Today, we are examining the recent arguments in the South Carolina Supreme Court involving the issue of immediate appealability of discovery orders issued by a circuit judge. Our guest is Collins & Lacy attorney and shareholder, Christian Stegmaier.
Today we are examining the recent arguments in the South Carolina Supreme Court involving the issue of immediate appealability of discovery orders issued by a circuit judge.
In Mosely v. Alston and DeVita Healthcare, the plaintiff alleges injuries arising from a motor vehicle accident involving a patient of the healthcare defendants following the patient’s visit to the defendant’s dialysis facility. Plaintiff asserts the patient was no in a condition to drive following his treatment and that the healthcare defendants were negligent in permitting him to leave the facility and drive.
The healthcare defendants sought review by the Supreme Court of a circuit judge’s order to produce extensive responses to requests for production by the plaintiff regarding, among other things, prior similar incidents at the healthcare defendants’ facilities system-wide. The Supreme Court granted certiorari to review the order. Argument on the matter took place on October 15.
Joining us today to discuss this case and why it should be important to civil defendants is Christian Stegmaier, shareholder at Collins & Lacy and chair of the Firm’s Retail & Hospitality Practice Team. Additionally, Christian is an experienced appellate advocate, having appeared in over 45 appeals before the South Carolina Supreme Court and Court of Appeals, as well at the United States Court of Appeals for the Fourth Circuit.
1-Christian, this case grabbed the attention of a lot of people who watch our appellate courts here in South Carolina. What was the reason for all this attention?
· There are very few interlocutory appeals in South Carolina.
· Discovery orders are not ordinarily immediately appealable. Under the statute that creates appellate jurisdiction, there isn’t any mechanism to appeal a discovery order. In this case, applying common law that has been enunciated in just a few cases in our jurisprudence, the healthcare defendants were able to convince the Supreme Court to hear the appeal at the interlocutory stage by applying commons law principles and asserting the need for review was exceptional.
· The case is an example of what is a simmering tension that exists between the Plaintiff’s Bar and Defense Bar in South Carolina regarding the parameters of discovery in this state.
2-What is that tension?
· Under our rules of civil procedure, the parties may pursue information that is reasonably calculated to lead to the discovery of admissible evidence.
· The reality is that many in the plaintiff’s bar have become very sophisticated when it comes to the prosecution of claims, particularly personal injury claims, and the discovery requests they propound are often very extensive and wide-ranging. To respond to that discovery requires a lot of time and expense. Frequently, civil defendants and their counsel question the validity and efficacy of these requests, especially when considering the time and expense that goes into answering them.
· As a result, there is often a lot of wrangling that goes on in discovery between the parties. As well, defendants can and do put up a lot of objections, which are recognized as valid by the rules. Notwithstanding the validity of these objections, the plaintiff’s bar has been very adroit in attacking these objections as boilerplate and holding their counterparts’ feet to the fire with motions to compel and other procedural maneuvers in order to get what they believe to be the full story.
3-So, let’s talk about the argument at the Supreme Court. What were the major themes and what did the Court focus on?
· The Court granted a common-law writ of certiorari to review a discovery order, directing the parties to brief (1) whether the matter involved exceptional circumstances warranting the issuance of a common-law writ of certiorari; (2) whether a party must be held in contempt for failure to comply with a discovery order before an appeal may be taken to review the order; and (3) if a contempt order is not required before a discovery order may be reviewed on appeal, what limitations should be placed on the ability to immediately appeal a discovery order.
4-Has there been a decision already?
· There has. Justice James asked on the front end of the argument whether the appeal was appropriate at this time. In other words, the question was raised by the Court whether it should have granted cert to begin with. In the end, notwithstanding the extensive argument on the merits of the Circuit Court’s order, the Supreme Court ultimately dismissed the grant of writ of certiorari as improvidently granted, which effectively ended the appeal at this stage. The dispute now returns to the trial court for disposition.
5-In light of the Court’s obvious criticism during the argument of the defendant’s decision to appeal at this time, as well as what the Court articulated regarding the wide scope of discovery, what are the take-home messages for civil defendants?
· Under the current appellate rules, the Court is not inclined to hear interlocutory appeals concerning discovery.
· Understand that both the appellate and trial court judges in this state by and large look at discovery as wide-ranging and are not incredibly inclined to wade into disputes and substantially reduce or diminish a plaintiff’s pursuit of materials and other information “reasonably calculated to lead to the discovery of admissible evidence.”
· Our courts are more and more treating objections to discovery as rote and boilerplate. Therefore, reserve your objections for where it really counts and really matters.
· Perhaps the better strategy is to take to the offensive and to move for a protective order vs. waiting and lodging your objections in your responses.