Four Things Family Law Attorneys May Not Realize About Civil Procedure Rule 34 (September 2003)

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Published in South Carolina Trial Lawyers Magazine, Summer 2003 and material for South Carolina Bar “Hot Tips” Lecture, September 2003

1. Rule 34 Allows for the Inspection of Tangible Things

While Rule 34 of the South Carolina Rules of Civil Procedure is generally used as a vehicle to obtain the production of documents from the opposing party, it can also be used to require the inspection of “tangible things.” or “to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.”  Rule 34(a), SCRCP.

In the family law context, the ability to inspect “tangible things” or enter the land or property in possession of the opposing party can be a valuable tool. Inspection of the marital home by the party no longer residing there can be used to document the condition of the marital home and marital property within the home.  It can also be used in a custody case to document the child or children’s living arrangements.

Inspection of the other party’s personal, real and business property can be used to document whether a party has fully disclosed the assets in discovery or on the financial declarations.  As one does not have to provide the other party an explanation of why one is seeking inspection, inspection can be used for helpful purposes that might not be apparent to the party whose property is being inspected. For example an inspection of a party’s vehicle might be used to document the lack of a child seat. An inspection of the party’s residence might be used to document the existence of other residents within the home.

2. Rule 34 Does Not Actually Require that Copies of  the Documents Be Provided to the Requesting Party

Rule 34 requires the party responding to the request for production“to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents.” Rule 34 (a), SCRCP.  It does not actually require the responding party to copy the documents; in fact the rule specifically notes that the party making the request is required to do the copying.

Generally, in the interest of civility or comity, it makes sense to provide the requesting party copies of the requested documents. An attorney who makes the other party come and copy his or her client’s documents is likely to find opposing counsel doing the same in return. However, there are three circumstance when it make sense to require the requesting party to copy the requested documents.

One circumstance is when there are numerous documents requested that are of marginal relevance and which the party responding to the request does not intend to use at trial. Rather than not make such documents available for inspection (which would be a violation of the rules) or copying these documents for the requesting party (which would be inconvenient), requiring the requesting party to copy these documents properly places the burden of this type of marginally relevant but voluminous discovery request on the party making the request.

Another circumstance is when one party’s document request is generating numerous times more documents than the other party’s request.  Requiring the party making a substantial document request to go to the trouble of copying the requested documents again places the burden of making the substantial request on the party making the request.

The final circumstance is when the requested document cannot be easily or inexpensively copied (e.g., numerous photographs; audio or video recordings). Again the party making the request for documents that will create substantial expenses to copy should be required to cover that expense.

3. Documents Do Not Have to Be in a Party’s Possession to be Subject to Production

Often responses to requests to produce will noted that there are no documents in a party’s “possession.” This is not the controlling test of whether documents are required to be produced. Rather, the test is whether the requested document is in “the possession, custody or control of the party.” Rule 34(a), SCRCP.   Failure to produce documents in a party’s control merely because they are not within the party’s possession is a violation of discovery rules.  See Rule 37 (a)(3), SCRCP (“an evasive or incomplete answer is to be treated as a failure to answer”).

Many documents may be in a party’s “control” without being in a party’s “possession.”  “Inspection can be had if the party to whom the request is made had the legal right to obtain the document, even though in fact it has no copy.” Wright & Miller Civil Practice & Procedure §2210 at 397.  Most typically, a party’s or a child’s medical or counseling records may be in a party’s control without necessarily being in that party’s possession.  Bank, credit card, personnel, wage educational and business records are frequently in a party’s control without being in that party’s possession.

The test is whether that party has the legal right to obtain them. Thus, tax and hospital records of a party have been held subject to production. Id. at note 5. Records in a possession of a party’s attorney or insurer have generally been held to be subject to production. Id. at notes 6-7.  Be aware that if such records are not within the party’s control, that party is not required to produce them. See e.g., Greene v. Sears, Roebuck & Co., 40 F.R.D. 14 (D.C. Ohio 1966) (office records of physician who examined plaintiff were not subject to production as they were not in plaintiff’s control).

There are three good reasons for seeking documents that are in a party’s control but not possession through a request for production rather than a subpoena to a third party. First, the request for production is less expensive than a subpoena.  Second, some documents, such as counseling record, may not be producible through a subpoena but are subject to requests for production (subject to relevancy, harassment and potential privacy objections).  Finally, some records may be located outside of the court’s jurisdiction and it may be exceedingly difficult if not impossible to properly issue a subpoena for such records.  See Wright & Miller Civil Practice & Procedure §2210 at note 20 (records outside the court’s jurisdiction but in a party’s control are still subject to production).  Frequently cell phone, bank or credit card records may be located out-of-state and it is often easier to request these documents in production than subpoenaing out-of-state records (though, if the company has an in-state agent, service of the subpoena may be had on the agent).

In responding to a request for production when records are in a party’s control but not possession, it is probably sufficient to note which responsive documents can be located at a specific location and address along with providing a release allowing the documents to be produced.

4. There is a Continuing Duty to Supplement Responses to a Request for Production

“[R]equests for discovery under Rule … 34 … shall be deemed to continue from the time of service until the time of trial of the action so that information sought, which comes to the knowledge of a party, or his representative or attorney, after original answers have been submitted, shall be promptly transmitted to the other party.” Rule 26(e), SCRCP.

Some attorneys forget to supplement responses to a request for production as new, responsive documents become available.  Other attorneys simply supplement responses at or on the eve of trial. Neither procedure is correct.  As Rule 26(e) notes, new, responsive documents shall be promptly transmitted to the other party. Evidence which is not timely provided can be excluded at trial.

Disclosure of information between the parties before trial is designed to avoid surprise and to promote decisions on the merits after a full and fair hearing. The duty to provide the requested information continues from the initial request until the time of the trial of the case.  There are times when a party should be permitted to use witnesses, exhibits, photographs, etc. which have not been disclosed before trial because of circumstances arising after the trial has begun, e.g., unexpected testimony.  The decision to admit or exclude the “new” witness, etc. is discretionary with the trial judge.  He should consider the reason the new information was not provided earlier, the purpose of the new information, and the prejudice to the opposing party.

Reed v. Clark,  277 S.C. 310, 286 S.E.2d 384, 38 (1982) (citation omitted).

In complying with the mandates of Rules 26 and 34 of the South Carolina Rules to Civil Procedure, it is best to continuously supplement responses to requests to produce as new documents come into the client’s possession, custody or control or as new responsive documents are created. Further, if there are new documents that would be responsive to one’s discovery request that have not been provided, it is not necessary to send an additional formal discovery request; rather a written request for supplementation suffices (as, under the rules, supplementation should occur without the necessity of a written request).

CONCLUSION

The paper trail a party leaves while living his or her life is often the best evidence of how that life has been lived.   Interrogatories and depositions are helpful in learning the claims the other side will make at trial but rarely produce information helpful to one’s own case. However, properly utilized, document requests and requests for inspection force the opposing party to produce information that can be used in one’s own case-in-chief. They can be the most effective discovery tool in an attorney’s arsenal.