Last week, in Miller v. State Farm, 2015-Ohio-280, the Ninth District reminded everyone that a motion to compel medical records must be predicated on requests for productions or interrogatories, rather than any other informal request for discovery. The plaintiff, injured in a car accident, sought payment under his underinsured motorist policy with State Farm. During pretrial practice, the negligent driver sought discovery, including the plaintiff's medical records and bills. State Farm relied on the driver's discovery, never propounding its own set of discovery. This fact became important. After deposing the plaintiff, State Farm asked for additional records. The plaintiff balked, and offered to have his attorney review the additional records to determine if they were relevant. State Farm refused the offer.
State Farm filed a motion to compel medical records, seeking to force the plaintiff into signing a release to access the additional records. The plaintiff objected, claiming the records were privileged. The trial court sided with State Farm and ordered the plaintiff to sign the release. The plaintiff appealed claiming the order compelled the production of privileged material. The Ninth District's decision does not discuss whether the privilege was waived by filing the complaint, an issue likely to resurface after the remand.
Instead, the trial court's decision compelling the release was reversed on the basis that State Farm never propounded its own discovery. The court held that in order to avail itself of Civ.R. 37(A), which provides that if the party fails to respond to discovery submitted under Civ.R. 33 (interrogatory) or Civ.R. 34 (production) the discovering party may then seek an order to compel, State Farm must first propound its own discovery. The court emphasized that Civ.R. 37(A)(2) only authorizes the "discovering party" to seek to compel answers to propounded discovery, meaning State Farm could not rely on the negligent driver's discovery requests. Summarily stated, a "trial court cannot compel a response from one party to another who has not yet issued a [discovery] request."
The Ninth District's decision helps clarify an overlooked aspect of discovery, but unfortunately, the parties will likely be back in the court of appeals to resolve the privilege issue after a brief remand. In light of the trial court's original decision to compel disclosure of additional medical records, it's not at all far-fetched that State Farm will formally propound discovery, have that granted, and the same privilege issue will be up on appeal. This highlights the importance of getting discovery handled by the book to avoid the unnecessary delays and expense of extra trips to the court of appeals.