C. v. South Carolina Department of Social Services et al
ORDER denying 39 Motion to Quash. Signed by Honorable Donald C Coggins, Jr on 2/14/2018.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
R.C., by and through his guardian ad litem )
John D. Elliott,
Richland County Court Appointed Special )
South Carolina Department of Social
Services and Palmetto Place Emergency
C/A No. 3:16-cv-03938-DCC
This matter is before the Court on Movant Richland County Court Appointed Special
Advocates’ (“CASA”) Motion to Quash Subpoena for Deposition of Lindsey McCallister, filed
December 6, 2017. ECF No. 39. Defendant Palmetto Place Emergency Children’s Shelter
(“Palmetto Place”) filed a Response in Opposition and CASA filed a Reply. The Motion has been
fully briefed and is ripe for consideration.
On November 28, 2017, Palmetto Place issued a subpoena for the deposition of Lindsey
McCallister, a volunteer guardian ad litem (“GAL”) for CASA, who served as a GAL for Plaintiff
during the time of the underlying abuse and neglect action initiated by Defendant South Carolina
Department of Social Services (“SCDSS”) and during the time Plaintiff was in the custody of
SCDSS. ECF No. 39 at 1. Pursuant to the South Carolina Children’s Code, the family court must
appoint a GAL for all children in abuse and neglect proceedings, and the GAL must be represented
by counsel. S.C. Code Ann. § 63-7-1620(1). CASA argues that any information McCallister has
is protected and may not be disclosed pursuant to the Children’s Code. ECF No. 39 at 3.
Moreoever, CASA contends that any information that McCallister possesses is subject to
protections afforded by attorney-client privilege and the work product doctrine. Id. at 4. For the
reasons set forth below, CASA’s Motion to Quash is denied.
Rule 26 of the Federal Rules of Civil Procedure provides that, unless otherwise limited by
court order, “[p]arties may obtain discovery regarding any non-privileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, the importance of the discovery in resolving
the issues, and whether the burden of expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. 26(b)( 1). “The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense” by
forbidding or limiting the scope of discovery. Fed. R. Civ. P. 26(c)(1). “The scope and conduct
of discovery are within the sound discretion of the district court.” Columbus-Am. Discovery Grp.
v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see also United States ex rel. Becker
v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (stating that district courts
are afforded “substantial discretion . . . in managing discovery”).
Rule 30 gives parties broad leave to depose “any person” who may have relevant
information in a case. Fed. R. Civ. P. 30. When a party subpoenas attendance at a deposition, the
party receiving the subpoena may move to quash the subpoena under Rule 45, which requires that
a district court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A).
With respect to CASA’s argument that McCallister is prohibited from sharing any
information by the Children’s Code, the Court finds that the Children’s Code, as a South Carolina
statute, does not dictate federal discovery and privilege law. All privileges asserted in federal court
are governed by Rule 501 of the Federal Rules of Evidence, which provides “[t]he common law—
as interpreted by United States courts in the light of reason and experience—governs 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. This case involves both
federal and state law claims, and the evidence in dispute appears to be relevant to both the state
and the federal claims. The Fourth Circuit Court of Appeals has held that “in a case involving
both federal and state law claims, the federal law of privilege applies.” Virmani v. Novant Health
Inc., 259 F.3d 284, 293 n.3 (4th Cir. 2001). Therefore, for resolution of the present discovery
dispute, concerning material relevant to both federal and state law claims, the Court will apply
federal privilege law.
There is no federally recognized privilege applicable to GALs. Accordingly, the Court
finds that McCallister is subject to being subpoenaed to appear at a deposition. Further, it appears
that McCallister would have information that is both relevant and proportional to the needs of the
The Court also rejects CASA’s argument that McCallister’s testimony should be protected
by attorney-client privilege and the work product doctrine. The Court finds that the work product
doctrine is inapplicable to the issue at bar. See Solis v. Food Emp’rs Labor Relations Ass'n, 644
F.3d 221, 231 (4th Cir. 2011) (“[T]he work product doctrine belongs to the attorney and confers a
qualified privilege on documents prepared by an attorney in anticipation of litigation.”).
With respect to attorney-client privilege, the Court does not take the expansive view put
forth by CASA regarding the scope of this privilege. Pursuant to the Children’s Code, the
responsibilities and duties of a GAL are to:
(1) represent the best interests of the child;
(2) advocate for the welfare and rights of a child involved in an
abuse or neglect proceeding;
(3) conduct an independent assessment of the facts, the needs of the
child, and the available resources within the family and
community to meet those needs;
(4) maintain accurate, written case records;
(5) provide the family court with a written report, consistent with
the rules of evidence and the rules of the court, which includes
without limitation evaluation and assessment of the issues
brought before the court and recommendations for the case plan,
the wishes of the child, if appropriate, and subsequent
disposition of the case;
(6) monitor compliance with the orders of the family court and to
make the motions necessary to enforce the orders of the court or
seek judicial review;
(7) protect and promote the best interests of the child until formally
relieved of the responsibility by the family court.
S.C. Code Ann. § 63-11-510. It appears that a GAL has many duties that would not implicate
attorney-client privilege. However, the Court notes that there are some duties performed by GALs
that could be protected; the Court is not making a determination that McCallister would be barred
from asserting the attorney-client privilege when appropriate during her deposition.
In the event that any portion of McCallister’s deposition containing any identifying
information of any minor child is filed with the Court or used in this litigation, the provisions of
the Confidentiality Order already filed in this case would be applicable to the filing of those
documents. See ECF No. 24. Moreover, the parties should follow the procedure outlined in the
Order of the Honorable Joseph F. Anderson, Jr., which directs the parties to contact chambers by
telephone for instructions prior to filing any confidential document to determine whether redaction
is sufficient. ECF No. 37.
Accordingly, CASA’s Motion to Quash Subpoena for Deposition of Lindsey McCallister
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
February 13, 2018
Spartanburg, South Carolina
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