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RULE 26

RULE 26
GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods.  Parties may obtain discovery by one or more of the following methods:  depositions upon oral examination or written questions;  written interrogatories;  production of documents or things or permission to enter upon land or other property, for inspection and other purposes;  physical and mental examinations;  and requests for admissions.  The frequency or intent of use of discovery methods set forth in subdivision (a) shall be limited by the court if it determines that:  (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unreasonably burdensome or expensive taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation.  The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) of this Rule.

Note:

This is the language of Federal Rule 26(a) as amended August 1, 1983.  The second part was added to address the problem of duplicative, redundant, and excessive discovery by encouraging judges to identify instances of needless discovery and to limit the uses of the various discovery devices accordingly.  This rule changes State procedure by permitting discovery by deposition upon written questions and also mental and physical examinations.

(b) Scope of Discovery.  Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General.  Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Note:

This is the language of Federal Rule 26(b).  It is substantially equivalent to the language of Circuit Court Rule 87B with minor editorial changes.  In particular it has the same scope of discovery--"relevant to the subject matter."

(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.  Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.  For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

Note:

This is the language of the Federal Rule 26(b)(2) and authorizes discovery of insurance agreements by any discovery method.  Circuit Court Rule 90(e) presently authorizes an interrogatory to discover the names and addresses of all insurance companies which have liability insurance relating to the claim and the numbers and amounts of the policies.  Thus, this language does not produce any significant change in existing State practice.
           
(3) Trial Preparation:  Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for the trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Note:

This is the language of Federal Rule 26(b)(3).  There is no equivalent Circuit Court Rule on this subject although there is existing common law providing similar protection.  This provision is added to clarify and standardize the law on the issue.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.  Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person.  If the request is refused, the person may move for a court order.  The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.  For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

Note:

This is a continuation of paragraph (b)(3), of the Federal Rule and provides for the discovery of statements by parties and witnesses.  This is comparable to Circuit Court Rule 90(e)(1) which provides for the discovery of the existence of statements taken from witnesses.

(4)(A) Trial Preparation:  Experts.  Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained by any discovery method subject to subdivisions (b)(4)(B) and (C) of this rule, concerning fees and expenses.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. A party is not required to disclose nor produce an expert who was only consulted informally, or consulted and not retained or specially employed.

(C) Upon the request of the party seeking discovery, unless the court determines otherwise for good cause shown, or the parties agree otherwise, a party retaining an expert who is subject to deposition shall produce such expert in this state for the purpose of taking his deposition, and the party seeking discovery shall pay the expert a reasonable fee for time and expenses spent in travel and in responding to discovery and upon motion the court may require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Note:

Rule 26(b)(4) is based upon the comparable Federal Rule.  The language is changed to permit discovery of an expert expected to testify at trial by any means and without any special showing of need.  There is also a requirement that the party is not required to disclose an expert casually or informally consulted or one consulted but not specially employed.  This is similar to the result reached under the federal rules and its Advisory Notes to 26(b)(4)(B).  26(b)(4)(C) is changed to require a party producing an expert for deposition to do so in this state.  The discovering party is specifically made responsible for reasonable fees and expenses incurred in traveling to this state, as well as the time spent in responding to the discovery.

Note to 1986 Admendment:

This amendment to Rule 26(b)(4)(C) replaces the "manifest injustice" standard with that of "good cause shown" to conform to similar references to the standard for controlling discovery practice in other Rules.

(5) Claims of Privilege or Protection of Trial Preparation Materials.

(A) Information Withheld.  When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(B)Information Produced.  If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.  A receiving party may promptly present the information to the court under seal for a determination of the claim.  If the receiving party disclosed the information before being notified, the receiving party must take reasonable steps to retrieve the information.  The producing party must preserve the information until the claim is resolved.

Note to 1996 Amendment:

Rule 26 is amended to add paragraph (b)(5) requiring a party to notify the other parties that it is withholding information otherwise discoverable on grounds of privilege or work product.  The party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.  The rule does not specify the detail required which will depend upon the facts of each case.  The rule applies to material otherwise discoverable, and does not require disclosure of information that is privileged.  A motion challenging the claim of privilege or work product normally is decided by the court after an in camera inspection of the materials.  Non-parties have a similar obligation when responding to a subpoena under Rule 45(d)(2), SCRCP, and there is similar language in the comparable federal rules.
Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure.  The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery.  Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.

(6) Electronically Stored Information.

(A) A party need not provide discovery of electronically stored information from sources that the party identifies to the requesting party as not reasonably accessible because of undue burden or cost.  On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.  If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(6)(B).  The court may specify conditions for the discovery, including allocation of expenses associated with discovery of the electronically stored information.

(B) On motion or on its own motion, the court shall limit the frequency or extent of discovery otherwise allowed by these rules if the court determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.  The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure.  The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery.  Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden by expense, including one or more of the following:  (1) that the discovery not be had;  (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;  (3) that the discovery may be had only by a method of discovery other than selected by the party seeking discovery;  (4) that certain matters not be inquired into or that the scope of the discovery be limited to certain matters;  (5) that discovery be conducted with no one present except persons designated by the court;  (6) that a deposition after being sealed be opened only by order of the court;  (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;  (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
           
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.  The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Note:

This is the language of Federal Rule 26(c).  Exactly the same language was recently adopted as Circuit Court Rule 96.

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

Note:

This is the language of Federal Rule 26(d).  There is no equivalent in the Circuit Court Rules.  The purpose of the paragraph is to prevent the idea of "priority" in the taking of discovery, resulting in delay.  The court however retains power to set the order of discovery if necessary.

(e) Supplementation of Responses.  A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except that requests for discovery under Rules 31, 33, 34, and 36 shall be deemed to continue from the time of service until the time of trial of the action so that information sought, which comes to the knowledge of a party, or his representative or attorney, after original answers have been submitted, shall be promptly transmitted to the other party.

In addition, a party is under a duty seasonably to supplement his response with respect to any question directly addressed to (1) the identity and location of persons having knowledge of discoverable matters, and (2) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

Note:

This Rule 26(e) is the language of Federal Rule 26(e).  A like duty to supplement the special interrogatories permitted under present Circuit Court Rule 90 is imposed by that rule and is substantially the same as the Federal Rule.  In these discovery Rules the Federal language is adopted for all discovery except Rule 33(b) standard interrogatories.  The Circuit Court Rule 90 provision is retained as to answers to those special interrogatories because the interrogatories are limited in number, the continuing duty to update them is not burdensome, and it preserves the existing State practice.

Note to 1996 Amendment:

Rule 26(e) is amended to make applicable the language of Rule 33(b) on the duty to supplement the standard interrogatories to discovery requests under Rule 31 Depositions Upon Written Questions, Rule 33 Interrogatories to Parties, Rule 34 Production of Documents and Tangible Things, and Rule 36 Request for Admission.  Discovery requests under these rules are deemed to be continuing and the responding party must update the answers promptly when new information comes to the attention of the party, a representative of the party or counsel.  This duty to supplement does not apply to discovery under Rule 30 Depositions Upon Oral Examination.  However, there is an additional duty to provide supplemental information on expert witnesses and witnesses with knowledge of the facts of the case regardless of the form of the discovery request.  The obligation to supplement prior discovery responses includes the duty to amend or supplement answers which are found to be incorrect or misleading so former subparagraph (e)(2) has been deleted, as has former subparagraph (e)(3) which is now redundant.

(f) Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery.  The court shall do so upon motion by the attorneys for any party if the motion includes:

(1) A statement of the issues as they then appear;

(2) A proposed plan and schedule of discovery;

(3) Any limitations proposed to be placed on discovery;

(4) Any other proposed orders with respect to discovery;

(5) A statement of any issues relating to discovery of electronically stored information, including the form or forms in which it should be produced;

(6) A statement of any issues relating to claims of privilege or of protection as trial preparation material, including – if the parties agree on a procedure to assert such claims after production – whether the parties wish to have the court include their agreement in an order; and

(7) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.  Each party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party.  Notice of the motion shall be served on all parties.  Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion.

Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action.  An order may be altered or amended whenever justice so requires.  Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial hearing authorized by Rule 16.

Note:

This is the language of Federal Rule 26(f).  Its purpose is to prevent discovery abuse by encouraging the court to intervene when abuse occurs, or when an attorney has failed to obtain the cooperation of opposing counsel and should have the assistance of the court.  Routine matters should be resolved by Rule 26(c) Motions for protective orders or Rule 37 Motions to compel.  The discovery conference is discretionary with the court, and may be combined with a pretrial hearing.

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure.  The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery.  Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.

(g) Signing of Discovery Requests, Responses, and Objections.  Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.  A party who is not represented by an attorney shall sign the request, response, or objection and state his address.  The signature of the attorney or party constitutes a certification in accordance with Rule 11.

Note:

This language is drawn from the first three sentences of Federal Rule 26(g) and has been slightly modified to incorporate reference to Rule 11.  The more strict standard of the Federal Rules contained in Rules 11, 16 and 26 has not been adopted.

(1) Filing, Service and Custody. Except as provided in Rule 30(h), the party requesting discovery shall serve the request on other counsel or parties, but not file the notice or materials or matters discovered.  The requesting party shall retain the originals and shall file the originals with the clerk of court when the same are to be used at a hearing or at trial.

(2) Destruction. One year after the final termination of an action in which discovery other than depositions has been taken, the party taking the other discovery or the clerk of court, as the case may be, may destroy or otherwise dispose of the original discovery requests and responses.

Note:

This paragraph conforms to Circuit Court Rule 97 and provides that, except for videotaped depositions under Rule 30(h), the requesting party retains the original discovery request and response until it is needed for a motion or trial, then it is filed with the court.