RE: REFERRALS TO SPECIAL REFEREES IN DISCOVERY DISPUTES
We issue this administrative order to enjoin the practice in some circuit courts of referring discovery disputes to so-called special referees for resolution.
The power of the circuit court to appoint a referee is governed by Rule 53 of the South Carolina Rules of Civil Procedure. Subsection (b) of the Rule provides only that “causes of action in a case” may be referred under the circumstances listed in the Rule. A discovery dispute is not a “cause of action.” Thus, Rule 53(b) provides no authority for the order of reference in this case.
In matters brought to our attention, the special referee appointed by the circuit court is typically a lawyer. The lawyer assigned to resolve the discovery dispute generally charges his or her customary hourly rate, a fee not contemplated by the parties when they elected to file the action in circuit court. We are mindful of the burden imposed on our circuit judges in resolving discovery disputes. However, while we recognize that discovery disputes can be complicated and time-consuming, it is the duty of the circuit court to address and resolve discovery disputes. We remind the circuit court judges that the seldom-utilized rule for awarding fees and imposing sanctions, SCRCP 37, is available to deter discovery abuses.
The circuit court shall discharge its duty by addressing and resolving discovery disputes. To the extent some circuit courts have utilized the practice of referring discovery disputes to special referees, that practice is enjoined, effectively immediately.
IT IS SO ORDERED.
s/ Donald W. Beatty, C.J.
s/ John W. Kittredge, J.
s/ Kaye G. Hearn, J.
s/ John Cannon Few, J.
s/ George C. James, Jr., J.
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