JHM v. South Carolina Department of Social Services et al
Filing
18
ORDER AND OPINION GRANTING IN PART and DENYING IN PART 15 Parties' Joint Motion to Compel Signed by Honorable Richard M Gergel on 8/7/2018.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
J.H.M. by and through her Guardian
ad Litem, John D. Elliot,
Plaintiff,
V.
South Carolina Department of
Social Services, Stephanie Kee
(Adoption Specialists Supervisor),
Reesheda Pringle (Adoption Specialist),
Jessica Edwards (Case Manager),
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2: 17-cv-3437-RMG
ORDER AND OPINION
This matter is before the Court on Plaintiff J.H.M. and Defendant South Carolina
Department of Social Services ("SCDSS") joint motion to compel (Dkt. No. 15). For the reasons
set forth below, the Court grants in part and denies in part the motion to compel.
I.
Background
Plaintiff filed this action on November 14, 2017, in the Dorchester County Court of
Common Pleas, alleging negligence, violation of the South Carolina Tort Claims Act, and a claim
under 42 U.S .C. § 1983 for violation of the Fourteenth Amendment. (Dkt. No. 1-1.) Plaintiffs
claims stem from Defendant's alleged failure to protect and failure to treat JHM while she was in
the custody and care of SCDSS. (Dkt. No. 1-1.) Defendants removed the case to federal court on
December 20, 2017. (Dkt. No. 1.)
The Parties now jointly present to this Court a discovery dispute regarding the appropriate
way to disclose potentially relevant records for other minors who are not a party to this action.
(Dkt. No. 15 at 2.) Specifically, Plaintiff has requested all documents from SCDSS regarding
Plaintiff and her biological family (including siblings) related to placement and treatment
decisions.' (Id.) Plaintiff has consented to redacting and replacing all names with initials. (Id.)
Defendant objects to this request as it would involve other minors who are not party to this action,
and notes that the records for Plaintiff and her siblings may be intermingled with the adoption files
of other children. (Id. at 3.)
II.
Legal Standard
Federal district courts have broad discretion in resolving discovery disputes and deciding
whether to grant or deny a motion to compel. Erdmann v. Preferred Research, Inc. of Ga., 852
F.2d 788, 792 (4th Cir. 1988). Under Federal Rule of Civil Procedure 45, a party may serve a
subpoena for the production of discoverable material on a non-party to the litigation. See, e.g. ,
Sherrill v. DIO Transp., Inc., 317 F.R.D. 609, 612 (D.S.C. 2016). The scope of discovery for a
nonparty litigant under a subpoena issued pursuant to Rule 45 is the same as the scope of a
discovery request made upon a party to the action under Rule 26. See HDSherer LLC v. Nat.
Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013).
A party who has properly served a subpoena "may move the court for the district where
compliance is required for an order compelling production or inspection." Fed. R. Civ. P.
45( d)(2)(B)(i). However, upon "timely motion, the court ... must quash or modify a subpoena
that ... requires disclosure of privileged or other protected matter, if no exception or waiver
applies." Fed. R. Civ. P. 45(d)(3)(A).
III.
Discussion
Defendant argues that this Court should conduct an in camera review prior to disclosing
any of Plaintiffs requested records. Defendants rely on S.C. Code Ann. § 63-7-1990 (the
Children' s Code) and S.C. Code Ann. § 63-9-780, two South Carolina statutes dealing with,
1
The Parties did not submit a copy of the subpoena to the Court.
respectively, the confidentiality of SCDSS records regarding child abuse and adoptions. Both
parties acknowledge that the documents sought in the subpoena fall under the protections of the
Children's Code. (Dkt. No. 15 at 2.) Defendants additionally argue that an in camera review is
warranted because Plaintiffs siblings, and potentially other children, are not parties to this action.
(Id. at 3.) The Parties identified four cases from this Court dealing with this exact issue. Two of
the cases followed South Carolina law, "assuming" that while the procedural aspects of the statutes
were not binding in a federal case, it was still appropriate to conduct an in camera review. See
R.C. v. SCDSS, No. 3: 16-cv-03938-DCC, Dkt. No. 37 (D.S .C. November 2, 2017) (Anderson, J.);
NG. ex rel. Gaymon v. SC Dep 't of Soc. Servs., No. 0:10-CV-02973-CMC, 2011 WL 1642331
(D.S.C. May 2, 2011) (Currie, J.). Two cases held that the federal law of privilege applied, and
the requested records should be disclosed subject to a confidentiality order. See WS. v. Daniels,
No. 8:16-CV-01032-DCC, 2018 WL 690066 (D.S.C. Feb. 1, 2018) (Coggins, J.); WS. v. Daniels,
258 F. Supp. 3d 640 (D.S.C. 2017) (Lewis, J,).
The Court sees no reason to depart from the most recent reasoning articulated by this Court.
The current case involves both federal and state law claims. The Fourth Circuit is clear that "in a
case involving both federal and state law claims, the federal law of privilege applies." WS. v.
Daniels, 258 F. Supp. 3d 640, 644-45 (D.S.C. 2017) quoting Virmani v. Novant Health Inc., 259
F.3d 284, 293 n.3 (4th Cir. 2001). Therefore, the Court will apply the federal law of privilege.
Privilege in federal court is governed by Rule 501 of the Federal Rules of Evidence, which
states that "[t]he common law--as interpreted by United States courts in the light of reason and
experience--govems a claim of privilege unless any of the following provides otherwise: the
United States Constitution; a federal statute; or rules prescribed by the Supreme Court." Fed. R.
Evid. 501.
As noted in this Court's prior decisions, and confirmed again, the Court has been unable to
find any appellate decisions that have recognized a federal common law privilege regarding
records covered by the Children's Code or those covering adoptions. See WS. v. Daniels, 2018
WL 690066, at *2 ("The Court has been unable to find any federal appellate decisions that have,
as a matter of federal common law, recognized privileges of the sort contemplated by the
Children's Code."). Furthermore, at least one court of appeal has declined to recognize a privilege
regarding third-party juvenile records. See Pearson v. Miller, 211 F.3d 57, 72 (3d Cir. 2000)
(declining to recognize a privilege under Rule 501 based on the provisions of Pennsylvania's
Juvenile Act). Therefore, this Court declines to find such a privilege. See Virmani v. Novant
Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) ("[e]videntiary privileges 'are not lightly
created,' . .. because 'privileges contravene the fundamental principle that the public ... has a right
to every man's evidence."') (citations omitted).
This Court is concurrently issuing a Confidentiality Order. The Court therefore holds that
the provisions of that Order sufficiently protects the interests of third-party children, and the Court
finds that an in camera review of the requested records is not required.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the
Parties' joint motion to compel (Dkt. No. 15).
AND IT IS SO ORDERED.
August 2_, 2018
Charleston, South Carolina
Richard Mark Gergel
United States District Court Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?