Identify Exhibits in Advance of the Deposition
Rule 30(j)(8) of the South Carolina Rules of Civil Procedure requires deposing counsel to provide or identify all deposition exhibits to opposing counsel. If deposing counsel does not do so two business days before the deposition, Rule 30(j)(8) provides that opposing counsel and the witness “may have a reasonable amount of time to privately discuss the documents” before the witness answers questions concerning the documents. This is an exception to the normal communication rules that prohibit an attorney from communicating substantively with a witness during a deposition. To avoid constant breaks during depositions, deposing counsel should identify potential deposition exhibits.
Rule 30(j)(8) provides that an attorney may comply with the directive to provide deposition exhibits if he “provided” or “otherwise identified” the documents at least two business days before the deposition. No comment to the Rule or decision elucidates exactly what form of identification is sufficient to comply with the Rule. However, the purpose of the Rule is to prevent surprises at depositions and incentivize voluntary disclosure of exhibits before depositions. This suggests that a blanket identification like: “Counsel may use all documents provided in discovery” is inadequate, since it would render Rule 30(j)(8) meaningless. With that in mind, the easiest way to comply with the rule is to identify specific documents (by name or bates number) if they have already been provided to opposing counsel.
Bring Copies of Exhibits!
Rule 30(j)(8) requires an attorney to have a copy of the deposition exhibit for the witness and each attorney present at the deposition. Make sure that you have adequate copies or have identified the exhibits in advance and asked that all counsel bring copies with them to the deposition.