How Does Discovery Work in a South Carolina Lawsuit?

Our trial lawyers at Futeral & Nelson regularly handle both circuit court (civil) and family court lawsuits. In nearly every case, we must have the evidence needed to prove or defend our case if it doesn’t settle and goes to trial. The exchange of evidence between the parties is called “discovery” in South Carolina and in pretty much every other court across the country.

Many people involved in a lawsuit for the first time are surprised by how much information they may have to share, how many deadlines apply, and how much discovery can affect the case’s outcome. So how does discovery work in a South Carolina lawsuit, and what must each side disclose?

Quick Answer: Discovery is the process the parties use to exchange information and evidence before trial. In South Carolina state courts, the South Carolina Rules of Civil Procedure govern discovery and generally apply in family court. The main methods include interrogatories, requests for production, requests for admission, depositions, and subpoenas to nonparties. Written discovery requests generally must be answered within 30 days, and a party who refuses to cooperate may face a motion to compel and sanctions.

What Is Discovery in a South Carolina Lawsuit?

Discovery is the stage of a lawsuit where each side gathers information from the other side and from witnesses before trial. It usually begins after the lawsuit is filed and served and continues until the deadline set by the court’s scheduling order or by the court rules. Discovery allows each party to learn the facts, evaluate the case’s strengths and weaknesses, avoid surprises at trial, and make informed settlement decisions.

In South Carolina’s state courts, Rules 26 through 37 and Rule 45 of the South Carolina Rules of Civil Procedure govern discovery. These rules apply in circuit court, and they generally apply in family court as well.

What Information Can Be Discovered 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 decades. One way to summarize what is discoverable is that the information:

• Must be relevant to the subject matter of the case. This doesn’t mean it must be evidence admissible at trial, as long as it is reasonably calculated to lead to the discovery of admissible evidence.
• Can’t be unreasonably burdensome or expensive to produce in light of its likely benefit to the litigation. The court may also limit discovery obtainable from some other source that is more convenient, less burdensome, or less expensive.
• Can’t be “privileged.” For example, unless you have waived the attorney-client privilege, the other side generally can’t see confidential communications between you and your lawyer.
• Generally can’t include the other side’s trial preparation materials unless a rule-based exception applies; the mental impressions and legal strategy of the other side’s lawyer receive special protection.
• May be limited by a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense.

This list is not all-inclusive, and it is best to follow a lawyer’s advice if you have specific questions about the evidence in your case.

What Are the Methods of Discovery in South Carolina?

The most frequently used methods of obtaining discovery are summarized in the following table and explained in more detail below:

How Do Interrogatories Work in South Carolina?

Under Rule 33, interrogatories are written questions you can send to the other side, which they must answer under oath unless they object. There are eight standard interrogatories, although one is for defendants only.

In cases involving at least $25,000, cases seeking a declaratory judgment or injunctive relief, and family court actions, a party may also ask up to fifty additional interrogatories, counting subparts, without the court’s permission. The court may permit additional interrogatories for good cause in other cases or permit more than fifty when that limit applies. 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.”

How Do Requests for Production Work 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 and other items that the other side has in its possession, custody, or control. Requests for production can ask for internal corporate records, bank statements, phone records, internal policies, information relating to real property or other assets, medical records, emails, text messages, contracts, invoices, and countless other items. It all depends on the type of case.

The rule permits inspection and copying of documents and electronically stored information, but lawyers have often simply made copies (hard copy or electronic) and sent them. This rule also covers other types of inspection, such as entering real property or inspecting, testing, or sampling electronically stored information within the rule’s limits.

What Are Requests for Admission in South Carolina?

Under Rule 36, requests for admission are written requests asking the other side to formally admit a fact. This can save the trouble and expense of proving something nobody disputes. You can also ask the other side to admit a document’s genuineness. If a party does not respond on time, the matters may be deemed admitted. If a party denies a request for admission and the matter is later proved, the court may order that party to pay the reasonable expenses of proving it, subject to exceptions.

An example of a request for admission is a personal injury case in which one driver asks the other driver to 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 unless the court permits withdrawal or amendment of the admission. If the other driver denies it, the first driver must prove it but can ask the court to order the other driver to pay the expenses of proving it, subject to exceptions.

How Do Depositions Work in South Carolina?

Under Rule 30, a deposition is where a party or a witness answers questions under oath before an officer authorized to take testimony, usually a court reporter. Cases are often made or broken at the deposition because this is when 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 a witness is going to say, so we want to lock that testimony down under oath. A deposition can be used at trial to impeach the credibility of someone who changes his or her story. Attorney Tom Nelson with our firm actually wrote the book on deposition procedures in South Carolina.

To learn more, read our articles on what to do if you receive a deposition notice in South Carolina and surviving a deposition in South Carolina.

Can You Get Records from People Who Are Not Parties to the Case?

Yes. Under Rule 45, subpoenas allow a party to obtain information from people and businesses that are not parties to the case. A subpoena can require a nonparty to produce documents (such as asking a phone carrier for someone’s phone records) or to appear and testify at a deposition, hearing, or trial. Remember that, with a subpoena, we are involving people who have no stake in the outcome of the case, and the rules require the party issuing the subpoena to take reasonable steps to avoid imposing undue burden or expense on them.

When Can the Court Order a Physical or Mental Examination?

Under Rule 35, in a case where the amount in controversy exceeds $100,000 in actual damages, when the physical or mental condition of a party or a person in a party’s custody or legal control is in controversy, the court may order an examination by a physician, but only on motion and for good cause shown. For example, in an auto accident case meeting that threshold, the defense may want its own doctor to examine the plaintiff.

This can lead to a fight because the plaintiff’s lawyer often doesn’t trust the doctor the defense proposes to give an impartial opinion. A request for a psychological evaluation in a family court custody case is different: it should not be assumed that Rule 35 authorizes the examination merely because one parent claims the other is unfit to be around the children.

Do You Have to Update Your Discovery Responses?

Sometimes. Under Rule 26(e), requests for discovery under Rules 31, 33, 34, and 36 are treated as continuing until trial, so information responsive to them that later comes to a party’s, representative’s, or attorney’s knowledge must be promptly transmitted to the other side.

In addition, a party must seasonably supplement responses about the identity and location of persons with knowledge of discoverable matters and about expert witnesses expected to testify at trial, including the subjects and substance of their expected testimony. You must also correct prior responses that prove incorrect or misleading. A court order or a party agreement may also require supplementation.

What Happens If the Other Side Refuses to Respond to Discovery?

In a perfect world, discovery is done between the parties and never has to go to court. However, sometimes issues arise that require a judge’s help. For example, you might ask for the other side’s bank statements for the past five years. The other side objects, claiming they are not relevant to the case or reasonably calculated to lead to admissible evidence. You may have to file a motion to compel and have a judge decide whether the other side must provide the information. Lawyers often try to resolve the dispute before asking the court to intervene.

In our experience, South Carolina judges do not like hearing discovery disputes, especially ones that 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. Under Rule 37, judges can also sanction parties in numerous ways if they 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, dismissing a party’s claims or defenses.

How Does Discovery Work in Family Court?

The South Carolina Rules of Civil Procedure generally apply to discovery in family court cases such as divorce, custody, alimony, and property division. Family court also has its own requirements. For example, in domestic relations cases where a party’s financial condition is relevant or at issue, each party generally must file and serve a financial declaration, which we explain in our article on how to fill out a South Carolina financial declaration form for family court. Discovery in family court often focuses on income, assets, debts, and, in custody cases, information about each parent’s home and relationship with the children.

How Long Does Discovery Take in a South Carolina Lawsuit?

It depends on the court, the case’s complexity, and the number of witnesses and documents involved. In circuit court, a scheduling order, when entered, may set deadlines for completing discovery, identifying expert witnesses, and completing mediation. Simple cases may complete discovery in a few months, while complex cases can take a year or more. Delays in responding to discovery, disputes that require court involvement, and the need for expert testimony can all extend the process.

Do You Need a Lawyer for Discovery?

Litigation can be overwhelming for a self-represented party in circuit court or family court, and discovery only adds to it. A self-represented party can (1) find himself or herself in hot water for not responding to the other side’s discovery requests correctly or on time, or (2) miss out on important evidence by not using the discovery tools effectively.

If you are involved in a lawsuit in circuit court or family court, consider at least consulting with a lawyer experienced with the South Carolina Rules of Civil Procedure. The attorneys at Futeral & Nelson have represented clients in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Our Charleston personal injury and trial lawyers can help you with discovery in your case. Call us at 843-284-5500 to discuss your situation.