Our trial lawyers at Futeral & Nelson are regularly involved in both circuit court (civil court) and family court lawsuits. In nearly every case, it is important to make sure we have the evidence necessary to prove or defend our case in the event it doesn’t settle and goes to trial. The exchange of evidence from other parties is called “discovery” in South Carolina and pretty much every other court across the country. Here, we will summarize the discovery process in South Carolina’s state courts.
What Type of Information is Discoverable in a South Carolina Lawsuit?
Rule 26, SCRCP is a lengthy court rule that sets the stage for what information is discoverable in South Carolina. The case law around this rule (and similar rules in other state and federal courts) is extensive and goes back for decades. One way to summarize what is discoverable is that the information:
- Must be relevant to the case. This doesn’t mean it has to be evidence that is admissible at trial, so long as it is reasonably calculated to lead to the discovery of admissible evidence.
- Can’t be unduly burdensome for the other side to produce, as weighed against its benefit to the litigation. It also can’t be obtainable to you from some other source that is more convenient, less burdensome, or less expensive than getting it from the other party.
- Can’t be “privileged.” For example, unless you have waived the attorney-client privilege, the other side can’t see letters between you and your lawyer.
- Can’t relate to the other side’s trial preparation or strategy.
- Should not subject a party to annoyance, embarrassment, oppression, or undue burden by expense.
This list is not all-inclusive, and it is best to listen to the advice of a lawyer if you have specific questions relating to the evidence in your case.
Methods of Discovery in a South Carolina Lawsuit
The most frequently used methods of obtaining discovery are explained in this list:
1. Requests for Production (Rule 34, SCRCP) in South Carolina
Requests for production (informally referred to by some as “requests to produce”) under Rule 34 can be sent to the other side of the case. Basically, you request documents that the other side has access to that you can’t get on your own. RFP’s can ask for internal corporate records, bank statements, phone records, internal policies, information relating to real property or other assets, medical records, emails, contracts, invoices, and countless other items. It all depends on the type of case. The rule only requires them to make the documents available for inspection, but it has become very common among lawyers to simply make copies (hard copy or electronic scans) and send them. This rule also encompasses other types of inspection such as entering the real property or having a computer expert look at someone’s computer.
2. Interrogatories (Rule 33, SCRCP) in South Carolina
Under Rule 33, interrogatories are written questions you can send to the other side, which they must respond to under oath. There are eight standard interrogatories that you can ask in every case. If the case has more than $25,000 at stake or if it requests a declaratory judgment or injunctive relief from the court, then you can ask up to fifty more “additional interrogatories.” Perhaps the simplest example of an interrogatory is the standard interrogatory that requests:
“Give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.”
This one is often followed by another standard interrogatory that requests:
“For each person known to the parties or counsel to be a witness concerning the facts of the case, set forth either a summary sufficient to inform the other party of the important facts known to or observed by such witness, or provide a copy of any written or recorded statements taken from such witnesses.
3. Requests for Admission (Rule 36, SCRCP) in South Carolina
Under Rule 36, Requests for Admission are written requests for the other side to simply formally admit a fact. This can save the trouble and expense of having to prove something that nobody disputes. If you deny a request for admission and it is later proved, you risk having to pay the expenses associated with making them prove it. You can also ask for the other side to admit the genuineness of a document.
An example of a request for admission would be in a personal injury case, one driver requests that the other driver admit that his headlights were out at the time of the accident. If the other driver admits it, then that fact is established for trial. If the other driver denies it, the first driver will have to prove it but can request his or her expenses be paid in having to prove it.
4. Subpoenas (Rule 45, SCRCP) in South Carolina
Under Rule 45, subpoenas allow us to obtain information from people who are NOT parties to the case. We can either have them produce documents (such as asking a phone carrier to give us someone’s phone records) or can force people to come to depositions or trials as witnesses. Remember that, with a subpoena, we are involving people who have no dog in the fight, and we should go out of our way to minimize any inconvenience on them.
5. Depositions (Rule 30, SCRCP) in South Carolina
Under Rule 30, a deposition is where we can force a party or a witness to sit before a court reporter and be sworn under oath, and we can ask them questions relating to the case. Cases are often made or broken at the deposition because this is the time we really find out what the witnesses are going to say. We might take depositions simply to learn what someone else’s witness will say and avoid being surprised later. Sometimes we think we know what they are going to say, so we want to lock them down on that sworn testimony. A deposition can be used at trial to impeach the credibility of someone who changes their story. Attorney Tom Nelson with our firm actually wrote the book on deposition procedures in South Carolina.
To learn more about what to do if you receive a notice of deposition in South Carolina, read our article here. To learn about what to do if you’re in a deposition, read our other article here.
6. Physical and Mental Examinations (Rule 35, SCRCP) in South Carolina
Under Rule 35, in cases where the physical or mental health of a person is relevant, a party can request the other submit to a physical or mental examination. For example, in an auto accident case, the defense may want to have their own independent doctor perform an examination of the plaintiff. This can lead to a fight because often, the plaintiff’s lawyer doesn’t trust the doctor proposed by the defense to give an impartial opinion. Another example is where one parent in a family court custody case claims the other is unfit to be around the kids and requests the court order the other parent to submit to a psychological evaluation.
If you have responded to interrogatories, requests for production, requests for admission, and/or depositions upon written questions (which are rarely used and were not discussed in this article), you have an obligation to supplement your responses if new information becomes available.
Court Involvement in Discovery
In a perfect world, discovery is done between the parties and never has to go to court. However, sometimes things arise that require help from a judge. For example, you might ask for the other side’s bank statements for the past 5 years. The other side objects and claims it’s not relevant to the case, nor is it going to lead to admissible evidence. You may have to make what is called a Motion to Compel and have a judge decide whether the other side has to give the information.
It is our experience that South Carolina judges do not like hearing discovery disputes, especially ones that really should have been worked out between the lawyers. This is one reason why lawyers usually grant at least one extension of time if the other side requests an extension to respond. Judges can also sanction parties in numerous ways if the parties abuse the discovery process. Sanctions can include paying some of the other side’s attorney’s fees, limiting the use of evidence at trial, or in extreme cases, actually dismissing that parties’ claims or defenses.
Litigation can be overwhelming for a self-represented party in the circuit court or family court, and the discovery process only adds to this. A self-represented party can either (1) find him or herself in hot water because they didn’t respond to the other side’s discovery requests correctly or (2) miss out on getting their own evidence because they didn’t utilize the discovery tools to their advantage. If you are in the circuit court or family court, consider at least consulting with a lawyer experienced with the South Carolina Rules of Civil Procedure.