How many family law attorneys reading this blog believe that it’s now a form of legal malpractice not to request an “open discovery” order (i.e., permission to use the discovery rules set forth in the South Carolina Rules of Civil Procedure) at the earliest possible time and in virtually every family court case? And in what percentage of those cases where you engaged in “open discovery” did you find it to be significantly cost-effective to your client (in other words, by the sole and specific use of pretrial discovery, you were able to achieve a final, financial result for your client which exceeded that client’s costs in attorney’s fees and litigation expenses directly related to the additional time spent in engaging in such pretrial discovery)?
Although there are most always “unintended consequences” flowing from virtually every legislative act and court rule affecting family court processes, “open discovery” in our family courts has clearly resulted in increased litigation costs, more motions to compel, delayed mediations, delayed final hearings, motions to continue for lack of the production of documents, more depositions….on and on.
As you are most probably aware, the long-standing “discovery rule” in our family courts is brief and to the point. Rule 25, South Carolina Rules of Family Court states:
“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.”]
In the practice of present-day family law in South Carolina I’m not aware of a single family court judge or family law attorney who use and rely solely upon Rule 25 to limit or constrict the framework within which to navigate a domestic relations case. I am very much aware, however, that a decade ago there were significant efforts by several family court judges to overhaul and expand Rule 25, all of which were “shot down in flames” by both the bench and bar.
And then along came the case of Ray v. Ray, 647 S.E.2d 237, 374 S.C. 79 (S.C., 2007).
The focus of the Ray opinion dealt with the Supreme Court’s discussion of, and the distinctions made between, “intrinsic and extrinsic fraud” in finding that the wife, post-divorce, had deliberately concealed a potential marital asset from the husband, with the Supreme Court then remanding that case back to the family court to deal with this fraudulent transaction [“Respondent’s actions rose to the level of extrinsic fraud when she engaged in a fraudulent scheme to hide assets from the court and, in doing so, utilized an unknown third party, CVS, not subject to discovery during the litigation. Accordingly, we reverse the family court’s dismissal of this action and remand for further proceedings consistent with this opinion.”].
The Ray case, itself, was a significant Supreme Court opinion, and I often refer to it during mediations where one or both spouses or their attorneys have this “lingering fear” that the other spouse is “deliberately hiding assets”.
However, there was a footnote at the end of that opinion which really caught my attention:
“[2.] Furthermore, we take this opportunity to remind the Bar that parties must avail themselves of the discovery process and be attentive to the warning signs of fraud.
It is the policy of the courts not only to discourage fraud, but also to discourage negligence and inattention to one’s own interests. Courts do not sit for the purpose of relieving parties who refuse to exercise reasonable diligence or discretion to protect their own interests. A party must avail himself of the knowledge or means of knowledge open to him. The court will not protect the person who, with full opportunity to do so, will not protect himself.”
If you didn’t hear warning bells (can you say “legal malpractice”) going off after reading that footnote, then you missed the “warning” entirely…and I would suggest that you re-read the footnote.
In the practice of family law in South Carolina in the 21st century, the Ray case was clearly a herald for “open discovery in family court” – which is most certainly now “the rule” and no longer the exception.