SCRCP 26

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:

depositions upon oral examination or written questions; written interrogatories; production of

documents or things or permission to enter upon land or other property, for inspection and other

purposes; physical and mental examinations; and requests for admissions. The frequency or intent of

use of discovery methods set forth in subdivision (a) shall be limited by the court if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other

source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has

had ample opportunity by discovery in the action to obtain the information sought; or (iii) the

discovery is unreasonably burdensome or expensive taking into account the needs of the case, the

amount in controversy, limitations on the parties' resources, and the importance of the issues at stake

in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a

motion under subdivision (c) of this Rule.

Note:

This is the language of Federal Rule 26(a) as amended August 1, 1983. The second

part was added to address the problem of duplicative, redundant, and excessive

discovery by encouraging judges to identify instances of needless discovery and to

limit the uses of the various discovery devices accordingly. This rule changes State

procedure by permitting discovery by deposition upon written questions and also

mental and physical examinations.

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules,

the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged,

which is relevant to the subject matter involved in the pending action, whether it

relates to the claim or defense of the party seeking discovery or to the claim or

defense of any other party, including the existence, description, nature, custody,

condition and location of any books, documents, or other tangible things and the

identity and location of persons having knowledge of any discoverable matter. It is

not ground for objection that the information sought will be inadmissible at the trial if

the information sought appears reasonably calculated to lead to the discovery of

admissible evidence.

Note:

This is the language of Federal Rule 26(b). It is substantially equivalent to the language

of Circuit Court Rule 87B with minor editorial changes. In particular it has the same

scope of discovery--"relevant to the subject matter."

(2) Insurance Agreements. A party may obtain discovery of the existence and

contents of any insurance agreement under which any person carrying on an

insurance business may be liable to satisfy part or all of a judgment which may be

entered in the action or to indemnify or reimburse for payments made to satisfy the

judgment. Information concerning the insurance agreement is not by reason of

disclosure admissible in evidence at trial. For purposes of this paragraph, an

application for insurance shall not be treated as part of an insurance agreement.

Note:

This is the language of the Federal Rule 26(b)(2) and authorizes discovery of insurance

agreements by any discovery method. Circuit Court Rule 90(e) presently authorizes an

interrogatory to discover the names and addresses of all insurance companies which

have liability insurance relating to the claim and the numbers and amounts of the

policies. Thus, this language does not produce any significant change in existing State

practice.

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this

rule, a party may obtain discovery of documents and tangible things otherwise

discoverable under subdivision (b)(1) of this rule and prepared in anticipation of

litigation or for the trial by or for another party or by or for that other party's

representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)

only upon a showing that the party seeking discovery has substantial need of the

materials in the preparation of his case and that he is unable without undue hardship

to obtain the substantial equivalent of the materials by other means. In ordering

discovery of such materials when the required showing has been made, the court shall

protect against disclosure of the mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a party concerning the litigation.

Note:

This is the language of Federal Rule 26(b)(3). There is no equivalent Circuit Court Rule

on this subject although there is existing common law providing similar protection.

This provision is added to clarify and standardize the law on the issue.

A party may obtain without the required showing a statement concerning the action

or its subject matter previously made by that party. Upon request, a person not a

party may obtain without the required showing a statement concerning the action or

its subject matter previously made by that person. If the request is refused, the person

may move for a court order. The provisions of Rule 37(a)(4) apply to the award of

expenses incurred in relation to the motion. For purposes of this paragraph, a

statement previously made is (A) a written statement signed or otherwise adopted or

approved by the person making it, or (B) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof, which is a substantially verbatim recital of

an oral statement by the person making it and contemporaneously recorded.

Note:

This is a continuation of paragraph (b)(3), of the Federal Rule and provides for the

discovery of statements by parties and witnesses. This is comparable to Circuit Court

Rule 90(e)(1) which provides for the discovery of the existence of statements taken

from witnesses.

(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, and subdivision (b)(4)(D).

(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) 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 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.

(D) Trial-Preparation Protection for Communications Between a

Party's Attorney and Expert Witnesses. Rule 26(b)(3) and Rule

26(b)(4)(A) protect communications between the party's attorney and

any witness designated as an expert, regardless of the form of the

communications, including draft reports, except to the extent that the

communications:

(i) relate to compensation for the expert's study or

testimony;

(ii) identify facts or data that the party's attorney

provided and that the expert considered in forming

the opinions to be expressed; or

(iii) identify assumptions that the party's attorney

provided and that the expert relied on in forming the

opinions to be expressed.

Note:

Rule 26(b)(4) is based upon the comparable Federal Rule. The

language is changed to permit discovery of an expert expected to

testify at trial by any means and without any special showing of need.

There is also a requirement that the party is not required to disclose

an expert casually or informally consulted or one consulted but not

specially employed. This is similar to the result reached under the

federal rules and its Advisory Notes to 26(b)(4)(B). 26(b)(4)(C) is

changed to require a party producing an expert for deposition to do

so in this state. The discovering party is specifically made responsible

for reasonable fees and expenses incurred in traveling to this state, as

well as the time spent in responding to the discovery.

Note to 1986 Amendment:

This amendment to Rule 26(b)(4)(C) replaces the "manifest injustice"

standard with that of "good cause shown" to conform to similar

references to the standard for controlling discovery practice in other

Rules.

Note to 2024 Amendment:

The amendment adding new paragraph (b)(4)(D) incorporates

portions of the 2010 changes to Federal Rule 26(b)(4)(C), which

provide additional protection for communications between lawyers

and expert witnesses. The amendment will allow a freer exchange of

information with an expert in the process of developing her thoughts

and opinions and allow the consideration of the mental impressions

of a lawyer without having to disclose those. These protections do

not apply to the extent the lawyer and the expert communicate about

matters that fall within the three exceptions in subdivisions

(b)(4)(D)(i), (ii) and (iii).

(5) Claims of Privilege or Protection of Trial Preparation

Materials.

(A) Information Withheld. When a party withholds

information otherwise discoverable under these rules

by claiming that it is privileged or subject to

protection as trial preparation material, the party

shall make the claim expressly and shall describe the

nature of the documents, communications, or things

not produced or disclosed in a manner that, without

revealing the information itself privileged or

protected, will enable other parties to assess the

applicability of the privilege or protection.

(B) Information Produced. If information produced

in discovery is subject to a claim of privilege or of

protection as trial preparation material, the party

making the claim may notify any party that received

the information of the claim and the basis for it. After

being notified, a party must promptly return,

sequester, or destroy the specified information and

any copies it has and may not use or disclose the

information until the claim is resolved. A receiving

party may promptly present the information to the

court under seal for a determination of the claim. If

the receiving party disclosed the information before

being notified, the receiving party must take

reasonable steps to retrieve the information. The

producing party must preserve the information until

the claim is resolved.

Note to 1996 Amendment:

Rule 26 is amended to add paragraph (b)(5) requiring a party to notify the other

parties that it is withholding information otherwise discoverable on grounds of

privilege or work product. The party must also provide sufficient information to enable

other parties to evaluate the applicability of the claimed privilege or protection. The

rule does not specify the detail required which will depend upon the facts of each

case. The rule applies to material otherwise discoverable, and does not require

disclosure of information that is privileged. A motion challenging the claim of privilege

or work product normally is decided by the court after an in camera inspection of the

materials. Non-parties have a similar obligation when responding to a subpoena

under Rule 45(d)(2), SCRCP, and there is similar language in the comparable federal

rules.

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil

Procedure concerning electronic discovery are substantially similar to the

corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning

electronic discovery are intended to provide a practical, efficient and cost-effective

method to assure reasonable discovery. Pursuit of electronic discovery must relate to

the claims and defenses asserted in the pleadings and should serve as a means for

facilitating a just and cost-effective resolution of disputes.

(6) Electronically Stored Information.

(A) A party need not provide discovery of

electronically stored information from sources that

the party identifies to the requesting party as not

reasonably accessible because of undue burden or

cost. On motion to compel discovery or for a

protective order, the party from whom discovery is

sought must show that the information is not

reasonably accessible because of undue burden or

cost. If that showing is made, the court may

nonetheless order discovery from such sources if the

requesting party shows good cause, considering the

limitations of Rule 26(b)(6)(B). The court may specify

conditions for the discovery, including allocation of

expenses associated with discovery of the

electronically stored information.

(B) On motion or on its own motion, the court shall

limit the frequency or extent of discovery otherwise

allowed by these rules if the court determines that:

(i) the discovery sought is

unreasonably cumulative or

duplicative, or is obtainable from

some other source that is more

convenient, less burdensome, or less

expensive;

(ii) the party seeking discovery has

had ample opportunity by discovery

in the action to obtain the

information sought; or

(iii) the burden or expense of the

proposed discovery outweighs its

likely benefit, taking into account

the needs of the case, the amount in

controversy, the parties' resources,

the importance of the issues at stake

in the litigation, and the importance

of the proposed discovery in

resolving the issues. The court may

act upon its own initiative after

reasonable notice or pursuant to a

motion under Rule 26(c).

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil

Procedure concerning electronic discovery are substantially similar to the

corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning

electronic discovery are intended to provide a practical, efficient and cost-effective

method to assure reasonable discovery. Pursuit of electronic discovery must relate to

the claims and defenses asserted in the pleadings and should serve as a means for

facilitating a just and cost-effective resolution of disputes.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and

for good cause shown, the court in which the action is pending or alternatively, on matters relating to

a deposition, the court in the circuit where the deposition is to be taken may make any order which

justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue

burden by expense, including one or more of the following: (1) that the discovery not be had; (2) that

the discovery may be had only on specified terms and conditions, including a designation of the time

or place; (3) that the discovery may be had only by a method of discovery other than selected by the

party seeking discovery; (4) that certain matters not be inquired into or that the scope of the discovery

be limited to certain matters; (5) that discovery be conducted with no one present except persons

designated by the court; (6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be

disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified

documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and

conditions as are just, order that any party or person provide or permit discovery. The provisions of

Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Note:

This is the language of Federal Rule 26(c). Exactly the same language was recently

adopted as Circuit Court Rule 96.

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties

and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in

any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise,

shall not operate to delay any other party's discovery.

Note:

This is the language of Federal Rule 26(d). There is no equivalent in the Circuit Court

Rules. The purpose of the paragraph is to prevent the idea of "priority" in the taking of

discovery, resulting in delay. The court however retains power to set the order of

discovery if necessary.

(e) Supplementation of Responses. A party who has responded to a request for discovery with a

response that was complete when made is under no duty to supplement his response to include

information thereafter acquired, except that requests for discovery under Rules 31, 33, 34, and 36 shall

be deemed to continue from the time of service until the time of trial of the action so that information

sought, which comes to the knowledge of a party, or his representative or attorney, after original

answers have been submitted, shall be promptly transmitted to the other party.

In addition, a party is under a duty seasonably to supplement his response with respect to any

question directly addressed to (1) the identity and location of persons having knowledge of

discoverable matters, and (2) the identity of each person expected to be called as an expert witness at

trial, the subject matter on which he is expected to testify, and the substance of his testimony.

Note:

This Rule 26(e) is the language of Federal Rule 26(e). A like duty to supplement the

special interrogatories permitted under present Circuit Court Rule 90 is imposed by

that rule and is substantially the same as the Federal Rule. In these discovery Rules the

Federal language is adopted for all discovery except Rule 33(b) standard

interrogatories. The Circuit Court Rule 90 provision is retained as to answers to those

special interrogatories because the interrogatories are limited in number, the

continuing duty to update them is not burdensome, and it preserves the existing State

practice.

Note to 1996 Amendment:

Rule 26(e) is amended to make applicable the language of Rule 33(b) on the duty to

supplement the standard interrogatories to discovery requests under Rule 31

Depositions Upon Written Questions, Rule 33 Interrogatories to Parties, Rule 34

Production of Documents and Tangible Things, and Rule 36 Request for Admission.

Discovery requests under these rules are deemed to be continuing and the

responding party must update the answers promptly when new information comes to

the attention of the party, a representative of the party or counsel. This duty to

supplement does not apply to discovery under Rule 30 Depositions Upon Oral

Examination. However, there is an additional duty to provide supplemental

information on expert witnesses and witnesses with knowledge of the facts of the case

regardless of the form of the discovery request. The obligation to supplement prior

discovery responses includes the duty to amend or supplement answers which are

found to be incorrect or misleading so former subparagraph (e)(2) has been deleted,

as has former subparagraph (e)(3) which is now redundant.

(f) Discovery Conference. At any time after commencement of an action the court may direct the

attorneys for the parties to appear before it for a conference on the subject of discovery. The court

shall do so upon motion by the attorneys for any party if the motion includes:

(1) A statement of the issues as they then appear;

(2) A proposed plan and schedule of discovery;

(3) Any limitations proposed to be placed on discovery;

(4) Any other proposed orders with respect to discovery;

(5) A statement of any issues relating to discovery of electronically stored information,

including the form or forms in which it should be produced;

(6) A statement of any issues relating to claims of privilege or of protection as trial

preparation material, including – if the parties agree on a procedure to assert such

claims after production – whether the parties wish to have the court include their

agreement in an order; and

(7) A statement showing that the attorney making the motion has made a reasonable

effort to reach agreement with opposing attorneys on the matters set forth in the

motion. Each party and his attorney are under a duty to participate in good faith in

the framing of a discovery plan if a plan is proposed by the attorney for any party.

Notice of the motion shall be served on all parties. Objections or additions to matters

set forth in the motion shall be served not later than 10 days after service of the

motion.

Following the discovery conference, the court shall enter an order tentatively identifying the issues for

discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if

any; and determining such other matters, including the allocation of expenses, as are necessary for the

proper management of discovery in the action. An order may be altered or amended whenever justice

so requires. Subject to the right of a party who properly moves for a discovery conference to prompt

convening of the conference, the court may combine the discovery conference with a pretrial hearing

authorized by Rule 16.

Note:</p

This is the language of Federal Rule 26(f). Its purpose is to prevent discovery abuse by

encouraging the court to intervene when abuse occurs, or when an attorney has failed

to obtain the cooperation of opposing counsel and should have the assistance of the

court. Routine matters should be resolved by Rule 26(c) Motions for protective orders

or Rule 37 Motions to compel. The discovery conference is discretionary with the

court, and may be combined with a pretrial hearing.

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil

Procedure concerning electronic discovery are substantially similar to the

corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning

electronic discovery are intended to provide a practical, efficient and cost-effective

method to assure reasonable discovery. Pursuit of electronic discovery must relate to

the claims and defenses asserted in the pleadings and should serve as a means for

facilitating a just and cost-effective resolution of disputes.

(g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or

response or objection thereto made by a party represented by an attorney shall be signed by at least

one attorney of record in his individual name, whose address shall be stated. A party who is not

represented by an attorney shall sign the request, response, or objection and state his address. The

signature of the attorney or party constitutes a certification in accordance with Rule 11.

Note:

This language is drawn from the first three sentences of Federal Rule 26(g) and has

been slightly modified to incorporate reference to Rule 11. The more strict standard of

the Federal Rules contained in Rules 11, 16 and 26 has not been adopted.

(1) Filing, Service and Custody. Except as provided in Rule 30(h), the party

requesting discovery shall serve the request on other counsel or parties, but not file

the notice or materials or matters discovered. The requesting party shall retain the

originals and shall file the originals with the clerk of court when the same are to be

used at a hearing or at trial.

(2) Destruction. One year after the final termination of an action in which discovery

other than depositions has been taken, the party taking the other discovery or the

clerk of court, as the case may be, may destroy or otherwise dispose of the original

discovery requests and responses.

Note:

This paragraph conforms to Circuit Court Rule 97 and provides that, except for

videotaped depositions under Rule 30(h), the requesting party retains the original

discovery request and response until it is needed for a motion or trial, then it is filed

with the court.

Last amended by order dated April 30, 2024.