Do We Modify Or Just Ignore The South Carolina Family Court’s Discovery Rule?

I, for one, always found comfort in the simplicity of this State’s long-standing “discovery rule” for the Family Courts – Rule 25, SCRFC.

“RULE 25

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.”

How times have changed.

In the current 21st century practice of family law in South Carolina no attorney would dare rely upon Rule 25 as the mechanism for engaging in pretrial discovery, and I’m not aware of a single sitting family court judge who strictly enforces the use of this Rule. Rather, due to (1) the very nature of litigation and advocacy in general, (2) the often high stakes involved in marital litigation (whether the issues are child-related or the division of marital assets), and (3) attorneys suing attorneys in legal malpractice actions, the common practice is for the attorney to stand up in family court at a temporary (pendente lite) hearing and announce, “Your Honor, all of the issues are presently contested, except that both attorneys stipulate we will be allowed to use the discovery rules of the South Carolina Rules of Civil Procedure.  By the Court: That request is granted, now please be seated so I can review the parties’ affidavits”.

Rule 25, SCRFC? … long forgotten.

The “Pandora’s Box” of the Family Court – referred to as “pretrial discovery” – is opened, and along with it are your clients’ bank accounts, as the litigation-related costs of discovery move ahead virtually unchecked.

In 2005, Family Court Judge Jerry D. (Jay) Vinson, Jr., and I proposed the following Rule 25 amendments to the South Carolina Conference of Family Court Judges.  Our proposal was defeated unanimously by a voice vote…well, not quite unanimously, Jay and I voted “yes”.

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In the modern-day practice of family law in South Carolina do we modify Rule 25 in a meaningful, useful, and cost-effective way, or do we just ignore it?  I, for one, believe that decision was made a long time ago.