How automatic discovery has changed my family law practice

It’s been six months since the South Carolina Supreme Court mandated automatic discovery in family court. I didn’t expect this rule change to change my practice. It has.

As I’ve noted before, serving discovery can be a way of showing the opposing party that one is serious about the litigation and that one has given some thought as to what information might be useful to prevail. Thus, except for cases I expect to be uncontested, I’ve been serving discovery with the initial pleadings. Knowing that there are limitations on the number of supplemental interrogatories and requests for admissions one can issue, I try to hold back on the number I issue until I can determine what is truly contested. However, I try to serve some of each with the initial complaint–and I uniformly issue requests for production and standard interrogatories.

When representing the Defendant, there’s less urgency to issue discovery immediately after being served but a huge advantage to serving discovery within 15 days of service (within ten days if serving by mail). Rules 33, 34, and 36 of the Rules of Civil Procedure allow the Defendant 45 days after service of the summons and complaint to respond to discovery. If one can serve the Defendant’s discovery requests within 15 days of service of the complaint upon the Defendant, the Plaintiff will be required to respond to discovery before the Defendant is required to respond.

At this point, I simply don’t understand why Plaintiff’s attorneys aren’t routinely issuing discovery with complaints in contested cases and why attorneys for Defendants aren’t making the issuing of discovery an immediate priority. But it isn’t happening and that is prejudicing their clients.