I recently defended a motion in which the timing of the submitted affidavits has me considering whether South Carolina Rule of Civil Procedure 6(d) violates due process.
An opposing attorney filed a motion for sanctions under Rule 37(b)(2), SCRCP, when my clients failed to answer discovery within the deadline set under a prior court order. As required by Rule 6(d), SCRCP, the moving party submitted a supporting affidavit with the motion. As required by that same rule I served my opposition affidavit two business days prior to the hearing.
However, the opposing attorney also served me with additional affidavits two business days prior to the hearing. This is allowed under Rule 6(d), as the rule specifically states that, “… additional or opposing affidavits may be served not later than two days before the hearing…” (emphasis added). This was the first time I have defended a motion in which the moving party filed additional affidavits two days prior to the hearing.
A moving party’s ability to file a cursory affidavit with the initial motion and then serve the bulk of the supporting affidavits two days before the motion–essentially enabling the moving party to sandbag the defending party–would appear to violate due process. As the South Carolina Supreme Court frequently notes, “[p]rocedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.” Moore v. Moore, 376. S.C. 467, 657 S.E.2d 743 (2008).
Further, the ability to file reply affidavits to these affidavits filed within two days of the hearing is limited, under Rule 6(d), to the moving party. “The moving party may serve reply affidavits at any time before the hearing commences.” (emphasis added). The ability for the moving party to file reply affidavits while the defending party cannot file affidavits responsive to those that the moving party files two days before the hearing certainly violates due process by precluding the defending party from confronting witnesses or introducing evidence to counter the additional affidavits.
Contrast the South Carolina rule with the Federal rule of procedure which states that “Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.” FRCP 6(c)(2). Under the Federal rule, all supporting affidavits must be served with the motion and all opposing affidavits must be served seven days before the hearing. This comports with due process.
In the motion at issue the moving parties’ additional affidavits did not raise any new issues that I felt needed addressing. However, the ability of a moving party to serve additional affidavits two days before the hearing without the defending party having a right to respond is a due process violation. The South Carolina Supreme Court, which oversees changes to the South Carolina Rules of Civil Procedure, should amend Rule 6(d). Until it does, a defending party can probably argue that due process gives that party the right to file reply affidavits to any affidavits the moving party serves shortly before the hearing.