Broad Post-Judgment Discovery

March 7, 2018

Once a creditor has secured a judgment against a debtor, questions may arise regarding which post-judgment discovery methods are available to aid in executing on a judgment. Questions such as whether it is permissible to serve discovery on a person other than the judgment debtor, and if so, what limits and restrictions apply.  

Ohio Civil Rule 69 allows creditors to conduct broad post-judgment discovery. The rule states in relevant part that "in aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may also obtain discovery from any person, including the judgment debtor, in the manner provided in these rules."1 In accordance with that rule, the scope of discovery generally is broad and includes "any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party."2   

Recently, the court in Sugarcreek Amish Tours, Inc. v. Martin, a case out of Ohio's Fifth Appellate District, cited Ohio Civil Rule 69 in and brought some clarity as to the scope of post-judgment discovery. In that case, Sugarcreek Amish Tours, Inc. ("Sugarcreek") filed a complaint against Donald Martin ("Donald"), Rhonda Martin ("Rhonda"), Donal Enterprises, Inc., and PRP Railroad Construction & Supply, Inc. ("PRP") to recover loan proceeds. The complaint against Rhonda and PRP were eventually dismissed without prejudice, and after a bench trial, the court found that Donald was legally obligated to pay Sugarcreek close to $5 million.

Sugarcreek began its pursuit to collect on the judgment against Donald, and issued a subpoena to Huntington Bank for checking account records for Rhonda. Rhonda filed a motion to quash the subpoena, claiming that the records sought were personal and private and disclosure should not be permitted. She claimed that because she was no longer a party and because the statute of limitations had expired for any claims against her, the requested discovery of her checking account records from Huntington should not be permitted. The trial court granted Rhonda’s motion to quash without providing its reasoning in its ruling. Believing that the trial court erred in quashing its subpoena issued to Huntington for Rhonda's checking account records, Sugarcreek appealed.

The Fifth District Court of Appeals agreed with Sugarcreek. As previously noted, Ohio Civil Rule 69 permits discovery from any person in aid of executing on a judgment. It is not limited to the judgment debtor. Further, the lower court held that Ohio Civil Rule 45 allows subpoenas to be issued to nonparties. Thus, the Fifth District Court of Appeals found that Rhonda's "argument regarding the statute of limitations and her status as a nonparty are irrelevant and cannot serve as a basis for the trial court to quash the subpoena".3 Further, the court held that it was "likely the records will provide some relevant information regarding disposition of loan proceeds or other relevant evidence. The fact that she is no longer a party and may be protected from claims by the statute of limitations is irrelevant and shall not be used as a shield to prevent Appellant from exhausting options to track the funds loaned to Donald R. Martin."4

It is the law in the State of Ohio that the abuse of discretion standard applies when reviewing a trial court's decision on a motion to quash a subpoena.5 An abuse of discretion "connotes an unreasonable, arbitrary, or unconscionable decision.6 Here, the trial court failed to memorialize its reasoning process or to cite the rule or determining principle that supported its conclusion when it granted Rhonda's motion to quash. Thus, the Court of Appeals found that there was no support for granting it, and held that the trial court abused its discretion.

The recent decision in Sugarcreek demonstrates that Ohio Civil Rule 69 allows for broad post-judgment discovery for creditors with a judgment in place. In aid of the judgment or execution, the judgment creditor may obtain nonprivileged and relevant discovery from any person, including the judgment debtor, in the manner provided in the Ohio Rules of Civil Procedure. 

For more information on this topic, please contact Jack W. Hinneberg, Esq. Mr. Hinneberg practices in the Commercial Collections Practice Group, with a focus on complex matters. He is a member of the Cleveland Metropolitan Bar Association and the Ohio State Bar Association, and is based in Cleveland, Ohio.

Ohio Civ. R. 69.
2 In re Estate of Geneva, No. 2016 AP 02 0013, 2016-Ohio-5382 (5th Dist. Tuscarawas). 
Sugarcreek Amish Tours, Inc. v. Donald Rodney Martin, et al., No. 2017 AP 06 0016, 2017-Ohio-9364 (5th Dist. Tuscarawas).
4 Id.
5 State ex rel. The V. Companies v. Marshall, 81 Ohio St. 3d 467, 692 N.E.2d 198 (1998). 
State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 665 N.E.2d 200 (1996).