- CURRENT AS OF: Oct 25th 2014
This Subpoena Guide covers generally applicable statewide rules of practice regarding subpoenas in South Carolina trial courts. Local jurisdictions often have their own rules and procedures developed by judges and clerks that are not reduced to writing, and are subject to change at any time, especially regarding subpoenas to foreign witnesses and subpoenas for use in foreign actions. Therefore, it is always recommended that you consult the clerk's office for the court under whose authority the subpoena will be issued.
Depositions may be taken by the defendant at any time after commencement of the action and by the plaintiff once thirty (30) days have passed since commencement of the action. The plaintiff need not wait thirty (30) days to notice or subpoena a deposition if the defendant has already done so or if the plaintiff is using rule authorized procedures to take an early deposition. SC RCP 30(amended eff 2005).
Ten (10) days notice of intent to take a deposition must be given to every party. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena must be attached to or included in the notice. SC RCP 30 (amended eff 2005); SC RCP 45 (amended eff 2011).
Any subpoena is subject to a motion to quash if it fails to give reasonable notice. SC RCP 45 (amended eff 2011).
A person served with a subpoena to produce or permit inspection and copying of documents and things must object, if at all, within fourteen (14) days after service of the subpoena. However, if the subpoena specifies a time for production/inspection that is sooner than fourteen (14) days after service, objections may be served at any time up until the time specified for production/inspection. SC RCP 45 (amended eff 2011).
Subpoenas may be issued, signed but otherwise in blank, by the clerk of court, and delivered to any party requesting the subpoena for completion and service. Alternatively, subpoenas may be issued and signed by an attorney of record in the action. SC RCP 45 (amended eff 2011).
A subpoena may be used to command each person to whom it is directed to attend and give testimony or produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified. SC RCP 45 (amended eff 2011).
A subpoena can name a public or private corporation, partnership, association or governmental agency as the deponent. Such subpoena must describe with reasonable particularity the matters on which examination is requested. In that event, the named organization must designate one or more officers, directors, managing agents or other persons who consent to testify on its behalf, and can set forth, for each person designated, the matters on which he or she will testify. If the entity to be deposed is not a party to the case, the subpoena should advise the entity of its duty to make such a designation. SC RCP 30 (amended 2005).
A person commanded to produce and permit inspection and copying of designated electronically stored information, books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production, inspection or copying unless commanded to appear for a deposition, hearing or trial. SC RCP 45 (amended eff 2011).
A subpoena for production/inspection may be issued in connection with a command for testimony or on its own. SC RCP 45 (amended eff 2011).
A subpoena commanding attendance at a trial or hearing must issue from the court for the county in which the hearing or trial is to be held. SC RCP 45 (amended eff 2011).
Deposition and/or Production Subpoena to Party
A subpoena for attendance at a deposition must issue from the court for the county in which the deposition is to be taken or in which production or inspection is to be made. SC RCP 45 (amended eff 2011).
Deposition and/or Production Subpoena to Non-Party
A subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection must issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person. SC RCP 45 (amended eff 2011).
Organization of Production
A person responding to a subpoena to produce documents must produce them as they are kept in the usual course of business, or organize and label them to correspond with the categories in the demand. SC RCP 45 (amended 2011).
Make Privilege Claims Expressly and With Particularity
When information or material is withheld on a claim of privilege, the claim must be made expressly and must be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim. SC RCP 45 (amended 2011).
A subpoenaing party must take reasonable steps to avoid imposing undue burden or expense on the subpoenaed person. The court can impose sanctions for a breach of this duty including, but not limited to, lost earnings and a reasonable attorneys' fees. SC RCP 45 (amended 2011).
A person commanded to produce and permit inspection and copying has the right to timely serve a written objection to inspection or copying of any or all of the designated materials or of the premises. If such an objection is made, the subpoenaing party will not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. SC RCP 45 (amended 2011).
On timely motion, the court by which a subpoena was issued (or in the case of a subpoena to a non-party, the court of the county where the non-party resides, is employed or transacts business) can quash, modify or place reasonable conditions on the subpoena if it:
Fails to allow reasonable time for compliance. SC RCP 45 (amended eff 2011).
Requires, in the case of a deposition or production prior to hearing or trial, a non party to travel more than fifty (50) miles from the county of residence or employment or where that person regularly transacts business in person. SC RCP 45 (amended eff 2011).
Requires the disclosure of privileged or protected information and no waiver applies. SC RCP 45 (amended eff 2011).
Subjects the subpoenaed person to an undue burden. SC RCP 45 (amended eff 2011).
Requires disclosure of a trade secret or other confidential research, development or commercial information. SC RCP 45(c)(3)(B)(i).
Requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party. SC RCP 45 (amended eff 2011).
Requires a non-party to incur substantial travel expense. SC RCP 45 (amended eff 2011).
In the case of motions to quash or modify brought under Section B of Rule 45(c)(3), the court may require the subpoenaing party to show a substantial need for the testimony or material that cannot be otherwise met without undue hardship and make assurances that the person to whom the subpoena is addressed will be reasonably compensated before the testimony can be taken. SC RCP 45 (amended eff 2011).
Failure to obey a properly served subpoena constitutes contempt of the court unless the subpoenaed person has an adequate excuse for his or her non-compliance. Adequate excuses include lack of personal service on the subpoenaed person or an attempt to subpoena appearance outside the geographic limits of the court's subpoena powers. SC RCP 45 (amended eff 2011).
Action Outside South Carolina, Witness Inside South Carolina
When a deposition for testimony and/or production needs to be taken in South Carolina for use in an out-of-state action, an attorney licensed to practice law in South Carolina, or the clerk of court, may issue a subpoena, including a subpoena duces tecum. Such subpoenas are subject to the payment of applicable fees and all the normal requirements of Rule 45 for subpoenas generally. SC RCP 28 (amended eff 2003).
Before the clerk or local counsel can issue the subpoena, the party seeking to take the deposition must provide the court with either:
A certified copy of any mandate, writ, or commission issued by a court of record in any other state, territory, district or foreign jurisdiction directing that the deposition be taken or documents or other things produced. SC RCP 28(amended eff 2003). Or
A certified copy of a notice or written agreement filed in a court of record in any other state, territory, district or foreign jurisdiction directing that the deposition be taken or documents or other things produced. SC RCP 28 (amnended eff 2003).
Protections For Subpoenaed Witness
A witness in a deposition taken under Rule 28 may be compelled to appear only in the county where he or she resides, is employed or transacts business in person. On application and good cause shown to the court that authorized the subpoena, the witness or an interested party can obtain protective orders pursuant to South Carolina rules. SC RCP 28 (amended eff 2003).
Witnesses in Rule 28 depositions are entitled to the same compensation as provided to subpoenaed witnesses generally. SC RCP 28 (amended eff 2003).
Remedies for Non-Compliance
If a witness subpoenaed under Rule 28 fails to obey the subpoena or refuses to answer any question propounded upon oral examination, the South Carolina rules on compelling testimony and sanctioning non-compliance apply and can be enforced by the court from which the subpoena was issued. SC RCP 28 (amended eff 2003).
Uniform Interstate Deposition and Discovery Act
Submit Foreign Subpoena to Clerk
To request issuance of a subpoena under this chapter, a party must submit a foreign subpoena to the clerk of court of the county in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this chapter does not constitute an appearance in the courts of this State. SC Code 15-47-120 (amended eff 2010).
Issued by Clerk, Required Contents
When a party submits a foreign subpoena to a clerk of court in this State, the clerk, in accordance with the rules of court, promptly shall issue a subpoena for service upon the person to which the foreign subpoena is directed. The subpoena must incorporate the terms used in the foreign subpoena and contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. SC Code 15-47-120 (amended 2010).
A subpoena issued by a clerk of court under Section 15‑47‑120 (amended 2010) must be served in compliance with the applicable rules of court or statutes relating to the service of a subpoena in this State. SC Code 15-47-130 (amended eff 2010).
Motion for Protective Order, To Quash or Modify
An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under Section 15‑47‑120 (amended eff 2010) must comply with the applicable rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted. SC Code 15-47-150 (amended eff 2010).
Subpoenas must state the name of the action in which issued, the name of the issuing court and the case number. The subpoena must command one or more of the following actions:
Attendance and testimony at a deposition, trial or hearing;
Production or permission to inspect and copy designated books, documents or tangible things in the possession, custody or control of the subpoenaed person;
Permission to inspect a specified physical premise at a specified time.
The text of Rule 45(c) (Protection of Persons Subject to Subpoenas) and Rule 45(d) (Duties in Responding to Subpoena) must be restated verbatim in the subpoena document. SC RCP 45 (amended 2011).
The fee schedule is not available online at this time. Contact the court at (803) 734-1970 for current information on subpoena issuance fees.
Unless the subpoena is at issue in a discovery dispute or contempt proceeding, subpoenas customarily are not filed with the court.
Method of Service
Service of a subpoena is made pursuant to the rules for service of process generally by delivering a copy to the subpoenaed person and, if attendance at a trial, hearing or deposition is commanded, by tendering the statutory witness fees for one day's attendance and the mileage allowed by law. SC RCP 45 (amended eff 2011).
Proof of Service
When necessary, proof of service must be made by the person who made service, in the form of a certified statement of the date and manner of service and of the names of the persons served, filed with the clerk of the court from which the subpoena was issued. SC RCP 45 (amended eff 2011).
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