The Supreme Court of South Carolina

REQUEST FOR WRITTEN COMMENTS
AND NOTICE OF PUBLIC HEARING

The Supreme Court of South Carolina is considering amendments to Rule 5 of the South Carolina Rules of Criminal Procedure, Rules 16 and 26 of the South Carolina Rules of Civil Procedure, and Rules 701, 702, and 703 of the South Carolina Rules of Evidence. A copy of the proposed amendments is attached to this notice.

Persons desiring to submit written comments regarding the proposed amendments may do so by filing an original and seven (7) copies of their written comments with the Supreme Court. The comments must be sent to the following address:

The Honorable Daniel E. Shearouse
Clerk of Court
Supreme Court of South Carolina
P.O. Box 11330
Columbia, South Carolina 29211

Any written comments must be actually received by the Supreme Court by Tuesday, June 10, 2008.

The Court will hold a public hearing regarding the proposed amendments on Wednesday, July 9, 2008 at 11:00 a.m., in the courtroom of the Supreme Court in Columbia, South Carolina. Those desiring to be heard shall notify the Clerk of the Supreme Court no later than Thursday, July 3, 2008.

Columbia, South Carolina
March 19, 2008


RULE 16, SCRCP
PRE-TRIAL PROCEDURE: FORMULATING ISSUES

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(d) Expert witnesses. Upon motion of a party, the court shall hold a pretrial hearing to determine whether a witness qualifies as an expert and whether the expert's testimony satisfies the requirements of Rules 702, 703 and 704, SCRE. The court shall allow sufficient time for a hearing and shall rule on the qualifications of the witness to testify as an expert and whether or not the testimony satisfies the requirements of Rules 702, 703 and 704, SCRE. The hearing and ruling must be completed no later than the final pretrial conference contemplated pursuant to subsection (a) of this Rule. The trial court's ruling shall set forth the findings of fact and conclusions of law upon which the ruling to admit or exclude expert evidence is based, pursuant to Rule 52(a), SCRCP.

(d) (e) Pre-trial Calendar. The Chief Judge for Administrative Purposes in any circuit may establish a pre-trial hearing calendar on which actions may be placed for consideration as above provided and set thereon all actions in which a pre-trial hearing has been ordered or which, in his discretion, such hearing should be ordered. If a motion for such hearing is pending, the administrative judge shall hear or assign for hearing such motion. If the motion is granted the action shall be placed on the pre-trial calendar.

(e) (f) Status Conferences. Whether or not a formal pre-trial hearing has been held in an action, the trial judge may hold an informal conference before trial to dispose of any remaining matters, including disposition of any pending motions and consideration of settlement. No pre-trial brief or other formal procedures set forth in paragraphs (a) through (d) of this Rule 16 shall be required for such conferences; however, any briefs and memoranda submitted in support of pending motions shall be served on all parties at the same time and by the same means used to serve the court.

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Note to 2008 Amendment

This amendment adds new subsection (d) requiring the court, upon motion of a party, to hold a pre-trial hearing on the admissibility of expert testimony proffered by any other party. The new subsection also requires the court to apply the standards set forth in Rules 702, 703 and 704 of the South Carolina Rules of Evidence, and to abide by the requirements of Rule 52(a), SCRCP, that findings and conclusions be set forth in the trial courtís ruling. Subsections (d) and (e) are renumbered accordingly.
 



RULE 26, SCRCP
GENERAL PROVISIONS GOVERNING DISCOVERY

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

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(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) Whether or not a party elects to request a pretrial hearing as contemplated in Rule 16(d), all parties shall disclose to other parties to the litigation the identity of all persons who may be used at trial to present expert evidence. Except as otherwise stipulated or directed by the court, this disclosure, with respect to a witness who is retained to provide expert testimony at trial in the case or whose duties as an employee of the party regularly involve giving expert testimony, must be accompanied by a written report prepared and signed by the witness or by counsel for the party retaining that expert. The report must contain:

(1) a statement of all opinions to be expressed and the basis and reasons for them;

(2) the data or other information relied on by the witness in forming his opinions;

(3) all exhibits to be used as a summary of or support for the opinions;

(4) the qualifications of the witness, including a current curriculum vitae;

(5) the compensation to be paid to the witness; and

(6) a list of cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.


These disclosures must be made at the times and in the sequence directed by the court. In the absence of other direction from the court or stipulation by the parties, the disclosures must be made on or before three hundred (300) days after the filing of the action or, if the evidence is intended solely to contradict or rebut evidence of an expert on the same subject matter identified by another party pursuant to this subsection, within thirty days after the disclosure made by the other party.

(C) (D) A party may depose a person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required pursuant to subsection (B), the deposition may not be conducted until the report is provided. 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 and customary 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. Provided that the testimony of an expert witness may not be admitted if compensation is contingent on the outcome of a claim, defense, or case with respect to the testimony being offered.

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Note to 2008 Amendment

This amendment adds new subsection (C) which substantially adopts the federal rule on expert witness disclosures. The default timing of the subsection (C) disclosure is the deadline for the ADR Conference pursuant to Rule 5(f), SCADR Rules.


RULE 5, SCRCrimP
TESTIMONY BY EXPERTS

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(h) Expert witnesses. The court in its discretion may hold a pretrial hearing to determine whether a witness qualifies as an expert and whether the expert's testimony satisfies the requirements of Rules 702, 703 and 704, SCRE. The court shall allow sufficient time for a hearing and shall rule on the qualifications of the witness to testify as an expert and whether the testimony satisfies the requirements of Rules 702, 703 and 704, SCRE. The trial court's ruling shall set forth the findings of fact and conclusions of law upon which the ruling to admit or exclude expert evidence is based.


Note to 2008 Amendment

The amendment, similar to Rule 16, SCRCP, as amended in 2008, gives the trial court discretion in holding a pretrial hearing to determine the qualifications of an expert and whether the expert's testimony meets the requirements of Rules 702, 703, and 704, SCRE.


RULE 701, SCRE
OPINION TESTIMONY BY LAY WITNESS

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are (a) rationally based on the perception of the witness, (b) are (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) do not, based on scientific, technical, or other specialized knowledge within the scope of Rule 702, require special knowledge, skill, experience or training.

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Note to 2008 Amendment

Except for the addition of subsection (c) and minor changes in verbiage, this rule is identical to the federal rule, as amended, effective December 1, 2000, and the comments accompanying that amendment are incorporated herein by reference.


RULE 702, SCRE
TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

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Note to 2008 Amendment

The rule is identical to the federal rule as amended, effective December 1, 2000, and to former Rule 43(m)(1), SCRCP, and former Rule 24(a), SCRCrimP. The comments to the 2000 amendment to the federal rule are incorporated herein by reference.
 



RULE 703, SCRE
BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion of inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

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Note to 2008 Amendment

The rule is identical to the federal rule as amended, effective December 1, 2000, and former Rule 43(m)(2), SCRCP, and former Rule 24(b), SCRCrimP. The comments to the 2000 amendment to the federal rule are incorporated herein by reference.