South Carolina State Highway Dept. v. Booker

Decision Date15 March 1973
Docket NumberNo. 19586,19586
Citation195 S.E.2d 615,260 S.C. 245
CourtSouth Carolina Supreme Court
PartiesSOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. J. Marshall BOOKER, Respondent.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Ellison D. Smith, IV, and Randall T. Bell, Columbia, J. N. Malphrus, Ridgeland, and Bogoslow & Goolsby, Walterboro, for appellant.

Dowling, Dowling, Sanders & Dukes, Beaufort, for respondent.


We are of the opinion that the order of the Honorable William L. Rhodes, Jr., Trial Judge, properly sets forth and disposes all the issues submitted to this Court on appeal.

Let the order of Judge Rhodes be printed as the directive of this Court.


On April 28, 1972, the South Carolina State Highway Department served notice on the Condemnee of its taking of 16.89 acres of land owned by the Condemnee in Jasper County, South Carolina, for use as a Welcome Center. On May 16, 1972, the Board of Commissioners met and found the amount of just compensation, which was later tendered to the Condemnee by check. Within the Statutory time Condemnee appealed bringing the matter into this Court on a trial De novo.

Both the Condemnor and the Condemnee served Interrogatories and started discovery proceedings under the rules provided therefor in this State.

On August 4, 1972, the Condemnee took the oral deposition of Mr. S. O. Holstein, Chief of the Right-of-Way Division of the South Carolina State Highway Department. During that deposition Mr. Holstein refused, on advice of counsel, to produce for inspection certain sketches, maps, pictures, Et cetera enumerated in Condemnor's Answers to Interrogatories on the ground that they were contained in appraisal reports which were privileged. A timely motion was served by Condemnee seeking an Order of this Court requiring the Condemnor to produce said items for inspection.

The Condemnee has served notice on Condemnor's attorneys of his intention to take the oral deposition of Condemnor's expert witnesses. Condemnor has notified Condemnee's attorneys that its expert witnesses will be instructed not to answer questions concerning methods used or work done by the witnesses, or any other questions in regard to land evaluations found by the witnesses, on the grounds that the same are privileged and not discoverable. Condemnee has moved this Court for an Order requiring such expert witnesses to testify on oral depositions, the full and complete truth in response to the questions of Condemnee's attorneys in relation to any appraisal work and property evaluations they may have determined in connection with the property which is the subject of this action.

In addition, Condemnor has moved this Court for an Order limiting the scope of examination of the expert witnesses on the grounds that any appraisal reports that have been or are to be prepared by any of them are privileged documents, and, as privileged documents, neither they nor any of their contents are subject to disclosure within the scope of an oral examination conducted pursuant to Rule 87 of the Circuit Court Rules.

The issues presented by the Motions, and to be decided by this Court, are as follows:

(1) Are sketches, maps, photographs, Et cetera prepared by an expert witness and/or others and used by an expert witness in his investigation into fair market value of a landowner's property, and later contained in his report delivered to the South Carolina State Highway Department, privileged and undiscoverable so as to not be obtainable for inspection by Condemnee under Rule 88 of the Rules of Practice for the Circuit Courts of South Carolina; and

(2) Are appraisal reports and/or their contents prepared by expert real estate appraisers employed by the South Carolina State Highway Department and/or its attorneys privileged information and exempt from discovery on oral examination pursuant to Rule 87 of the Rules of Practice for the Circuit Courts of South Carolina; and

(3) Can Condemnee, during an oral deposition taken pursuant to said Rule 87, question Condemnor's expert real estate appraisers concerning their knowledge of the subject property; their method of appraising the subject property; the comparable sales they considered; their opinions and conclusions of value; and whether they found benefits or severance damages, and if so, to what extent?

The exact questions presented appear to be ones of first impression in the State of South Carolina. The Discovery Rules, Rules 43, 87, 88, 89 and 90 became effective on June 1, 1969, except for Rule 90, which became effective on January 1, 1972.

South Carolina, effective January 1, 1972, first adopted Rule 90 for Interrogatories. The Interrogatories permitted are of a limited nature and allow discovery only of the names and addresses of witnesses, a list of photographs, maps, sketches, and other prepared documents, the names and addresses of insurance companies for liability insurance coverage, and a statement of damages. Rule 90 can be used in any civil action; but Rule 87 can be used only in cases where the amount in controversy is over Ten Thousand ($10,000.00) Dollars, unless otherwise determined by agreement of counsel or by a Court Order.

The case of Hodge v. Myers, 255 S.C. 542, 180 S.E.2d 203 (1971), is the only reported case yet considered by the Supreme Court of South Carolina involving these discovery rules.

The Hodge case turns on the interpretation of Rule 43, the Pre-Trial Conference Rule. In the then absence of Rule 90 concerning Interrogatories, the Trial Judge had ordered both Plaintiff and Defendant, during the pre-trial conference, to provide the other with a list of the names and addresses of all persons known or reasonably believed to have knowledge or information concerning the matter at hand. On appeal by one of the parties, the Supreme Court of South Carolina unanimously affirmed the action of the Trial Judge and in the decision stated in part:

'Our State Court rules do not provide for interrogatories, but the entire thrust of these rules is for full and fair disclosure to prevent a trial from becoming a guessing game or one of surprise for either party.' Hodge at 205.

The Supreme Court in its opinion further stated:

'Since dockets must be kept current largely by settlements, litigants and attorneys should be allowed liberal discovery. . . . Such would, of course, increase the likelihood of fair trial.' Hodge at 206.

During argument on Question (1), Condemnor's attorneys took the position that no 'good cause,' as required by Rule 88, had been shown by the Condemnee for the production of certain maps, sketches, pictures, Et cetera enumerated by Condemnor in its Answer to Condemnee's Interrogatories.

The documents sought are contained in appraisal reports previously delivered to the South Carolina State Highway Department and used by them in their process of evaluating and condemning the Condemnee's property. There can be no question about the relevancy of such documents. They all involve the Condemnee's property and the Condemnor's ultimate conclusion as to 'just compensation'. The Condemnee is entitled, in his preparation of the case, to know what documents, sketches, maps, pictures, Et cetera were relied on by the Condemnor. The State is required to acquire the property at a price which is fair to the taxpaying public, and also the landowner is justly compensated. These are Constitutional requirements and in and of themselves constitute 'good cause'. Const. of S.C., Art. 1, Section 17.

The Condemnee is in Court through no fault of his own, his land is being taken without his consent; he is required to incur considerable expense to prepare for trial. If, through discovery the issues can be narrowed, the same methods of appraising used by both parties, the same comparable sales considered, the same maps and sketches used, then the trial will be shortened, the issues clarified, surprise eliminated and justice accorded. These considerations meet the test of 'good cause'. The question of 'privilege' remains and is treated hereinbelow in connection with the remaining questions.

Questions (2) and (3) involve interpretation of Rule 87. Rule 87, subd. A provides that 'notwithstanding any other rule of this Court or the provisions of any statute, any party may take the testimony of any person, including a party, by deposition upon oral examination for the purpose of discovery. . . .' Rule 87, subd. B provides that 'unless otherwise ordered by this Court, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .'

The key words here are 'privileged' and 'relevant'. As stated above, there is no question about the relevancy of any of the matters sought to be discovered in the Motions now before this Court.

South Carolina recognizes privilege in civil matters in attorney-client relations, husband-wife relations, and priestpenitent relations. The reference to privilege in the matter now being considered refers to attorney-client relations. This privilege is based upon a wise public policy that considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing his secrets to his professional advisor, under the pledge of the law that such confidence shall not be abused by permitting disclosure of such communications. Drayton v. Industrial Life and Health Insurance Company, 205 S.C. 98, 31 S.E.2d 148 (1944) and Strickland v. Capital City Mills, 74 S.C. 16, 54 S.E. 220. The attorney-client privilege is owned by the client and survives his death, but it can be waived by him. Raleigh and C. and R. Company v. Jones, 104 S.C. 332, 88 S.E. 896 (1916).

The cases cited above involved confidential communications to an attorney by one seeking legal advice and not matters prepared under the direction of an agency of the State of South Carolina for its use in...

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