Motion to Compel Depositions in South Dakota

“Depositions for the purpose of discovery are authorized by SDC 1960 Supp. 36.0501. In SDC 1960 Supp. 36.0505 it is provided that on discovery the deponent may not be examined as to any matter that is privileged.” (Hogue v. Massa, 80 S.D. 319, 323 [S.D. 1963].)

Understanding Scope of Discovery for Motions to Compel Discovery

“The scope of pretrial discovery is, for the most part, broadly construed.” (Kaarup v. St. Paul Fire Marine Ins. Co., 436 N.W.2d 17, 19 [S.D. 1989] citing Bean v. Best,76 S.D. 462, 80 N.W.2d 565 [1957].)

“SDCL 15-6-26(b) provides, ‘Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .’ A broad construction of the discovery rules is necessary to satisfy the three distinct purposes of discovery:

1. narrow the issues;
2. obtain evidence for use at trial;
3. secure information that may lead to admissible evidence at trial.

(Kaarup v. St. Paul Fire Marine Ins. Co., 436 N.W.2d 17, 19 [S.D. 1989] citing 8 C. Wright and A. Miller, Federal Practice and Procedure, § 2001 [1970].)

What Is the Evidentary Standard for Pre-trial Discovery?

Because “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action under SDCL 15-6-26(b)”, it is important to understand what is meant by relevant in the context of discovery. (Ferguson v. Thaemert, 952 N.W.2d 277, 281 [S.D. 2020].)

“Evidence is relevant if:

1. [i]t has any tendency to make a fact more or less probable than it would be without the evidence; and
2. [t]he fact is of consequence in determining the action."

(Ferguson v. Thaemert, 952 N.W.2d 277, 281 [S.D. 2020] quoting SDCL 19-19-401.)

“But the definition of relevance at the discovery stage is broad so that it allows for discovery of ‘information that may lead to admissible evidence at trial.’” (Ferguson v. Thaemert, 952 N.W.2d 277, 281 [S.D. 2020] quoting Kaarup, supra, 436 N.W.2d at 20.)

What Are the Grounds for Objecting to Discovery Requests?

“It is not ground[s] 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.” (Ferguson v. Thaemert, 952 N.W.2d 277, 281 [S.D. 2020] quoting SDCL 15-6-26(b).)

Relevant Case Law on Issues of Privilege and Summary Judgment Discovery

“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].)

Objecting to Discovery on the Basis of Privilege

It is settled law that "[a]ll relevant matters are discoverable unless privileged." (Weisbeck v. Hess, 524 N.W.2d 363, 364 [S.D. 1994] citing Kaarup v. St. Paul Fire Marine Ins.,436 N.W.2d 17, 20 [S.D. 1989].) Challengers to a trial court's evidentiary rulings must prove an abuse of discretion. (Weisbeck, id., citing Stormo v. Strong, 469 N.W.2d 816, 820 [S.D. 1991]; see Aberle v. Ringhausen,494 N.W.2d 179, 182-83 [S.D. 1992] [applying an abuse of discretion standard in reviewing orders regarding discovery].)