The South Carolina motion to compel: no certificate required, and fees are mandatory anyway

Open South Carolina's Rule 37 looking for the sentence about certifying a good-faith conference and you will not find one. There is no such requirement in the rule.

That is not an invitation. Rule 37(a)(4) shifts expenses on every motion, in both directions, and it does so with fewer escapes than the federal rule allows. The discipline in South Carolina comes from the cost of being wrong, not from a box on the first page.

Fees, whichever way it goes

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 to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

And the mirror image:

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

"Shall" both ways, and two exceptions on each side rather than three. The restyled federal rule denies fees to a movant who "filed the motion before attempting in good faith to obtain the disclosure or discovery without court action"; South Carolina has no such clause, because it has no conferral requirement to enforce.

Two consequences follow, and they cut in opposite directions. Failing to confer will not cost you the award if you win. But nothing softens the award against you if you lose, and the award runs against "the moving party or the attorney advising the motion or both of them."

A split result is apportioned: where the motion is granted in part and denied in part, the court may apportion the reasonable expenses among the parties and persons in a just manner.

Where conferring does appear

The obligation exists in South Carolina; it lives one rule earlier. Rule 26(f) lets any party compel a discovery conference — the court "shall" order one on motion — but only if the motion contains seven listed items, and the seventh is a conferral requirement in substance:

(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.

The same subdivision then imposes a duty: "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" another party.

Refusing to engage has a price of its own under Rule 37(e):

If a party or his attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26 (f), the court may, after opportunity for hearing, require such party or his attorney to pay to any other party the reasonable expenses, including attorney's fees caused by the failure

So the structure is the reverse of most states'. Conferring is required to obtain a discovery conference, not to file a motion to compel — and obstruction at the planning stage is separately sanctionable.

The caps, which start most of these fights

South Carolina limits both written instruments, and both limits count subparts.

Twenty requests to admit is among the tightest limits in the country, and it makes the exception at the end of Rule 36(c) worth knowing: "Requests to admit the genuineness of documents or tangible things are not limited to any number of documents or things." Authenticating exhibits does not consume the twenty.

Where a responding party says a request set exceeds the cap, that is an objection to be resolved before the answers are, and the motion should address it head-on rather than treating it as evasion.

The clocks

Which court

Rule 37(a)(1) splits the forum, and the split turns on whether the deposition is still going:

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. 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.

"A deposition in progress" is narrower than the general "matters relating to a deposition" that most states use. Once the deposition has ended, that alternative forum is gone for party discovery. For a nonparty deponent the rule is mandatory: the court where the deposition is being taken.

Evasive answers, and the risk of losing

Rule 37(a)(3) is short and does a lot of work: "For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer." A responsive-looking non-answer is a failure to answer, and the motion should quote this provision where the complaint is about quality rather than absence.

The sentence before it is the warning:

If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26 (c).

The opposing party need not have asked. Losing a motion to compel in South Carolina can produce an order limiting the very discovery you were pursuing — on top of the mandatory fee award.

Once an order is disobeyed

Rule 37(b)(1) makes a refusal to be sworn or to answer, after a direction from the court in the circuit where the deposition is taken, contempt of that court.

Rule 37(b)(2) supplies the sanctions where a party disobeys a discovery order: facts taken as established, preclusion of designated claims or defenses, striking pleadings, staying the proceedings, dismissal, default judgment, and contempt for disobeying anything except an order to submit to a physical or mental examination. Expenses follow "unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

Failure to admit, and failure to appear

Rule 37(c) is the cheapest sanction to obtain, because it is measured by what the proof cost. A party who proves a matter the other side refused to admit may recover the reasonable expenses of making that proof, and the court "shall make the order" unless it finds

(1) the request was held objectionable pursuant to Rule 36 (a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

Rule 37(d) covers the party who does not appear at a properly noticed deposition, or serves no answers or objections at all. The court may impose the (A), (B) and (C) sanctions directly — without any prior order — and expenses follow unless the failure was substantially justified. Silence is treated more seriously than a bad answer, and it is one of the few routes to a serious sanction without an intermediate order.

A short checklist

1. Confer anyway. No certificate is required, but the fee award against a losing movant is mandatory.
2. Check the caps first — fifty interrogatories and twenty requests to admit, subparts included.
3. Remember the document exception to the twenty-request limit.
4. Count 45 days where the responding party is a recently served defendant.
5. Move while the deposition is in progress if you want the alternative forum; it closes when the deposition ends.
6. File nonparty deposition motions where the deposition is being taken.
7. Quote Rule 37(a)(3) where the answer was evasive rather than absent.
8. Weigh the downside: a denied motion draws mandatory fees and may draw a protective order.
9. Use Rule 26(f) where the real problem is that no plan exists — and Rule 37(e) where someone will not help make one.
10. Use Rule 37(d) where nothing at all was served; no prior order is needed.

Where these rules live

• S.C. R. Civ. P. 26 — General Provisions Governing Discovery
• S.C. R. Civ. P. 33 — Interrogatories to Parties
• S.C. R. Civ. P. 34 — Production of Documents and Things
• S.C. R. Civ. P. 36 — Requests for Admission
• S.C. R. Civ. P. 37 — Failure to Make Discovery: Sanctions
• Responding to a South Carolina complaint
• South Carolina summary judgment

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may set discovery deadlines this page does not cover.