SC Supreme Court Opens Door to Discovery of DSS Adoption Files in Civil Litigation

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SC Supreme Court Opens Door to Discovery of DSS Adoption Files in Civil Litigation

SC Supreme Court Opens Door to Discovery of DSS Adoption Files in Civil Litigation
Published: November 6, 2025 | Family Law Practice Update
E.G. and J.J. v. South Carolina Department of Social Services, 443 S.C. 379, 905 S.E.2d 124 (2024), Opinion No. 28228, Filed: August 7, 2024

Key Holding
The South Carolina Supreme Court held that confidential adoption files maintained by DSS under S.C. Code § 63-9-780(C) are subject to discovery in civil litigation when they meet the criteria for civil discovery under the Rules of Civil Procedure. The Court ruled that satisfying the standard for civil discovery establishes “good cause” under the statute, and that protective orders can adequately preserve confidentiality while allowing discovery.

Background Facts
This case arose from a lawsuit on behalf of two foster children who alleged they were sexually molested and abused by P.M., the adopted minor son of their foster parent, Annie Montgomery. The central allegation was that both Montgomery and DSS knew or should have known that P.M. had a history of sexually abusing other children before placing the foster children in Montgomery’s care.

During discovery, the plaintiffs’ guardian ad litem sought production of DSS’s complete adoption files for Montgomery’s adopted children, including P.M. DSS refused, asserting that S.C. Code § 63-9-780(C) provided blanket protection against disclosure of adoption records in civil discovery. The statute requires that adoption files “are confidential and must be withheld from inspection except upon court order for good cause shown.”

The Court’s Analysis
Civil Discovery Establishes Good Cause
The Supreme Court held that when DSS adoption files and records meet the criteria for civil discovery under Rules 26-37 of the South Carolina Rules of Civil Procedure, “good cause” exists under § 63-9-780(C). The Court reasoned that Rule 26(b) permits discovery of all non-privileged information “reasonably calculated to lead to the discovery of admissible evidence.”

In this case, the adoption files would either:

Contain evidence that DSS knew or should have known about P.M.’s history of abuse (supporting the plaintiff’s claims), or

Contain no such evidence (refuting the plaintiff’s claims)

Either way, the files were clearly relevant and discoverable under the civil rules, thereby establishing good cause under the statute.

No Limitation to Parties of the Adoption
The Court rejected DSS’s argument that only parties to the adoption proceeding have a valid interest in accessing adoption records. The Court noted that the statutory language imposes no such limitation and that “any party that demonstrates good cause may access the adoption files and records.” The Court cited its prior decision in Bradey v. Children’s Bureau of S.C., 275 S.C. 622 (1981), which recognized that “other parties may have countervailing interests.”

No Absolute Agency Discretion
DSS argued that § 63-9-780(D) gave it discretion to decline production and that courts lacked authority to compel disclosure. The Court rejected this argument, citing Doe v. Ward Law Firm, P.A., 353 S.C. 509 (2003), which held there is no “statutory limitation on this Court’s ability to compel” an agency to disclose confidential adoption records.

No Requirement to Exhaust Other Discovery
The Court rejected the Court of Appeals’ reasoning that the plaintiff had not “exhausted the traditional methods of discovery.” The Court noted two critical flaws in this argument:

DSS conceded it would have objected to any discovery method seeking the same information, making other requests futile
The fact that information exists in DSS’s file has different significance than the same information existing elsewhere—it goes to whether DSS itself knew about the danger

The Role of Protective Orders
The Court emphasized that confidentiality concerns can and must be addressed through appropriate protective orders under Rule 26(c). Such orders should:

Require redaction of identifying information
Preclude disclosure of non-discoverable information
Control disclosure of discoverable information
Restrict access to only those who need to review the records
The Court expressed confidence that South Carolina’s circuit and family courts have the experience and capability to craft protective orders that balance discovery needs with confidentiality protection.

Practice Tip: When seeking discovery of DSS adoption files, be prepared to propose a detailed protective order that addresses confidentiality concerns. The Court noted that information like the identities of biological parents would be irrelevant to negligence claims and should be redacted even if other information in the file is discoverable.

Practical Implications for Family Law Practitioners
For Plaintiffs’ Counsel
You can now seek discovery of DSS adoption files in civil litigation when the information is relevant to your claims
Focus your discovery requests on information that meets the Rule 26(b) standard—information reasonably calculated to lead to admissible evidence
Be prepared to work with opposing counsel and the court on an appropriate protective order
Consider carefully what information you actually need—be ready to agree to redaction of irrelevant identifying information

For Defendants and DSS
Blanket objections to discovery of adoption files based solely on § 63-9-780(C) will no longer succeed
Focus on whether the specific information sought meets the civil discovery standard
Work collaboratively to craft protective orders that genuinely protect confidential information while allowing relevant discovery
Consider conducting in camera reviews to identify what information is truly relevant and discoverable

For All Counsel
This decision applies broadly to civil litigation involving DSS records—not just foster care negligence cases
The same principles likely apply to other confidential DSS files beyond adoption records
Courts will expect cooperation in fashioning appropriate protective orders
This is a case of first impression in South Carolina, so cite it prominently in motions to compel or for protective orders

Questions This Case Leaves Open
While this decision provides important clarity, several questions remain:

How will courts balance competing interests in cases involving less serious allegations?
What specific redactions and restrictions will courts typically require in protective orders?
Will this standard apply equally to other confidential government records with similar statutory protection?
How will courts handle situations where the information sought is only marginally relevant?

Conclusion
E.G. and J.J. represents a significant development in South Carolina discovery law. By holding that satisfaction of the civil discovery standard establishes “good cause” under § 63-9-780(C), the Supreme Court has made clear that statutory confidentiality provisions do not create absolute barriers to discovery in civil litigation. However, the decision also emphasizes that courts must carefully protect confidential information through well-crafted protective orders.

For practitioners handling cases involving potential DSS negligence, abuse in foster or adoptive homes, or other matters where DSS records may be relevant, this case provides a clear roadmap for seeking discovery while respecting legitimate confidentiality concerns.

About the Case: This case was heard by the South Carolina Supreme Court on March 26, 2024, and the opinion was filed on August 7, 2024. Justice Few wrote the opinion, with Chief Justice Kittredge and Acting Justices Beatty, McDonald, and Williams concurring.

Citation: E.G. & J.J. v. S.C. Dep’t of Soc. Servs., 443 S.C. 379, 905 S.E.2d 124 (2024).

By Suzanne Klok|2025-11-12T16:51:58+00:00September 15th, 2024|Adoption, Discovery, Family Law|Comments Off on SC Supreme Court Opens Door to Discovery of DSS Adoption Files in Civil Litigation

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SC Supreme Court Opens Door to Discovery of DSS Adoption Files in Civil Litigation
Published: November 6, 2025 | Family Law Practice Update
E.G. and J.J. v. South Carolina Department of Social Services, 443 S.C. 379, 905 S.E.2d 124 (2024), Opinion No. 28228, Filed: August 7, 2024

Key Holding
The South Carolina Supreme Court held that confidential adoption files maintained by DSS under S.C. Code § 63-9-780(C) are subject to discovery in civil litigation when they meet the criteria for civil discovery under the Rules of Civil Procedure. The Court ruled that satisfying the standard for civil discovery establishes “good cause” under the statute, and that protective orders can adequately preserve confidentiality while allowing discovery.

Background Facts
This case arose from a lawsuit on behalf of two foster children who alleged they were sexually molested and abused by P.M., the adopted minor son of their foster parent, Annie Montgomery. The central allegation was that both Montgomery and DSS knew or should have known that P.M. had a history of sexually abusing other children before placing the foster children in Montgomery’s care.

During discovery, the plaintiffs’ guardian ad litem sought production of DSS’s complete adoption files for Montgomery’s adopted children, including P.M. DSS refused, asserting that S.C. Code § 63-9-780(C) provided blanket protection against disclosure of adoption records in civil discovery. The statute requires that adoption files “are confidential and must be withheld from inspection except upon court order for good cause shown.”

The Court’s Analysis
Civil Discovery Establishes Good Cause
The Supreme Court held that when DSS adoption files and records meet the criteria for civil discovery under Rules 26-37 of the South Carolina Rules of Civil Procedure, “good cause” exists under § 63-9-780(C). The Court reasoned that Rule 26(b) permits discovery of all non-privileged information “reasonably calculated to lead to the discovery of admissible evidence.”

In this case, the adoption files would either:

Contain evidence that DSS knew or should have known about P.M.’s history of abuse (supporting the plaintiff’s claims), or

Contain no such evidence (refuting the plaintiff’s claims)

Either way, the files were clearly relevant and discoverable under the civil rules, thereby establishing good cause under the statute.

No Limitation to Parties of the Adoption
The Court rejected DSS’s argument that only parties to the adoption proceeding have a valid interest in accessing adoption records. The Court noted that the statutory language imposes no such limitation and that “any party that demonstrates good cause may access the adoption files and records.” The Court cited its prior decision in Bradey v. Children’s Bureau of S.C., 275 S.C. 622 (1981), which recognized that “other parties may have countervailing interests.”

No Absolute Agency Discretion
DSS argued that § 63-9-780(D) gave it discretion to decline production and that courts lacked authority to compel disclosure. The Court rejected this argument, citing Doe v. Ward Law Firm, P.A., 353 S.C. 509 (2003), which held there is no “statutory limitation on this Court’s ability to compel” an agency to disclose confidential adoption records.

No Requirement to Exhaust Other Discovery
The Court rejected the Court of Appeals’ reasoning that the plaintiff had not “exhausted the traditional methods of discovery.” The Court noted two critical flaws in this argument:

DSS conceded it would have objected to any discovery method seeking the same information, making other requests futile
The fact that information exists in DSS’s file has different significance than the same information existing elsewhere—it goes to whether DSS itself knew about the danger

The Role of Protective Orders
The Court emphasized that confidentiality concerns can and must be addressed through appropriate protective orders under Rule 26(c). Such orders should:

Require redaction of identifying information
Preclude disclosure of non-discoverable information
Control disclosure of discoverable information
Restrict access to only those who need to review the records
The Court expressed confidence that South Carolina’s circuit and family courts have the experience and capability to craft protective orders that balance discovery needs with confidentiality protection.

Practice Tip: When seeking discovery of DSS adoption files, be prepared to propose a detailed protective order that addresses confidentiality concerns. The Court noted that information like the identities of biological parents would be irrelevant to negligence claims and should be redacted even if other information in the file is discoverable.

Practical Implications for Family Law Practitioners
For Plaintiffs’ Counsel
You can now seek discovery of DSS adoption files in civil litigation when the information is relevant to your claims
Focus your discovery requests on information that meets the Rule 26(b) standard—information reasonably calculated to lead to admissible evidence
Be prepared to work with opposing counsel and the court on an appropriate protective order
Consider carefully what information you actually need—be ready to agree to redaction of irrelevant identifying information

For Defendants and DSS
Blanket objections to discovery of adoption files based solely on § 63-9-780(C) will no longer succeed
Focus on whether the specific information sought meets the civil discovery standard
Work collaboratively to craft protective orders that genuinely protect confidential information while allowing relevant discovery
Consider conducting in camera reviews to identify what information is truly relevant and discoverable

For All Counsel
This decision applies broadly to civil litigation involving DSS records—not just foster care negligence cases
The same principles likely apply to other confidential DSS files beyond adoption records
Courts will expect cooperation in fashioning appropriate protective orders
This is a case of first impression in South Carolina, so cite it prominently in motions to compel or for protective orders

Questions This Case Leaves Open
While this decision provides important clarity, several questions remain:

How will courts balance competing interests in cases involving less serious allegations?
What specific redactions and restrictions will courts typically require in protective orders?
Will this standard apply equally to other confidential government records with similar statutory protection?
How will courts handle situations where the information sought is only marginally relevant?

Conclusion
E.G. and J.J. represents a significant development in South Carolina discovery law. By holding that satisfaction of the civil discovery standard establishes “good cause” under § 63-9-780(C), the Supreme Court has made clear that statutory confidentiality provisions do not create absolute barriers to discovery in civil litigation. However, the decision also emphasizes that courts must carefully protect confidential information through well-crafted protective orders.

For practitioners handling cases involving potential DSS negligence, abuse in foster or adoptive homes, or other matters where DSS records may be relevant, this case provides a clear roadmap for seeking discovery while respecting legitimate confidentiality concerns.

About the Case: This case was heard by the South Carolina Supreme Court on March 26, 2024, and the opinion was filed on August 7, 2024. Justice Few wrote the opinion, with Chief Justice Kittredge and Acting Justices Beatty, McDonald, and Williams concurring.

Citation: E.G. & J.J. v. S.C. Dep’t of Soc. Servs., 443 S.C. 379, 905 S.E.2d 124 (2024).