You are on page 1of 8

The Process of Discovery in

a South Carolina Lawsuit

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 doesnt 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 Carolinas state courts.
What Type of Information is Discoverable in a South Carolina
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
1. Must be relevant to the case. This doesnt 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.
2. Cant be unduly burdensome for the other side to produce, as
weighed against its benefit to the litigation. It also cant be
obtainable to you from some other source that is more convenient, less
burdensome, or less expensive than getting it from the other party.
3. Cant be privileged. For example, unless you have waived the
attorney-client privilege, the other side cant see letters between you and
your lawyer.
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


Requests for production (informally referred to by some as

requests to produce) can be sent to the other side of the case.
Basically, you request documents that the other side has access
to that you cant get on your own. RFPs 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
2. Interrogatories (Rule 33, SCRCP) in South Carolina

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 take from the
witnesses and indicate who has possession of such statements.

This one is often followed by another standard interrogatory that


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
3. Requests for Admission (Rule 36, SCRCP) in South

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

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

Subpoenas allow us to obtain information from people who are

NOT parties to the case. We can either have them produce
5. Depositions (Rule 30, SCRCP) in South Carolina

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 elses
witness will say and avoid be 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 youre in
a deposition, read our other article here.

6. Physical and Mental Examinations (Rule 35, SCRCP) in South


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 and examination of the plaintiff. This can
Supplementing Discovery

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

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 sides bank statements
for the past 5 years. The other side objects and claims its 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

Litigation can be overwhelming for a self-represented party in

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 didnt respond to the other sides
discovery requests correctly or (2) miss out on getting their own
evidence because they didnt utilize the discovery tools to their
advantage. If you are in circuit court or family court, consider at
least consulting with a lawyer experience with the South Carolina
Rules of Civil Procedure.