery statute, an amendment was passed changing the language of Revised Code § 2317.48.

Historical analysis of the problem provides insight into the legislative solution. For throughout Ohio case history the courts have consistently looked back to the origins of discovery in order to resolve present-day discovery issues.