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PSC restores 'working papers' language in discovery rules; members raise definition concerns
Summary
The commission approved an amendment to discovery rules to explicitly protect hearing-preparation "working papers," but some commissioners and stakeholders urged a clearer statutory definition before finalizing the language. Document 52 75 passed 7-0.
The Public Service Commission unanimously approved an amendment to its discovery rules to restore language protecting hearing-preparation "working papers," but several members expressed concern that the term lacks a precise legal definition.
Jocelyn (agency staff) said the revision "inserts the phrase, 'working papers or attorney work product'" into rules governing hearing preparation and that the change was intended to protect experts' materials as well as attorney preparation. She said stakeholders were supportive and that the term "working papers" had been part of commission practice prior to a recent inadvertent omission.
Representative Martin asked whether adding "working papers" without an explicit definition could broaden discoverability exceptions and potentially slow litigation. "My only concern is if you use the term working paper without an actual definition ... can you just make that so broad that you don't have to turn over anything in discovery and it actually prolongs the litigation process?" Martin said.
Balen Moore, speaking for the South Carolina Rural Telephone Companies, told the committee the term is broader than "attorney work product" and historically encompassed documents prepared "by or for any party or by or for that party's representative, including the attorney, including consultants, surety, indemnitor, insurer or agent," and cited case law and Rule 26(b)(3) as background for the usage.
Committee members discussed options including withdrawing and resubmitting the regulation to add a definition; staff said that would require another notice and stakeholder process and could delay resolution by as much as a year. Several members asked that staff return with clarifying language as soon as the agency process allows. The committee then voted to approve Document 52 75. The roll call recorded: Mister Anderson — yes; Mister Guffey — yes; Mister Hartz — yes; Mister Martin — yes; Mister Neece — yes; Mister Teeple — yes; Mister Bradley — yes. The tally was 7–0.
The commission did not adopt a technical definition of "working papers" at the meeting; members asked staff to pursue clarification and to consult stakeholders and relevant bar associations if needed.
