Seeking protective orders for private investigator information

Since adultery is often a bar to alimony in South Carolina, family law attorneys here frequently employ private investigators (PIs).  However, even when such PIs develop solid evidence of adultery, they rarely develop ironclad evidence.  If the opposing party knows what evidence the PI has developed, s/he can concoct an evasive story that denies the adultery but doesn’t contradict the PI’s evidence.  This is much harder for the opposing party to do if s/he doesn’t know what the PI discovered.

Thus attorneys representing such spouses will attempt to obtain the PI’s report before the client or the client’s paramour are required to testify about the factual circumstances investigated by the PI.  In obtaining this PI information the litigant can develop an “innocent” explanation for the documented behavior.  If, for example, the PI developed solid evidence of inclination but not of opportunity, the litigant can claim s/he never had an opportunity to commit adultery.  If the PI developed solid evidence of opportunity but not of inclination, the litigant can raise the “we’re just friends” defense to explain why s/he is spending the night with some unrelated member of the opposite sex.  If the litigant knows the PI only documented two “dates” with the alleged paramour, s/he can claim those were the only two times the two of them have been together.  However, if the litigant doesn’t know what the PI knows, the litigant doesn’t know how to lie in a manner that the PI cannot contradict.

Obviously the opposing party will be entitled to the PI’s information prior to trial (assuming one intends to use the PI at trial to demonstrate adultery).  However there is a way one can protect the PI’s information from disclosure until one has had an opportunity to question the opposing party and alleged paramour about their relationship: filing a motion for a protective order pursuant to Rule 26, SCRCP to delay disclosure of the PI information.  Rule 26(c) authorizes “for good cause shown … (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;  (3) that the discovery may be had only by a method of discovery other than selected by the party seeking discovery…”  Rule 26(d) authorizes the court to set the “Sequence and Timing of Discovery … in the interests of justice.”

There is no legitimate reason an allegedly adulterous spouse should be entitled to know the evidence against him or her until s/he and the alleged paramour answer questions about their behavior under oath.  Providing this PI information prior to pleadings alleging adultery being responded to, interrogatories on adultery being answered, and depositions on adultery being taken merely encourages lying.  Frequently when I have prevented the other party from seeing my PI information before answering questions about the behavior, I have obtained useful admissions that my PI did not uncover–sometime even obtaining outright admissions of adultery.  In contrast, when the opposing party knows what my PI knows, they generally fail to reveal any useful additional information and deny the adultery while concocting an innocent explanation for the behavior my PI documented.

Merely because the opposing party requests it, one is not required to reveal one’s adultery evidence before one can obtain discovery from the opposing party on the adultery issue.  The option of filing a Rule 26 motion to delay such discovery is available.  Often the mere threat of filing such a motion is sufficient for the opposing party to agree to a delay in revealing the PI information.  The lone time I have actually had to file this motion to delay disclosure of the PI information, the opposing party acknowledged her adultery at the protective order hearing.

Litigants have no right to concoct fictitious testimony around the gaps in the PI’s knowledge.  The ability to seek a protective order delaying PI disclosure can prevent litigants from doing so.

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