No one enjoys answering discovery—still don’t fight your attorney on responding to it

Posted Friday, February 9th, 2024 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants

One of the least pleasant tasks in any litigation is responding to discovery. Little of what is produced in responding to discovery actually gets used at trial.  The work of responding is cumbersome, time consuming, and discovery request are frequently overly broad and unduly burdensome.  Especially in the family law context, most of the responding and document gathering requires the client’s active participation, which requires an inexperience person to do for the first time what an attorney has been doing myriad times.

However, the fact that most discovery responses provide little of use does not mean that discovery responses are unimportant. In fact, they are vital.  If few of the documents produced in discovery are relevant or useful, certain documents are vital in addressing financial issues: date of filing statements for equitable distribution; social security earnings history statements for alimony; tax returns and pay stubs for support issues.  I’ve won a few custody cases thought written communications between the parties. And occasionally there is a nugget buried in phone or financial records.

Few answers to supplemental interrogatories or responses to requests for admissions provide trial fodder. But enough do that I routinely use the other party’s responses as exhibits at trial. Finally, the witness-list responses to standard interrogatories, and the documents produced in response to the standard interrogatory for “documents … that relate to the claim or defense in the case,” create severe limitations on the witnesses a party can call and the exhibits a party can introduce at trial.

For all of these reasons, family law clients need to treat responding to discovery seriously. The ramification of an untimely response to a request for admission is that the requests can be deemed admitted. Rule 36(a), SCRCP.  Deny a request for admission without good cause and the court can require that party to pay the other party’s reasonable expenses, including attorney’s fees, for proving that fact. Rule 37(c), SCRCP.

Incomplete responses to standard interrogatories are also very problematic.  Fail to list a witness one wishes to call at trial or fail to produce documents one wants to introduce at trial and one can be precluded from calling that witness or introducing that document. Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005); Bensch v Davidson, 354 S.C. 173, 580 S.E.2d 128 (2003).

Further, failure to respond timely or fully to interrogatories and requests for production or admissions can lead to a motion to compel. Rule 37(a), SCRCP.  For the purposes of a motion to compel, an incomplete or evasive response is treated as a failure to respond. Rule 37(a)(3), SCRCP.  The sanctions for a motion to compel start with being required to pay the moving party’s attorney’s fees and end with the striking of pleadings, the conclusive establishment of adverse facts, and/or limitations on presenting evidence at trial. Rule 37(b), SCRCP. A party can even be held in contempt for not answering discovery.  Rule 37(b), SCRCP. I have seen litigants go to jail for refusing to provide complete discovery responses.

I don’t mind defending motions to compel where my client poses legitimate objections to discovery requests. But defending a motion to compel because my client simply failed to respond or responded in a half-hearted manner is a complete waste of resources—my client is likely to pay for my time to defend and the other attorney’s time to prosecute.

Early in my career, I would work with clients on their initial draft of discovery responses but I find that having clients do their initial drafts with me wastes their resources and results in incomplete and inaccurate responses.  Now I provide clients a memo, available below, that explains how I want them to draft initial responses and provide them templates to draft their responses.  This blog is intended to explain why resistance to drafting discovery responses is counterproductive.   Clients don’t like responding to discovery, but I don’t like badgering clients to respond. 

Download (DOCX, 15KB)

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