Stipulating to family court discovery

Posted Friday, August 5th, 2011 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

Unlike circuit court, there in no automatic discovery in South Carolina’s family court.  See Rule 25, SCRFC.  Most of the time, discovery is ordered at the first temporary hearing.  Often parties (well, the parties’ attorneys) wish to engage in discovery without having a temporary hearing or prior to a temporary hearing.  Other times, the temporary order will not include an order of discovery and the parties (well, again, the parties’ attorneys) later decide they would like discovery.

In these situations, one could file a consent order authorizing discovery but an order isn’t required.  Instead, Rule 25, SCRFC also authorizes discovery “by stipulation of the parties.”  That’s how I typically authorize discovery.

An opposing attorney asked me recently why do discovery by stipulation rather than court order?  Two reasons.   First, one saves the $25.00 motion fee that’s required for any consent order.  Second, it’s quicker.  One doesn’t need to send the order to the court for consideration and execution by a judge and subsequent filing by the clerk; one simply files the stipulation with the clerk.  That saves at least a day and sometimes a week or more.

When agreeing to discovery in family court, there’s no reason to go to the trouble of a consent order when a stipulation will suffice.

2 thoughts on Stipulating to family court discovery

  1. I agree with all that you say but make sure that the stipulation is that “The parties agree that each shall have all rights of discovery and enforcement under Rules 26-37, SCRCP.” You do not want to stipulate to discovery without stipulating to a right of enforcement.

    1. Thomas:

      It is my belief that discovery contains it’s own right of enforcement within SCRCP 37. One can voluntarily do all manner of discovery without a “right” to discovery. By making discovery a “right”–whether through order or through stipulation–one is, by definition and through the application of Rule 37, creating a right of enforcement.

      Have you ever had a judge rule that though the parties had a right to discovery, they lacked the right of enforcement?

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.




Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.