Litigation Requires Attorneys to Work With Each Other
When there is a lawsuit, personal injury lawyers can request the other
side provide information and documents. That process is called discovery.
Recently, the South Carolina Court of Appeals issued a decision that addresses
When the government failed to respond to legitimate discovery, it could
not move forward at trial on the basis that the party serving discovery
failed to move to compel. Discovery is a two way street and both sides
need to work together.
Court of Appeals held:
The text of Rule 37, SCRCP, tells us a party does not need to file a motion
to compel to request a sanction for another party's failure to answer
a properly served discovery request. A party served with written discovery
has a duty to answer it, unless the party objects based on a stated reason
or moves for a protective order.
If no answer, objection, or motion is received, the discovering party may—but
is not required to—move for a court order compelling discovery.
Rule 37(a)(2), SCRCP. The discovering party may also make such a motion
if it believes, in good faith, the answers it has received are incomplete
or the objections improper. Id.; Rule 37(a)(3), SCRCP. The court may then
issue an order compelling discovery; if the order is not obeyed, the court
may take appropriate action, including imposing sanctions pursuant to
Rule 37(a) and (b), SCRCP.
But if a party simply fails to respond to discovery, the discovering party
need not proceed under Rule 37(a) and (b); instead a remedy awaits in
Rule 37(d), which allows "the court . . . on motion" to "make
such orders in regard to the failure as are just." Rule 37(d), SCRCP.
The sanctions authorized by Rule 37(d) are therefore available even to
a discovering party who has not spoken up about his adversary's silence.
The nutshell, silence is not golden and discovery is a two way street.
Justin S. Kahn is a board ceritfied attorney who is interested in various
litigation and technology.