RE: Amendments to the South Carolina Rules of Civil Procedure and the South Carolina Appellate Court Rules
By Order dated January 31, 2003, new Rule 41.1, SCRCP, and amendments to Rule 43, SCRCP, and Rule 232, SCACR were submitted to the General Assembly pursuant to Art. V, § 4A, of the South Carolina Constitution. More than ninety days having passed since the submission to the General Assembly without rejection, new Rule 41.1, SCRCP, and the amendments to Rule 43, SCRCP, and Rule 232, SCACR, are effective immediately.
IT IS SO ORDERED.
s/Jean H. Toal C.J.
s/E.C. Burnett, III J.
s/Costa M. Pleicones J.
Columbia, South Carolina
May 5, 2003
Rule 41.1, SCRCP
Sealing Documents and Settlement Agreements
(a) Purpose. Because South Carolina has a long history of maintaining open court proceedings and records, this Rule is intended to establish guidelines for governing the filing under seal of settlements and other documents. Article I, § 9, of the South Carolina Constitution provides that all courts of this state shall be public and this Rule is intended to ensure that that Constitutional provision is fulfilled. However, the Court recognizes that as technology advances, court records will be more readily available and this Rule seeks to balance the right of public access to court records with the need for parties to protect truly private or proprietary information from public view and to insure that rules of court are fairly applied. This Rule does not apply to private settlement agreements and shall not be interpreted as approving confidentiality provisions in private settlement agreements where the parties agree to have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP, without court involvement. The enforceability of those provisions is governed by general legal principles, not by this Rule.
(b) Filing Documents under seal. Should Rule 26(b)(5), SCRCP, be inapplicable, and absent another governing rule, statute, or order, any party seeking to file documents under seal shall file and serve a “Motion to Seal.” The motion shall identify, with specificity, the documents or portions of documents for which sealing is considered necessary, shall contain a non-confidential description of the documents, and shall be accompanied by a separately sealed attachment labeled “Confidential Information to be submitted to Court in Connection with the Motion to Seal.” The attachment shall contain the documents for the court to review in camera. The motion shall state the reasons why sealing is necessary, explain why less drastic alternatives to sealing will not afford adequate protection, and address the following factors:
(1) the need to ensure a fair trial;
(2) the need for witness cooperation;
(3) the reliance of the parties upon expectations of confidentiality;
(4) the public or professional significance of the lawsuit;
(5) the perceived harm to the parties from disclosure;
(6) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and
(7) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.
The burden is on the party seeking to seal documents to satisfy the court that the balance of public and private interests favors sealing the documents. In family court matters, the judge shall also consider whether documents: 1) contain material which may expose private financial matters which could adversely affect the parties; and/or 2) relate to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.
Unless otherwise ordered by the court, the clerk of court shall treat the motion to seal in a manner similar to all other motions filed with the court. The motion shall be entered in the Clerk’s File Book and on the Motion Calendar and a hearing on the motion shall be held.
(c) Sealing Settlements. A proposed settlement agreement submitted for the court’s approval shall not be conditioned upon its being filed under seal. Under no circumstances shall a court approve sealing a settlement agreement which involves a public body or institution.
Simultaneously with the filing of a motion seeking court approval of a settlement, or after a settlement has been approved, any party to the litigation may file a motion seeking to have all or part of the settlement filed under seal.
If the agreement is approved, and a motion to seal has been filed, the procedure set forth in (b) above shall be followed with the exception that the factors for sealing a settlement set forth below shall be addressed.
In determining whether to approve the filing of the settlement documents, in whole or in part, under seal, the court shall consider:
(1) the public or professional significance of the lawsuit;
(2) the perceived harm to the parties from disclosure:
(3) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and,
(4) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.
In family court matters, the judge shall also consider whether the settlement: 1) contains material which may expose private financial matters which could adversely affect the parties; and/or 2) relates to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.
(d) Orders Sealing Documents. All orders sealing documents or all or parts of settlements shall set forth with specificity the reasons that require they be sealed.
Rule 41.1 was enacted to set forth with clarity the fact that the courts of this State are presumed to be open and to set forth with particularity when documents and settlement agreements, submitted to a court for approval, may be sealed.
CONDUCT OF TRIAL
(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes or rules of evidence heretofore applied in the courts of this State. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.
(b) Scope of Examination and Cross-Examination. Deleted
(1) Examination, Leading Questions. Deleted
(2) Hostile and Adverse Witnesses. Deleted
(c) Record of Excluded Evidence. Deleted
(c)(1) Reservation of Rights Unnecessary. If an objection has once been made at any stage to the admission of evidence, it shall not be necessary thereafter to reserve rights concerning the objectionable evidence.
(d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but may direct that the matter be heard wholly or partly on oral testimony or depositions.
(f) Interpreters. When a witness does not speak the English language sufficiently to testify, the court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.
(g) Statement of Pleadings to Jury. Counsel for any party may read his pleadings to the jury or make a statement to the jury of the facts alleged in the pleadings and the theory of his case; but counsel shall not argue his case during his opening statement. The pleadings shall not be submitted to the jury for its deliberations.
(h) Examination of Witness. One counsel only for each party shall examine or cross-examine a witness. During examination in open court, the examining counsel shall stand. For the purpose of this subdivision of this rule, two or more parties who have pleaded jointly shall be considered one party.
(i) Argument. Counsel shall not attempt to further argue any matter after he has been heard and the ruling of the court has been pronounced. No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court. No more than two hours shall be taken by each side in final argument or sum up, without permission of the court. Counsel shall not address or refer to by name any member of the jury he is addressing, or otherwise personally appeal to any member thereof.
(j) Right to Open and Close. The moving party upon a motion shall have the right to open and close argument, and the plaintiff shall have the right to open and close upon the trial; except that a party admitting the adverse party's claim in his pleading, and taking upon himself the burden of proof, shall have the like privilege. The party having the right to open shall be required to open in full, and in reply may respond in full but may not introduce any new matter.
(k) Agreements of Counsel. No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record. Settlement agreements shall be handled in accordance with Rule 41.1, SCRCP.
(l) Subsequent Applications for Order After Refusal. If any motion be made to any judge and be denied, in whole or in part, or be granted conditionally, no subsequent motion upon the same state of facts shall be made to any other judge in that action.
(m) Expert Testimony. Deleted
(1) Testimony by Experts. Deleted
(2) Bases of Opinion Testimony by Experts. Deleted
(3) Opinion on Ultimate Issue. Deleted
(4) Disclosure of Facts or Data Underlying Expert Opinion. Deleted
This Rule 43 substantially preserves present State practice as to evidence and conduct of trial. The present Federal Rule differs because of the adoption of the Federal Rules of Evidence in 1975; however, the practitioner will notice little change in present practice. Rules 43(a) through 43(d) restate present State practice under statutes, rules and case law. Rule 43(d) preserves Code § 19-1-40. Rule 43(c)(1) preserves new Circuit Rule 101. Rule 43(f) is new matter but is implied by the court's powers under Title 14, Chapter 15 of the Code. Rule 43(g) preserves Circuit Rule 85, except it prohibits submitting the pleadings to the jury for its deliberations, a needed change to avoid the jury treating pleadings as evidence or having information therefrom contrary to the judge's charge and instructions.
Note to 1986 Amendment:
The amendment to Rule 43(b)(2) clarifies the right of a litigant to call an adverse party, or a witness who may bind an adverse party, and use leading questions and impeach him if justified by the facts. The amendments to paragraphs (f) and (h) correct inadvertent omissions in those paragraphs.
Note to 1987 Amendment:
Rule 43(f) is amended to delete the reference to the hearing impaired whose interpreters are to be provided by statute.
Note to 1990 Amendment:
Rule 43(m) Expert Testimony is taken from Rules 702 to 705 of the Federal Rules of Evidence. The language in subdivision (3) is that of Federal Rule of Evidence 704 prior to its amendment in 1984. The Advisory Committee Notes to the Federal Rules of Evidence provide commentary and useful guidance on the use of expert testimony under this Rule.
Note to 1995 Amendment:
This amendment deleted subsections (b), (c) [but not (c)(1)], and (m). These matters are now governed by the South Carolina Rules of Evidence.
Note to 2003 Amendment:
This amendment changed the title of the Rule to be more reflective of its content and added the final sentence to Rule 43(k), Agreements of Counsel to provide that agreements regarding sealing settlements will be handled according to Rule 41.1, SCRCP.
AGREEMENTS AND SETTLEMENTS
(a) Agreements. No agreement between the parties or their attorneys, in respect to a proceeding before an appellate court shall be considered unless it has been reduced to writing and signed by the parties or their attorneys. After consideration, an appellate court shall either accept or reject the proposed agreement. Should the parties seek approval of a settlement agreement, the procedure set forth in Rule 41.1, SCRCP, shall be followed.
(b) Vacation of Prior Opinions, Orders or Judgments. As part of their agreement, parties may request vacation of previously rendered opinions, orders, and judgments. However, an appellate court retains the authority to deny any request for vacation. If an agreement which includes a request for vacation is rejected, the parties are free, if they so choose, to resubmit their agreement absent the request for vacation.
Note to 2003 Amendment
This amendment added the final sentence to section (a) to provide that agreements regarding sealing settlements will be handled according to Rule 41.1, SCRCP.