Litigation

The term “litigation” generally refers to a process in which a controversy between parties is submitted to a court or administrative body for determination. Litigation is typically initiated by the filing of a complaint.

With few exceptions, lawsuits seeking money damages against OSU may only be filed in the Ohio Court of Claims. The Court of Claims is a special court, created by statute for the sole purpose of deciding cases filed against state entities, such as OSU. Cases filed in this court are decided by a single judge.  The Ohio Court of Claims judges appointed by the Chief Justice of the Ohio Supreme Court.

Each county in Ohio has a common pleas court. The common pleas court hears and determines disputes between private parties. Cases in the common pleas court are presided over by elected judges, and many common pleas actions are determined by juries. In most instances, the common pleas court does not have the authority to determine cases filed against OSU or OSU employees.

In order to sue an individual, a "complaint" identifying the employee as a defendant must be filed in a court and "served" on the defendant. Service of the complaint on an employee is typically done via certified mail. The complaint will set forth the allegations against the defendant and will include a claim for relief, e.g. money damages. Accompanying the complaint will be a document called a “summons.” It will identify the plaintiff, the defendant/employee, and the timeframe to answer the complaint.

If you are served with a complaint, immediately contact the Office of Legal Affairs at 614-292-0611. Under Ohio law, a complaint filed in a state court must be responded to within 28 days of service. The response deadline for cases filed in Federal Court may be as little as 20 days from the date of service.

By statute, only the Ohio Attorney General's Office may represent OSU in litigation. In some cases, a private firm retained by the Attorney General (referred to a "special counsel") will defend OSU.

Immunity refers to a protection from personal liability that may be provided to OSU employees and faculty who are sued in their individual capacity. Immunity may be provided so long as the employee’s actions giving rise to the lawsuit were within the course and scope of the employee's duties and the employee did not act with malice, in bad faith, or in a wanton or reckless manner. If these conditions are met and the employee is named as a defendant in a lawsuit, the University will provide legal representation and take financial responsibility for the conduct of the employee. The process for determining whether an employee is entitled to immunity is set forth in the Ohio Revised Code.

In Ohio, cases that are tried in a lower court may be appealed to an Ohio Court of Appeals. A Court of Appeals may include several counties in its service area. The Court of Appeals hears cases from each of the Municipal or Common Pleas courts in those counties. In Franklin County, Ohio, the court is called the Tenth District Court of Appeals.

The court of last resort and the highest court in the state is the Supreme Court of Ohio. Some cases have a right to be heard by this Court, others, but must be granted an appearance by the Court.

When issues of federal law arise a party may file his or her case in a federal district court that has jurisdiction over the case. Federal court trials may be in front of a judge or jury, depending on the case. In Columbus, Ohio, the local U.S. District Court is called the U.S. District Court for the Southern District of Ohio.

If your case lands in the United States Court of Appeals, then it probably started as a federal court case and has already been ruled on by the U.S. District Court. The Court of Appeals considers the outcome of that case on appeal and may overturn or affirm the District Court decision. The U.S. Court of Appeals for the Sixth Circuit is the name of the court which governs matters in Ohio, located in cincinnati, ohio.

The U.S. Supreme Court is the highest court in the country and is the court of last resort. A decision of the U.S. Supreme Court may not be appealed to any other court, and all of its decisions are final.

The Office of Legal Affairs (OLA) is the university liaison with the Office of the Ohio Attorney General. The OAG is the statutory counsel for the university and for all state government agencies in Ohio. OLA works closely with the Attorney General's office in managing litigation and resolving disputes.

Several sections within the Ohio Attorney General's office represent the university in litigation matters. Frequently attorneys from the Employment Law Section, the Education Law Section and the Court of Claims Defense Section handle cases on behalf of the university. Whenever counsel from the Attorney General's Office or other attorneys handle cases on behalf of the university, they work closely with OLA.

OLA also may request legal matters be referred to attorneys at law firms or other private counsel. Those attorneys are referred to as special counsel because, at the university’s request, they are specially appointed by the Ohio Attorney General's office to represent the university. These attorneys also work closely with attorneys in OLA to handle cases assigned to them.

Both AGO attorneys and special counsel are assigned litigation on a case-by-case basis. Factors considered in the assignment of counsel are experience and expertise in a particular subject matter, the number of cases assigned to that counsel, costs, and experience in the forum.

Costs of litigation are paid by the department where the litigation originates. Litigation costs vary depending upon a number of factors, such as the counsel chosen, the length of the litigation, the amount of the award, and in some cases, the forum. In general, all litigation requires the department to pay the expenses of litigation (e.g., depositions,  transcripts, court fees, and travel expenses) as well as expert fees and attorney fees. Billing information is included on the Request for Legal Counsel Form.

A preservation notice is a formal communication that OLA will issue to faculty or staff, often via email, instructing them to preserve documents, data, and/or communications that may be relevant to a specific university litigation matter or investigation. The notice requires the recipient to ensure they are not intentionally discarding or deleting records and also that routine auto-deletion or modification of potentially relevant information does not occur. It’s significantly important to acknowledge receipt of a preservation notice because it confirms that the employee understands their legal obligation to comply with the notice upon receipt of it. Failure to acknowledge receipt of a preservation notice and failure to preserve relevant information after receiving such a notice can lead to serious legal consequences for both the individual and the university.

When the university is not involved in litigation, legal counsel still may request records or testimony from the university or specific university employees through a legal tool called a subpoena. A subpoena is a legal document that commands the recipient to provide specific records or categories of records (“subpoena duces tecum”).  Subpoenas may also request witness testimony for a deposition or trial in litigation that may or may not involve the university. If you receive a subpoena for records or testimony, please let OLA know as soon as possible so we can assist in determining the next steps for compliance with the subpoena, as subpoenas are often time-sensitive.