This novel issue was addressed today, August 7, 2024, by the South Carolina Supreme Court in the matter of E.G. and J.J., v SCDSS, et al.

Defendant SCDSS had placed E.G. and J.J. in foster care with SCDSS's co-defendant.  Co-defendant had an adopted son who was alleged to have sexually and physically abused both E.G. and J.J.  A negligence action was filed by E.G and J.J.'s Guardian in circuit court seeking damages against SCDSS and foster mom for exposing and failing to protect E.G. and J.J. from sexual and physical abuse.

At particular issue was adopted son's adoption file in the family court. Plaintiffs believed that the adoption file would provide evidence that SCDSS knew or should have known that E.G. and J.J. would be at a high risk of harm if placed with foster mom and her adopted son. SCCSS objected to disclosing the adoption file based upon the confidentiality requirements of  63-9-780(C) of the South Carolina Code (2010).  The circuit court did, however, issue a limited protective order regarding specific documents, but did not rule on Plaintiff's motion to disclose the adoption file.

With the consent of all parties and the circuit court, an action was filed in the family court for the limited purpose of the disclosure of the adoption file.  The family court and court of appeals both denied disclosure of the file for various reasons.

Today, Supreme Court, for the first time, addressed the question of whether or not the confidentiality provision of 63-9-780(C) shields those documents and files from discovery in a civil matter.  In summary, the court stated:

The answer is "No."   Categorically, if any  such files or  records meet the criteria for civil discovery under Rules  26 to 37 of the  South Carolina Rules of Civil Procedure, then "good cause" exists under section 639-780  as to those files or records.

This case is a good read on the issue of "good cause" as it relates to discovery of otherwise confidential or difficult to obtain evidence and worth keeping handy.  In cases where good cause is found, a carefully crafted and precise protective order will satisfy both the plaintiff's right to obtain evidence relevant to their claim and the confidentiality of the subject matter at issue.