Do all of you attorneys who practice family law in South Carolina know what the current Rule 25, SCRFC, actually says…or have we all now simply become accustomed to announcing to the presiding family court judge at the initial temporary hearing that “(we attorneys) have agreed to ‘open discovery’, your Honor … we’ve agreed to use the Rules of Civil Procedure”.
The current Rule 25, SCRFC, says this:
Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”
Unfortunately, practicing family law in the 21st century, and especially in the larger judicial circuits in South Carolina, is akin to playing some type of “video combat game”, and the notion that family law attorneys will “voluntarily” exchange, well, anything, much less “information and documents”, is practicing family law without a safety net (can you say “malpractice”?). Consequently, the use of the pretrial discovery “sword-and-shield” provided by the Rules of Civil Procedure offers that layer of protection to those of you who might be more, well, litigious-minded (i.e., how many hours can you bill for drafting interrogatories or requests for production of documents or taking the deposition of the guardian ad litem….you know, those things which have a “meaningful” impact on your evaluation of your client’s case and your trial strategy?).
Ask yourself this question: in a calendar year of family court cases, in how many of those cases did the time spent in your “pretrial discovery process” generate a final financial result for your client which exceeded the client’s fees in paying for the time spent by your paralegal and/or you in pretrial discovery? And in how many of those cases did the information produced in your using this same discovery process have a direct result in your client “winning” custody of the children? If the answer to this question was “every time”, then stop reading this blog post, and have a good life.
In 2005 there was an effort among several family court judges to make significant revisions to Rule 25, SCRFC (which I will set forth below). Those efforts were met by varying emotions, reactions, and comments from both the family court bench and bar ranging from benign silence, to scorn, to outright derision. The “framers” of these revisions did NOT take it personally,..however, all subsequent efforts ceased.
And so, here they are once again, over a decade and, perhaps collectively, millions of dollars of your clients’ attorneys’ fees, later….read on at your own peril:
“RULE 25 [Amended]
STATUS CONFERENCES AND PRETRIAL HEARINGS
(a) Status Conferences and Pretrial hearings on contested matters [important disclaimer: see the footnote at the end of this post regarding the family court bench’s current involvement with pretrial hearings and status conferences].
(1) Recognizing the unique nature of the family court’s jurisdiction and the parties’ right to an expeditious, but fair, disposition of their case, the chief family court judge for administrative purposes in each circuit may schedule timely and periodic status conferences and/or pretrial hearings of contested domestic relations cases. In the docketing of all status conferences and pretrial hearings consideration must be given to the statutory requirements and timelines regarding the disposition of all cases involving child abuse and neglect, juveniles, and child support enforcement. The parties and/or their attorneys of record shall be required to participate in good faith in all status conferences and/or pretrial hearings docketed by the court.
(2) The attorneys at such pretrial hearings should be prepared, as to each party, to state the issues to be resolved by the court, to state any stipulations entered into by the parties, to be prepared to exchange lists of prospective exhibits and witnesses, and to make good faith offers of settlement.
(3) Unless required by the chief family court judge for administrative purposes of the circuit, and then only with advanced notice having been afforded all attorneys of record, no pretrial briefs shall be required either for a status conference or a pretrial hearing.
(4) The family court judge conducting the pretrial hearing may in his or her discretion issue a pretrial order which addresses the issues to be resolved by the court and which provides a scheduling order for the disposition of the action.
(5) The chief family court judge for administrative purposes in the circuit may waive attendance of a party and/or an attorney at a status conference or pretrial hearing, but only for good cause shown.
(6) Exception for actions involving self-represented litigants. Upon timely application being made for those actions filed by a self-represented litigant (SRL), the chief family court judge for administrative purposes in the circuit, in his or her discretion, may waive the docketing of a status conference or pretrial hearing. “Timely application” for a waiver is sufficient if a certificate of exemption is filed by the SRL with the clerk of court, and the filing of a formal motion for a waiver will not be required.
(b) Discovery. The prompt, voluntary exchange of information and documents between the parties and the attorneys of record prior to trial is encouraged, and formal pretrial discovery requests shall be limited to the standard interrogatories and production requests set forth below. These discovery limitations do not preclude a party from moving, but only for good cause shown, for an order of a family court judge in the county in which the action is commenced requesting expanded discovery under Rules 26 through 37, SCRCP. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the depositions or discovery.
(1) Standard Interrogatories. a. Witness list: Set forth the name, and a brief summary of the expected testimony, of each anticipated witness, and produce copies of all witness statements if previously taken.
b. Expert witness: Set forth the name, address and area of expertise, and a brief summary of the expected testimony of each expert, and produce copies of all written reports if previously received by the opposing party.
c. Tangible evidence list: Set forth a list of any prepared documents in the possession of the opposing party that relate to the issues to be disposed of by the court.
(2) Standard Production Requests. Produce for inspection and copying the following documents:
a. Exhibits: All anticipated trial exhibits, including photographs, reports, and other prepared documents that relate to the issues before the court.
b. Tax returns: All income tax returns, personal and (if applicable) corporate/business, for the last 3 years, including the most recent return(s).
c. Pay stubs: The last 2 employment pay stubs received by a party-litigant immediately prior to the filing of the action.
d. Account statements: All bank, investment, and other account statements for the 6 months immediately preceding the filing of the action, including those statements which reflect the account balance(s) as close to the date of the filing of the action as possible.
e. Appraisals: All appraisals of real and personal property issued in the last 3 years prior to the date of the filing of the action, if any.
f. Insurance policies: A copy of all insurance policies of a party-litigant relating to life, health, or disability, which may have been in force as of the date of the filing of the action.
g. Debt statements: All statements of debt for the 6 months immediately preceding the filing of the action, including those statements which reflect the account balances as close to the date of the filing of the action as possible (i.e., notes, mortgages, other loans, credit cards, and other debts).
h. Retirement accounts: All retirement and/or pension account statements issued in the 12 months immediately preceding, and up to, the filing of the action, including the summary plan descriptions for each retirement account if available through the plan’s administrator.
i. Investigative reports: If applicable, all private investigative reports supporting a cause of action.
j. School records: If child custody or visitation is in dispute, all school records, including the child’s report cards, any disciplinary reports, and records of attendance for the 12 months immediately preceding the filing of the action.
k. Health records: If child custody or visitation is in dispute, all physicians, counselors, and other medical and/or mental health records of the child for the 2 years immediately preceding the filing of the action.
(3) Discovery Updates. Standard discovery requests shall be deemed to continue from the time of service of the summons and complaint until the time of the trial of the action, so that information or documents which come to the knowledge or possession of a party or his/her attorney, after original answers and responses have been submitted, shall be promptly transmitted to the other party.”
Now, do I truly feel or believe that anyone practicing family law in this State – either as a judge or an attorney – will embrace these suggested “amendments”. Of course not. Change is hard, and embracing “change” is even harder…and if there is one “constant” in the practice of family law it is, well, “constancy”. And while no family law attorney or, for that matter, family court judge ever uses Rule 25, it has been constantly with us for decades. [I did also find it noteworthy that in a very recent South Carolina Supreme Court decision, filed on November 16, 2016, the opinion included this reference: “We also conclude Respondent’s issuance of the subpoenas contravened Rule 25, SCRFC, which prohibits discovery in the family court without a court order or a stipulation by both parties, since neither condition was in effect when Respondent issued the subpoenas.”]
Good luck out there.
 Realizing that “status conferences and pretrial conferences” are considered to be “family court relics”, and have been essentially banished to the back benches, only to be utilized by your circuit’s chief administrative family court judges to address case scheduling “issues”, I had recently inquired of an excellent family court judge (whose judgment I value) how the family court bench dealt with “pretrial conferences”, and this was the response in part:
“As you know, pre-trial conferences were requested all of the time in the past. Now, they are scheduled only if there is some issue that requires the court’s attention, and it usually involves a docketing issue (so it has to be set before the administrative judge). When I was the administrative judge, if there was an old case that did not seem to be moving and I did not know why or if an attorney asked for a multi-day hearing which was going to cause a scheduling nightmare – I would request a pre-trial conference just to help with the scheduling issue. But the pre-trial conference was about scheduling – not the merits of the case. I do not think that the docketing clerks will schedule pre-trial conferences now without the administrative judge’s permission.”