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Aug. 23, 2024

Amendment Strengthens Attorney-Expert Communication Protections in South Carolina

By William Neinast, Madison Register

Many South Carolina court litigators have experienced the frustration of navigating South Carolina’s lax standard for the discoverability of expert witness communications and draft reports. Experts used to the protections of federal practice and the rules of other jurisdictions have often unwittingly created discoverable documents incorporating facts unknown to the opposition, or even reflecting trial strategy.

However, a major recent change to Rule 26 of the South Carolina Rules of Civil Procedure has afforded greater protection for expert communications and has brought the State Rules closer in line to federal practice. Newly added section (b)(4)(D), titled “Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witness,” protects against the discoverability of communications and related documents between counsel and experts. Rule 26(b)(4)(D) now explicitly extends the protections found in sections (b)(3) and (b)(4)(A) to “communications between the party’s attorney and any witness designated as an expert, regardless of the form of the communication, including draft reports.”

A party seeking discovery of expert communications will now have to persuade the court of their substantial need for such communications by meeting the heightened showing requirements of Rule 26(b)(3) and (b)(4)(A). However, practitioners must be wary of enumerated exceptions in Rule 26(b)(4)(D)(i)-(iii), which exclude from this protection communications that “(i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.” These exceptions are identical to those found in Federal Rule of Civil Procedure 26(b)(4)(C)(i-iii).

The discoverability of expert communications in South Carolina State court now more closely aligns to the standard set forth in Federal Rule of Civil Procedure 26, which has contained a similar protection for attorney-expert communications since 2010. This amendment will allow experts to communicate their thoughts and opinions more freely, thereby allowing for increased collaboration between attorneys and experts without the fear of such information being discoverable. This amendment will also streamline the trial preparation process by ultimately safeguarding mental impressions of counsel and case strategies that counsel and experts may exchange, while also bolstering congruency across State and federal discovery practice. The South Carolina Supreme Court’s Order amending Rule 26 may be found here.

Established in 1897, Nelson Mullins is a full-service Am Law 100 firm of more than 1,000 attorneys, policy advisors, and professionals with offices across the United States. For more information, go to www.nelsonmullins.com.