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South Carolina Supreme Court allows writ of certiorari to challenge discovery order

The September 21, 2009 Supreme Court opinion in Hollman v. Woolfson, 384 S.C. 571, 683 S.E.2d 495 (2009) approves an unusual use of a writ of certiorari: allowing the writ to challenge the circuit court’s ruling compelling discovery.  Typically a party seeking to challenge a lower court’s order compelling discovery must be found in contempt for not complying with the discovery order and then appeal the finding of contempt.  However, actively seeking a finding of contempt against oneself is something few folks want to hazard.

Hollman allowed the writ of certiorari because the order compelled physicians to provide records that would identify their patients.  In authorizing certiorari, the Supreme Court noted that any appeal would be moot if the physicians complied with the discovery order, that the privacy rights of patients is an issue of significant public interest, and issues involving the release of patient information in discovery is arising more often in the courts.

I have had a few cases in which opposing parties have sought discovery that would require revealing the patients of my physician clients or the clients of my attorney clients.  While no such client has ever been ordered to produce such records, if they had been my clients would have had to be found in contempt rather than violate attorney-client or doctor-patient privilege. It is nice to know I could now seek direct review with the Supreme Court should a lower court ever issue an order compelling my client to release such information.

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