South Carolina Motion for Order Compelling Discovery

Introduction

Key Things to Know

1. 1

   A South Carolina motion for an order compelling discovery is brought under Rule 37(a)(2), and what it can reach depends first on Rule 33(b)(9). In a money case where the amount in controversy is not less than $25,000, in any action for declaratory or injunctive relief, and in the family court, a party may serve additional interrogatories in more than one set, capped at fifty general interrogatories to any one party including subparts. Below that line the standard interrogatories in Rule 33(b) are what you have, unless the court orders additional interrogatories for good cause shown in any case. Rule 33(a) is itself written Except as limited by paragraph (b)(9).

2. 2

   The standard interrogatories are printed in the rule and you do not draft them. Rule 33(b)(1) to (7) ask for witnesses and whether statements were taken, a list of photographs, plats and sketches, treating physicians and hospitals and medical costs in a personal injury case, liability insurers with policy numbers and coverage amounts, an itemized statement of damages excluding pain and suffering, proposed expert witnesses, and a summary of the important facts known to each witness or a copy of their statement. Rule 33(b)(8) is marked defendants only and covers improper identification. So a plaintiff in a small case has seven as of right.

3. 3

   Those answers never go stale by permission. Rule 33(b) provides that the standard interrogatories shall be deemed to continue from the time of service until the time of trial, so that information which comes to the knowledge of a party, a representative or an attorney after the original answers were submitted shall be promptly transmitted to the other party. A correct answer can therefore become a breach without anyone serving anything new, and that is a ground to move that has nothing to do with the original response.

4. 4

   Rule 40(a)(2) puts a drafting requirement on the face of your motion. All motions relating to discovery matters, scheduling orders or emergency matters shall state in the caption: Priority Matter. It is not decoration. Rule 40(h) places every motion on the Nonjury Docket immediately, lets a motion be scheduled for hearing at any time after the notice period the rules require, and gives priority in scheduling to motions designated Priority Matter, which it defines as including emergency matters, discovery motions and requests for Scheduling Orders.

5. 5

   Beyond the caption, South Carolina imposes nothing on this motion. Rule 7(b)(1) requires only that an application to the court for an order be by motion, made in writing unless made during a hearing or trial in open court with a court reporter present, stating with particularity the grounds and setting forth the relief or order sought. There is no prescribed accompanying document and no itemized statement to prepare. The good-faith duty sits elsewhere, on the discovery plan: Rule 26(f) says each party and attorney are under a duty to participate in good faith in the framing of a discovery plan if one is proposed, and Rule 37(e) makes that duty payable.

6. 6

   Rule 37(a)(4) is mandatory both ways and narrower than the federal provision in two respects worth knowing before you file. If the motion is granted the court shall require the party or deponent whose conduct necessitated it, or the party or attorney advising that conduct, to pay the moving party's reasonable expenses incurred in obtaining the order including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. If the motion is denied the same sentence runs against you. There are only those two escapes, and the rule carries no clause firing the award where the discovery simply arrives after the motion was filed.

7. 7

   No South Carolina rule sets a number of days within which this motion must be brought. Rule 33(a) and Rule 34(b) each say only that the submitting party may move for an order under Rule 37(a), with no window attached. Your real dates come from Rule 40 instead. Rule 40(e)(2) requires every party, within 10 days of a request for a Scheduling Order, to file a Response listing all outstanding motions and all discovery remaining to be completed. Rule 40(f) then has the clerk transfer to the Jury Trial Roster any case that has sat on the General Docket for 12 months without a Scheduling Order.

South Carolina Requirements for Motion to Compel

• Whether Rule 33(b)(9) Gave You the Interrogatories in the First Place

  Rule 33(b)(9) opens additional general interrogatories as of right only in actions where the amount in controversy is not less than $25,000, in all actions for declaratory or injunctive relief, and in actions before the family court, and caps them at fifty questions to any one party including subparts except by leave of court on good cause. Below that line you have the standard interrogatories in Rule 33(b), and a plaintiff has seven of them because (b)(8) is marked defendants only. The first sentence of (b)(9) is the way out in any case: the court may order additional interrogatories for good cause shown. Record which category your case falls in before you draft.

• The Words PRIORITY MATTER in the Caption

  Rule 40(a)(2) provides that all motions relating to discovery matters, scheduling orders or emergency matters shall state in the caption: Priority Matter. Put it in the caption block, not in the body. Rule 40(h) is why it matters: every motion goes straight onto the Nonjury Docket, a motion may be scheduled for hearing at any time after the notice period the rules require, and priority in scheduling is given to motions designated Priority Matter, which the rule defines as including discovery motions.

• The Grounds, Stated With Particularity Under Rule 7(b)(1)

  Rule 7(b)(1) is the only form requirement South Carolina puts on this motion: an application to the court for an order shall be by motion which, unless made during a hearing or trial in open court with a court reporter present, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. There is no prescribed accompanying document, no itemized statement and no required certificate. Particularity is therefore the whole discipline: set out each item, the response received and why it does not answer. Rule 37(a)(3) provides that an evasive or incomplete answer is to be treated as a failure to answer.

• The Right Court Under Rule 37(a)(1), Which Is Fixed for a Nonparty Deponent

  Rule 37(a)(1) provides that an application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition in progress, to the court where the deposition is being taken, and that an application for an order to a deponent who is not a party shall be made to the court in the place where the deposition is being taken. The official Note to Rule 37 adds the geography for the nonparty case: the circuit court in the place where the deposition is being taken, usually the county of residence of the deponent.

• Proof That the Response Period Had Run, With Any Written Rule 6(b) Extension

  Rule 33(a) gives 30 days after service of the interrogatories, except that a defendant may answer or object within 45 days after service of the summons and complaint. Rule 34(b) and Rule 36(a) carry the same pair. Rule 6(b) allows the time to be extended by written agreement of counsel for an additional period not exceeding the original time provided in the rules, or by the court for cause shown, and Rule 6(b)'s Note describes that as one limited extension by agreement. State the computation. No South Carolina rule sets a period within which this motion must be brought; your real dates come from Rule 40(e)(2)'s Scheduling Order procedure and Rule 40(f)'s transfer of any case left 12 months on the General Docket without one.

• Your Requests-to-Admit Count, If That Is Part of the Dispute

  Rule 36(c) caps the total number of all requests to admit to one party at twenty, including subparts, except by leave of court upon good cause shown, and exempts requests to admit the genuineness of documents or tangible things from any numerical limit. Count before you argue about an objection. Note also that this motion is the wrong vehicle for them: Rule 36 is not among the rules Rule 37(a)(2) names, an unanswered request is admitted at 30 days with nothing to file, and an inadequate answer goes to the Rule 36(a) motion to determine the sufficiency of the answers or objections.

• Whether the Failure Is a Breach of the Continuing Duty in Rule 33(b)

  Rule 33(b) provides that the standard interrogatories shall be deemed to continue from the time of service until the time of trial of the action, so that information which comes to the knowledge of a party, or a representative or attorney, after original answers have been submitted shall be promptly transmitted to the other party, and Rule 26(e) extends the same duty to requests under Rules 31, 33, 34 and 36. If the answer was accurate when served and is wrong now, identify what the party learned and roughly when, because the failure is the failure to transmit rather than the original answer.

• The Expenses Request, and the Two Escape Hatches That Cut Both Ways

  Rule 37(a)(4) provides that if the motion is granted the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award of expenses unjust. If the motion is denied the same sentence runs against the moving party or the attorney advising the motion. Two features of the South Carolina text: there are only those two escapes, and the rule carries no clause firing the award where the discovery simply arrives after the motion was filed. On a motion granted in part and denied in part the court may apportion instead. Rule 37(e) is a separate discretionary route where a party or attorney fails in the Rule 26(f) discovery-plan duty.