SC Lawyer, May 2010, #4. Discovery is Alive and Well in Administrative Hearings-At Least in Some Agency Contested Cases.

• Author: By M. Elizabeth Crum

South Carolina Lawyer

2010.

SC Lawyer, May 2010, #4.

Discovery is Alive and Well in Administrative Hearings-At Least in Some Agency Contested Cases

South Carolina LawyerMay 2010Discovery is Alive and Well in Administrative Hearings-At Least in Some Agency Contested CasesBy M. Elizabeth Crum You are a lawyer who routinely practices either in circuit court or federal court and you find yourself with a client who wants you to handle an administrative hearing. Where do you turn to find out what discovery is available in an administrative hearing? The South Carolina Administrative Procedures Act (APA). The APA was significantly amended in 2006 to provide "uniform procedures for contested cases and appeals from administrative agencies and to the extent that a provision of the Act conflicts with existing statutory law or regulation, the provisions of the Act are controlling." 2006 S.C. Acts 387 § 53. This article only covers State administrative agencies whose contested cases are governed by the APA and either heard on the merits by the Administrative Law Court (ALC) or heard on appeal by the ALC. For all contested cases heard before the ALC, the rules governing discovery are uniform. However, for contested cases heard before other State administrative agencies, the rules governing discovery are anything but uniform and are generally limited.

Discovery available generally under the APA

The APA discovery provisions are applicable to all contested case hearings before administrative agencies in the State, with a few notable exceptions, e.g., procurement hearings pursuant to the S.C. Consolidated Procurement Code. The enabling legislation for each agency denotes whether the provisions of the APA are applicable.

The APA authorizes: 1) depositions either by commission or de bene esse, which depositions are subject to the same provisions, conditions and restrictions as those for depositions for civil proceedings under the South Carolina Rules of Civil Procedure (SCRCP) (S.C. Code Ann. § 1-23-320(C) (Supp. 2009)); and 2) the hearing agency to issue subpoenas for attendance and testimony of witnesses and for production and examination of documents, either on the agency's behalf or, upon request, by another party to the proceeding. (S.C. Code Ann. § 1-23-320(D) (Supp. 2009)). A party to a contested case pending before an administrative agency other than the ALC may apply to the ALC for enforcement of or relief from a subpoena issued by the administrative agency as provided for in S.C. Code Ann. § 1-23-600(G) (Supp. 2009). S.C. Code Ann. § 1-23-320(D)(Supp. 2009)

Agencies such as Labor, Licensing and Regulation (LLR) hold their own contested case hearings before the respective licensing boards. The LLR Boards are not subject to the Rules of Procedure of the Administrative Law Court (RPALC) and, absent deposition by commission or de bene esse or subpoena, there is little discovery available prior to the actual contested case hearing. Even deposition by commission and issuance of subpoenas are discretionary with the affected agency. State agencies whose contested case hearings are appealed to the ALC may have their own procedural rules for contested cases, so one should check the respective agency regulations to determine what (if any) discovery provisions, other than those contained in the APA, the agency may have. For example, the S.C. Department of Motor Vehicles has its own hearing procedure rules. See S.C. Dep't of Motor Vehicles v. Russell Randolph Scott, Docket No. 08-ALJ-21-0256-IJ (May 29, 2008).

Discovery available during contested case hearings before the ALC

The APA requires the ALC to adopt procedural rules that are: 1) consistent with the SCRCP and 2) not otherwise contained in the APA. See S. C. Code Ann. § 1-23-650(B) (Supp. 2009). The ALC's rules of procedure are subject to review in the same manner as the rules of procedure promulgated by the Supreme Court. Id. As a general rule, the same methods...