Appeal a SC Discovery Order? – A Rock and Hard Place

The South Carolina Supreme Court recently explained how to appeal a discovery order. The case is Davis v. Parkview Apartments, 409 S.C. 266, 762 S.E.2d 535 (2014)  

In Davis, the trial court ordered the plaintiffs to provide discovery and produce documents that the plaintiffs claimed were privileged. The plaintiffs immediately appealed the orders to the Court of Appeals and separately moved the Supreme Court for a writ of prohibition and certiorari.

The Court of Appeals dismissed the appeal, applying the general rule that discovery orders are not immediately appealable. The Supreme Court similarly denied a writ of prohibition and certiorari. See Oncology and Hematology Assoc. of S.C., LLC, v. South Carolina Dept. of Health and Envtl. Control, 387 S.C. 380, 388, 692 S.E.2d 920, 924 (2010)(“Our willingness to review a discovery order by way of a writ of certiorari will be as rare as the proverbial ‘hen’s tooth.’”).

Months after the appellate courts denied immediate review, the trial court gave the plaintiffs 25 more days to comply with the orders. If they did not, the court would dismiss the actions with prejudice and award attorney fees and costs. The plaintiffs appealed this sanctions order, and on appeal attacked the underlying discovery rulings.

The Supreme Court concluded that the appeal was proper, because the sanctions order was a final order, but held that the merits of the discovery orders were not before the Court.

The Supreme Court reasoned that parties have two choices when they want to challenge a discovery order. Parties can comply with the order and so waive any challenge to it on appeal. Or parties can refuse to comply, be held in contempt, and challenge the discovery order in an appeal from the contempt order.

Applying this rule, the Court held that the plaintiffs should have allowed themselves to be held in contempt earlier. Because they did not, the discovery rulings, right or wrong, became the law of the case. The Supreme Court then undertook to review the propriety of the sanction without reviewing the underlying basis for it.

Jusitce Costa Pleicones

Justice Costa M. Pleicones

Justice Pleicones dissented, stating that “the majority is simply wrong” to foreclose challenges to the sanction’s basis. In his view, the plaintiffs followed proper procedure when they ultimately let themselves be held in contempt and then challenged the basis of the sanction on an appeal of the sanction.

I side with Justice Pleicones on this one.

It is bad enough to require that parties allow themselves to be held in contempt before they can appeal a discovery order. Davis suggests that parties must now allow themselves to be held in contempt of each discovery order that they want to challenge — and then take successive appeals on each order.

This piece-meal approach poses problems. An appeal normally deprives the trial court of jurisdiction over the case. Rule 205, SCACR. So once a contempt order is appealed, the entire case will likely be put on hold until the appeal is resolved. The process must then be repeated if the court enters other objectionable discovery orders.

The statute governing appeals counsels against this approach. On appeal of a final judgment, the statute authorizes the Court to “review any intermediate order or decree necessarily affecting the judgment not before appealed from[.]” S.C. Code Ann. § 14-3-330.

The ability to review intermediate orders in an appeal from the final judgment includes intermediate discovery orders. Hamm v. South Carolina Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994).

This seems to fit Davis where the plaintiffs appealed a final judgment — the sanctions order — and asked the Court to review the intermediate discovery orders because they necessarily affected sanctions for failing to comply.

What do you all think? Please leave a reply.

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