The August 7, 2024, Supreme Court opinion in E.G. and J.J. v. SCDSS, held that adoption records, if relevant, were subject to disclosure in civil litigation discovery—despite a provision in the South Carolina code making such records confidential if held by the South Carolina Department of Social Services (DSS). It further held that protective orders were required if such disclosure was ordered.
E.G. and J.J. stemmed from a lawsuit brought in circuit court on behalf of the two minors stemming from allegations that they were sexually molested while in foster care. Their foster mother had adopted a child, P.M., and the Plaintiff[i] alleged the foster mother and DSS should have known that P.M. had a history of sexually abusing other children. In pursuit of such evidence, Plaintiff issued interrogatories and requests for production on DSS seeking information from DSS’s adoption file related to what each party knew regarding P.M.’s prior sexually aggressive behavior. In particular, the plaintiff requested “the complete copy [of] SCDSS files . . . for all adoptive children of” the foster mother including P.M.
DSS refused to produce the documents, claiming S.C. Code § 63-9-780(C)[ii] gave it blanket protection in civil discovery against having to disclose anything in its files concerning an adopted child. The plaintiff filed a motion asking the circuit court to compel DSS and foster mother to comply with the discovery requests and produce the adoption files. DSS and foster mother each filed motions for a protective order asking that DSS not be required to produce any documents from its adoption files. The circuit court did not rule on these motions. However, the circuit court did issue a “Protective Order” requiring that DSS’s foster care files be produced, other documents from those files be redacted, and some documents not be produced at all because they did not meet the criteria for civil discovery.
As to DSS’s adoption files, with the consent of all parties and the circuit court, the plaintiff then filed an action in family court and a “Motion to Unseal Adoption File for a Limited and Specific Purpose.” The family court denied that motion. It ruled the plaintiff had no legal interest in viewing the records since E.G. and J.J. were not parties to the adoption, and it determined that even if the plaintiff had an interest in the records, he had not demonstrated good cause under section 63-9-780. The plaintiff appealed the family court’s ruling, and the court of appeals affirmed.
The Supreme Court reversed. It noted that Rule 26(b), SCRCP, allows a party to discover all non-privileged information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Therefore, the requested discovery met the “good cause” standard under subsection 63-9-780(C). In so holding, the Supreme Court noted:
DSS’s files and records on P.M.’s adoption will either (1) contain evidence showing that DSS knew or should have known P.M. had a history of sexually abusing children—which would clearly be relevant to support the plaintiff’s claims—or (2) contain no evidence showing P.M. had such a history—which would be equally relevant to refute the plaintiff’s claims. Because an examination of DSS’s files and records is reasonably calculated to lead to the discovery of admissible evidence, the files and records are subject to discovery and good cause exists to permit their inspection.
The Supreme Court rejected DSS’s remaining arguments. DSS argued that only a party to the adoption has a valid interest in accessing the records, and thus, any other litigant seeking discovery categorically cannot demonstrate good cause. The family court accepted that argument, holding the plaintiff’s interest may not even be properly considered by the court. The Supreme Court held that nothing in subsection 63-9-780(C) imposed such a limitation. It recognized that “other parties may have countervailing interests and the statute allows a party to come forward and make a showing of good cause Any party that demonstrates good cause may access the adoption files and records protected by subsection 63-9-780(C) under an appropriate protective order.” (citation omitted).
The Supreme Court rejected DSS’s argument that subsection 63-9-780(D) gives it the discretion to decline to produce information in its files and records and that because DSS has chosen not to produce it, the courts lack the authority to order it to turn over the information. It held “there was no statutory limitation on this Court’s ability to compel an agency to disclose confidential adoption records despite the agency’s exercise of discretion not to do so.”
Finally, DSS argued—and the court of appeals accepted—the plaintiff did not demonstrate good cause because he had not “exhausted the traditional methods of discovery to seek this information.” The Supreme Court rejected this claim for two reasons. First, “DSS conceded at oral argument it would have made the same objection … if the plaintiff sought the information through any other method. Therefore, any other discovery requests seeking the same information would have been futile. Second, and more importantly, the plaintiff asked for the information in the DSS file. While it may be true that some other person or entity has possession of similar or even identical information, it is the information in the file that bears most directly on whether DSS knew P.M. was dangerous to other children. The simple fact the information exists in the abstract has a completely different significance from the fact the information exists in the DSS file.” (emphasis in original).
The opinion concludes by noting the need for protective orders when ordering disclosure of DSS adoption files:
[A] trial court’s finding that DSS’s adoption files and records are discoverable under the Rules of Civil Procedure establishes a sufficient interest on the part of the party seeking the information to permit inspection of the DSS files and records. In holding this, we do not in any way intend to permit the compromise of the “competing” privacy interests. As to those interests, any trial court ordering DSS to permit inspection of its adoption-related files and records in civil discovery must include reasonable provisions in a protective order to preserve the confidentiality of the information in the files. A protective order that appropriately restricts access to the records—by requiring redaction of identifying information, precluding disclosure of non-discoverable information,and controlling disclosure of discoverable information— entirely preserves the confidentiality of these files and records. (citation omitted).
E.G. and J.J. should allow for expanded disclosure of DSS adoption records in civil litigation but will uniformly mandate protective orders when such disclosure is ordered.
[i] The lawsuit was brought by their guardian ad litem and thus the opinion references a single “plaintiff.”
[ii] That subsection reads, “All files and records pertaining to the adoption proceedings in the State Department of Social Services, or in any authorized agency, or maintained by any person certified by the department under the provisions of Section 63-9-360, are confidential and must be withheld from inspection except upon court order for good cause shown.”
