1E9Ct5D

SOUTH CAROLINADuke R. HighfieldVictoria L. AndersonYOUNG CLEMENT RIVERS, LLP25 Calhoun Street, Suite 400Charleston, SC 29401Phone (843) 720-5456www.ycrlaw.comdhighfield@ycrlaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?South Carolina does not recognize a specific exemption from discovery for pre-suitinvestigation; rather, a party must assert attorney-client privilege or privilege under thework-product doctrine with regard to any materials it seeks to preserve in confidence.The essential elements giving rise to the [attorney-client] privilege [are]:“(1) Where legaladvice of any kind is sought (2) from a professional legal adviser in his capacity assuch, (3) the communications relating to that purpose (4) made in confidence (5) by theclient, (6) are at his instance permanently protected (7) from disclosure by himself or bythe legal adviser, (8) except the protection be waived.” State v. Doster, 276 S.C. 647,651, 284 S.E.2d 218, 219-20 (1981) (internal citations omitted). The attorney workproduct doctrine protects from discovery documents prepared in anticipation of litigation,unless a substantial need can be shown by the requesting party. See Rule 26(b)(3),SCRCP; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).Generally, in determining whether a document has been prepared “in anticipation oflitigation,” most courts look to whether or not the document was prepared because ofthe prospect of litigation. Tobaccoville USA, Inc. v. McMaster, 387 S.C. 287, 294, 692S.E.2d 526, 530 (2010) (internal citation omitted).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?The scope of discovery is very broad in South Carolina, in that “[p]arties may obtaindiscovery regarding any matter, not privileged, which is relevant to the subject matterinvolved in the pending action.” Rule 26(b)(1), SCRCP. Therefore, written or recordedstatements taken during accident investigation are discoverable unless such fall underthe category of privilege as discussed above.