The insurance company rejected your last offer, the lawsuit is filed, and a notice has arrived setting your deposition for a Tuesday morning in a conference room on Broad Street. A second one names your wife. Your orthopedist’s office has called to say they received a subpoena. Understanding who can be deposed in a South Carolina civil case, and on what terms, takes most of the fear out of the process, because the rules are specific and they apply to both sides.

The rule: who can be deposed in a South Carolina civil case

Rule 30(a)(1) opens the door wide: “After commencement of an action any party may take the testimony of any person, including a party, by deposition upon oral examination.” A plaintiff needs the court’s permission only to take a deposition within thirty days of serving the complaint, unless the defendant has already sought discovery. The scope is set by Rule 26(b)(1), which allows discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and adds that “it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The relevance net is deliberately broad. Our South Carolina personal injury lawsuit timeline shows where depositions fall in the life of a case.

The people who are routinely deposed in an injury case

• —The parties. You will be deposed, and so will the person you sued. A party is compelled to attend simply by notice; no subpoena is needed. Under Rule 30(a)(2) a party can be required to appear “in the county in which the subject civil action is pending, or in the county in which he resides or is employed or transacts business,” or wherever the court orders.
• —Fact witnesses. The passenger, the bystander, the store employee who mopped the floor. A non-party witness is brought in by a subpoena under Rule 45, which commands the person “to attend and give testimony or produce and permit inspection and copying of designated books, documents or tangible things.” Under Rule 30(a)(2), a witness “may be compelled to attend in the county in which he resides or is employed or transacts his business in person.” Reluctance is not a defense to a subpoena.
• —Your treating physicians. Doctors are deposed in most serious injury cases, usually on video so the testimony can be played at trial in place of a live appearance. Their records come with them under a Rule 45 subpoena, because a doctor is not a party to the case.
• —Experts. Rule 26(b)(4) allows discovery of “facts known and opinions held by experts” who will testify, by deposition or otherwise, with rules about who pays the expert’s fee for the time.
• —Your spouse and family. A spouse with a loss of consortium claim is a party and will be deposed as one. A family member who is a witness to your condition can be deposed as a witness. Marital communications carry a privilege, but observations of your daily life do not.
• —Your employer. Lost-wage claims put your employer’s records and, sometimes, a supervisor’s testimony in play.
• —Companies and agencies. Under Rule 30(b)(6), a party “may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested,” and the organization “shall designate one or more officers, directors or managing agents, or other persons who consent to testify on its behalf.” This is how a trucking company, a store chain or an insurer is made to answer for what it knew.

The limits that protect you

South Carolina’s rule contains a protection that many states lack. Under Rule 30(a)(2), “the deposition of any party or witness may only be taken one time in any case except by agreement of the parties through their counsel or by order of the court for good cause shown.” You sit once. The other side does not get a second try because the first did not go the way it wanted. Rule 30 also allows depositions by telephone by stipulation or court order, which matters for out-of-state witnesses and treating providers who have moved, and the court can set any “other convenient place” for a deposition on motion.

Privilege still applies. What you told your lawyer, what you and your spouse said to each other in confidence, and certain other communications are outside discovery, and your attorney will instruct you not to answer those questions. Everything else about the crash, your injuries, your medical history and your life before and after the injury is fair territory, which is why preparation matters more than anything that happens in the room.

What a deposition is, and is not

A deposition is sworn testimony taken outside the courtroom, before a court reporter, with the lawyers for every party present and the right to ask questions. It is not a hearing; no judge is there, and disputes about questions are preserved on the record for later. It is not a conversation; every word is transcribed and can be read to a jury. And it is not the place to argue your case; it is the place to answer the question asked, truthfully and no more. Our post on why you need a lawyer after a car accident explains why an injured person should never attend one without counsel.

For the defense, your deposition is the single most important event before trial, because it is the first and often the only time the insurer’s lawyer sees you. Our post on how insurance companies handle claims describes what they are evaluating. A calm, honest, well-prepared witness raises the value of a case; an unprepared one lowers it.

How to prepare

• —Meet with your lawyer beforehand, more than once for a serious case, and review the medical records, the accident report and your own prior statements. Consistency with what you have already said is the whole game.
• —Answer only the question asked. “I don’t know” and “I don’t remember” are complete answers when true.
• —Do not guess at dates, distances, speeds or amounts. Estimates offered to be helpful become admissions.
• —Tell your lawyer about anything in your history that could come up: prior injuries, prior claims, social media. It will come up, and it is far better handled in preparation than discovered in the room.
• —Treat every break as on the record. The reporter stops typing; the other lawyer does not stop listening.

Frequently asked questions

Can I refuse to be deposed?

Not as a party, and not as a subpoenaed witness. Objections to particular questions, and to the time and place, are handled through your lawyer and, if necessary, the court.

Can they depose my spouse?

Yes, as a party if your spouse has a claim, or as a witness otherwise. Confidential marital communications are privileged; observations are not.

How many times can I be deposed?

Once, unless the parties agree or the court finds good cause for another.

Do I have to travel for it?

A party can be required to appear in the county where the case is pending or where the party lives or works; a witness in the county where the witness lives or works. Telephone and video arrangements are common.

Will my deposition be used at trial?

It can be, to contradict you if your testimony changes, and in some circumstances in place of live testimony. That is why it is treated as seriously as trial itself.

Talk to a Charleston personal injury attorney before your deposition

Depositions decide cases that never reach a courtroom. Klok Law prepares every client for the deposition in injury cases across Charleston, Mount Pleasant, Berkeley and Dorchester counties, and our post on what happens after you reject a settlement offer shows where the deposition falls in the process. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.