Could Cayce Public Safety charge lawyers for responding to court discovery requests?

Plain-English summary

In 2010, Cayce's Department of Public Safety asked whether it could charge lawyers and others for staff time and resources spent answering discovery motions, using the same schedule as for public-records requests. The South Carolina AG said it could not. The FOIA fee provision applied to FOIA requests, while the civil discovery rules did not authorize the department to shift the cost of reasonable discovery to the requesting person.

The opinion recognized a different response for an unduly burdensome request: petition the court to limit it. Otherwise, it said a reasonable discovery request should be answered in a timely way at the responding party's own expense.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could the department use its FOIA fee schedule for discovery? A: The AG said no. It treated FOIA fees as limited to FOIA requests rather than litigation discovery.

Who bore the cost of a reasonable discovery response?
A: The opinion said the person or entity asked to produce it bore that cost under the discovery rules it discussed.

What if a request was unusually burdensome?
A: The AG said the department could ask a court to limit the discovery motion. It did not say the department could unilaterally impose a fee instead.

Background and statutory framework

The department acknowledged an obligation to comply with reasonable discovery but said doing so used staff time. The AG compared Rule 26's authority for courts to limit unreasonable discovery with the public-records statute's separate permission to charge search and copy fees. It kept those two routes distinct.

Citations and references

The opinion discussed Rule 26 and Rule 34 of the South Carolina Rules of Civil Procedure and South Carolina Code section 30-4-30(b).

Official title

September 29, 2010 (1)

Requester

the department's ability to charge for time and resources used in satisfying discovery motions. Specifically, "whether or not [the department] can charge attorneys and other persons that make a discovery motion."

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-29-2010-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mcnair-c-e-os-9125-9-29-10-charge-discovery-motions.pdf

Original opinion text

H ENRY M CMASTER
ATTORNEY G ENERAL

September 29, 2010

Charles E. McNair, Director
Cayce Department of Public Safety
PO Box 2004
Cayce, SC 29171
Dear Mr. McNair:
We received your letter requesting an opinion of this Office regarding the department's ability to charge for time and resources used in satisfying discovery motions. You asked "whether or not [the department] can charge attorneys and other persons that make a discovery motion." Additionally, you asked whether the department can apply the same guidelines or pay schedule it uses for Freedom of Information Act (FOIA) requests to discovery motions. As a way of background you explained that the department acknowledges its responsibility "to comply with all [reasonable] discovery motions submitted" but that "it requires time and utilizes [the depaitment's] .resources to satisfy [the discovery request] ." This opinion will address prior opinions of this Office, relevant statutes and caselaw to answer the questions posed above.

Law/Analysis
South Carolina Rules of Civil Procedure, Rule 26 explains the general provisions governing discovery. Rule 26(a) reads as follows: (a)

REMBER'r

Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land

c. D ENNIS B UILDING • POST OFFICE B ox 11549 • COLUMBIA, SC 292 11-1549 • TuLEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. McNair
Page2
September 29, 2010

or other property, for inspection and other purposes; physical and mental examinations; and requests for admissions. The frequency or intent of use of discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unreasonably burdensome or expensive taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) of this Rule. Rule 26, SCRCP (emphasis added). Rule 26 explains that a discovery request must be reasonable, but this rule does not indicate that costs of discovery should be shifted to the requesting party. As noted in Justice Kennedy's dissent, a defendant "may conclude a quick settlement is preferable to the costs of discovery and a protracted trial." Jerman v. Carlisle, McNellie. Rini. Kramer & Ulrich LPA, 130 S.Ct. 1605, 1631 (2010). The costs ofdiscoverymay"force settlement even absent fault or injury," but our litigation system is designed for each party to bear the cost of any reasonable discovery request it is asked to produce. Jerman, 130 S.Ct. 1605, 1628 (2010).

Conclusion
It is the opinion ofthis Office that the Cayce Department of Public Safety cannot charge persons who submit discovery requests. It is permitted under the FOIA statute for government agencies to charge the requestor for the cost of time and resources, but the statute limits such permission to FOIA requests. S.C. Code § 30-4-30(b ). 1 If a discovery request is unduly burdensome, one may petition the court to limit the discovery motion. Otherwise, one asked to satisfy a reasonable discovery

1

In relevant part, S.C. Code § 30-4-30(b) states as follows: "The public body may establish and collect fees not to exceed the actual cost of searching for or making copies of records .... "

Mr. McNair
Page 3
September 29, 2010

request should do so in a timely fashion and at his or her own expense. See, Rule 26, SCRCP and Rule 34, SCRCP. Sincerely, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Leigha Blackwell
Assistant Attorney General