PRE-TRIAL PROCEDURE: FORMULATING ISSUES
(a) Pre-trial Hearings. In any action after the issues are joined by the actual filing and service of all pleadings, the court may in its discretion or upon motion of any party direct the attorneys for the parties to appear before it for a hearing to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The limitation of the time allowed for discovery;
(6) The advisability of reference of issues to a master: (a) for findings to be used as evidence when the trial is to be by jury, or (b) disposition of non-jury issues;
(7) The disposition of pending motions;
(8) Such other matters as may aid in the disposition of the action.
The attorneys at such pre-trial hearing shall be prepared, as to each party, to:
(1) State the facts which can be proven whether or not alleged in the pleadings;
(2) State the questions of law involved, with citations of legal authority substantiating the party's position thereon;
(3) State with particularity all items of damages claimed and the measure of the damages;
(4) Provide copies of all relevant medical statements or records;
(5) Make good faith offers of settlement;
(6) Exchange lists of witnesses, including expert witnesses;
(7) Agree upon all facts not in controversy;
(8) Exchange lists of all exhibits proposed to be offered at trial.
(b) Pre-trial Orders. The court shall make a written order which recites the action, if any, taken at the hearing, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified on motion, or at the trial to prevent manifest injustice. The order may, in the court's discretion, also: (1) provide that exhibits or witnesses not listed at the hearing may not be called or admitted in evidence at the trial, unless such witness or exhibit is discovered after pre-trial hearing and promptly disclosed to opposing parties; (2) provide that all motions pending at the time of the hearing which are not presented for disposition are deemed abandoned; (3) provide that all or part of the pre-trial hearing be continued to a future time, or that additional pre-trial hearings be scheduled to promote the orderly and efficient disposition of the action; (4) establish provisions for disclosure or discovery of electronically stored information; and (5) include any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production.
(c) Pre-trial Briefs. At or prior to a pre-trial hearing, counsel for each party shall provide to the judge a uniform brief containing the matters listed below. The pre-trial brief shall be provided to the judge and served on all parties or counsel of record at the same time and by the same means.
(1) A concise, non-argumentative statement of the facts of the case.
(2) An objective statement of the facts in controversy.
(3) The legal issues involved. This includes the law applicable to the cause of action and the defense.
(4) A listing of exhibits, indicating those to which there is disagreement and a listing of witnesses who may be called and, if available, their address and phone number.
(5) Any unusual problems relating to evidence to be introduced, such as "Business Records as Evidence Act," hearsay, use of depositions, etc.
(6) Any unusual question or matter which should be brought to the attention of the court.
(7) A statement that settlement negotiations were attempted before the date of the pre-trial hearing and the status of settlement negotiations.
The pre-trial brief is solely for the use of the court at the pre-trial hearing, and shall not be filed with or made part of the record in the action.
(d) Pre-trial Calendar. The Chief Judge for Administrative Purposes in any circuit may establish a pre-trial hearing calendar on which actions may be placed for consideration as above provided and set thereon all actions in which a pre-trial hearing has been ordered or which, in his discretion, such hearing should be ordered. If a motion for such hearing is pending, the administrative judge shall hear or assign for hearing such motion. If the motion is granted the action shall be placed on the pre-trial calendar.
(e) Status Conferences. Whether or not a formal pre-trial hearing has been held in an action, the trial judge may hold an informal conference before trial to dispose of any remaining matters, including disposition of any pending motions and consideration of settlement. No pre-trial brief or other formal procedures set forth in paragraphs (a) through (d) of this Rule 16 shall be required for such conferences; however, any briefs and memoranda submitted in support of pending motions shall be served on all parties at the same time and by the same means used to serve the court.
This Rule 16 is similar to the Federal Rule, with the exceptions noted below. The proposal preserves present Circuit Rule 43, as revised in 1981, except to denote the pre-trial as a hearing, and by requiring a pre-trial order, reciting the action taken at the pre-trial hearing. The session is a "hearing" rather than a "conference." Present State pre-trial conferences often do not produce concrete results since no court order follows. Rule 16(e) is added to allow an informal status conference shortly before trial to dispose of any remaining matters. An order may be entered in writing or stated upon the record on any ruling the court deems necessary when this informal conference may be held in the action. The aim of the Rule is to produce a meaningful pre-trial hearing in complex and difficult cases, and to avoid such hearings in routine actions. The allowance for informal conferences immediately before trial enables the court to dispose of remaining pre-trial matters, including settlements, in any and all cases.
The amendment provides that all pre-trial briefs and memoranda, required by 16(c) or permitted under 16(e), be served upon all parties at the same time and by the same means as is used to serve the court. The pre-trial brief is solely for the use of the court and does not restrict a party in the presentation of its case.
The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery. Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.