Motion for Protective Order in South Dakota

“When discovery efforts go beyond those subjects not ‘reasonably calculated to lead to the discovery of admissible evidence,’ a court has authority to issue protective orders, quash subpoenas, and grant terms when appropriate.” (Public Entity Pool for Liability, (PEPL) v. SCORE, 658 N.W.2d 64, 72 [S.D. 2003] quoting SDCL 15-6-26(c), 37(a)(4), 45(b) and 45(d)(1).)

Requirements for Filing a Motion for Protective Order in Discovery

“SDCL 15-6-26(c) provides that a court may issue a protective order upon a showing of good cause ‘to protect a ... person from annoyance, embarrassment, oppression, or undue burden or expense[.]’” (In re Jones, 2022 S.D. 9, 15-16 [S.D. 2022] quoting SDCL 15-6-26(c).)

Which Party Has the Burden of Establishing Good Cause for a Protective Order?

“The burden of showing good cause initially rests on the party seeking a protective order to show that the information sought is not discoverable and harmful to the party's interest.” (In re Jones, 2022 S.D. 9, 15-16 citing Bertelsen v. Allstate Ins. Co., 2011 S.D. 13, ¶ 59, 796 N.W.2d 685, 704-05.)

“Once the party opposing discovery makes that showing, ‘the burden then shifts to the party seeking discovery to show that the information is relevant to the subject matter of the lawsuit and is necessary[.]’” (Bertelsen, id. ¶ 59, 796 N.W.2d at 705 quoting In re Remington Arms Co., Inc., 952 F.2d 1029, 1032 [8th Cir. 1991].)

“If the party seeking discovery shows both relevance and need, a court must weigh the injury that disclosure might cause against the need for the information.” (In re Jones, 2022 S.D. at 16 [internal citations omitted].) “The court may then ‘issue a protective order to safeguard the rights of the parties[.]’” (Id.)

Appellate Review of Lower Court Grant of Protective Orders in Discovery

“SDCL 15-6-26(c) authorizes a court to grant a protective order upon a showing of good cause. Good cause is established on a showing that disclosure will work a clearly defined and serious injury.” (Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 704 [S.D. 2011] citing Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 [8th Cir. 1973].) “The injury must be shown with specificity. (Id.) “Broad allegations of harm will not suffice.” (Id.)

“Because the grant or denial of a protective order is a matter within the trial court's discretion, we review the trial court's ruling on this discovery matter under the abuse of discretion standard.” (Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 704 [S.D. 2011] citing Maynard v. Heeren, 1997 S.D. 60, ¶ 5, 563 N.W.2d 830, 833 citing Weisbeck v. Hess, 524 N.W.2d 363, 364 [S.D. 1994].)

Recent Decisions Discussing Motions for Protective Orders in Discovery

“To ensure that privileged information is not disclosed, the circuit court must ensure that the information to be disclosed is nonidentifying. No third-party patient can be associated with the information. Additional safeguards such as protective orders should also be considered.” (Wipf v. Altstiel, 888 N.W.2d 790, 795 [S.D. 2016].)

“Discovery rules are ‘designed to compel production of evidence and to promote, rather than stifle, the truth finding process.’” (In re Jones, 2022 S.D. 9, 17 [S.D. 2022]quoting Magbuhat v. Kovarik, 382 N.W.2d 43, 45 [S.D. 1986 — and “denying the motion to compel, and granting the motion for a protective order.”)