Discovery Sanctions are Not Appealable

The South Carolina Court of Appeals reaffirmed that discovery orders are not appealable. Johnson v. Chaudhry, M.D., Op.No. 2013-UP-176 (S.C. Ct.App. filed May 1, 2013).

In Johnson, the plaintiff apparently missed a deadline in a scheduling order for naming experts. The circuit court denied her motion for an extension and sanctioned her by allowing her to present only one liability expert at trial. She then appealed those orders.

The Court of Appeals dismissed the appeal. It reasoned that discovery orders are not appealable because they neither involve the merits nor affect a substantial right within the meaning of the statute governing appeals. This is in line with unbroken holdings that discovery orders are not immediately appealable. See, e.g., Wiethers, M.D. v. Bon-Secours-St. Francis Xavier, 381 S.C. 332, 673 S.E.2d 417 (2009)(vacating Court of Appeals decision that reviewed an order compelling discovery).

Then how do you get a bad discovery order reviewed?

To appeal, you must wait until a final order on the merits. Once the trial court issues a final order, prior discovery orders may be raised in an appeal from the final order. Hamm v. South Carolina Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994).

For quicker review, you may petition the Supreme Court to issue a common law writ of certiorari. Laffittee v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009)(reviewing on certiorari an order compelling discovery); Wiethers (distinguishing review of discovery orders on appeal and on certiorari).

This writ will be covered in more detail in next Monday’s post.

Any thoughts? Please leave me a reply or reach me here.


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