JOURNAL PUBLISHING CO. v. THE HARTFORD COURANT—DISSENT
BORDEN, J., with whom VERTEFEUILLE, J., joins,
dissenting. Until 1994, when we decided Berger v.
Cuomo, 230 Conn. 1, 644 A.2d 333 (1994), and included
therein one brief passage of dictum; see id., 7–8; which
I discuss later in this opinion, our law on the bill of
discovery was adequate to protect both those who
sought such a bill and those who sought to resist it. By
applying the Berger dictum dispositively to the facts of
the present case, the majority has, in my view, unduly
raised the bar to the issuance of a bill of discovery. I
therefore dissent.
Our jurisprudence regarding bills of discovery prior
to Berger may be summarized as follows. Two types of
the bill of discovery exist at equity: the bill of discovery
and relief, and the pure bill of discovery. The former
is reserved for those circumstances in which a plaintiff
not only seeks some information or document in the
possession of the adverse party, but also requests that
the court take some affirmative action on the asserted
cause of action. The bill of discovery and relief is, therefore,
the equitable equivalent of a plenary action at law.
See generally G. Bispham, Principles of Equity (11th
Ed. 1931) § 525, pp. 437–38 (bill of discovery and relief
vehicle by which claim made for both discovery and
equitable remedy; pure bill of discovery aids prosecution
of legal claim); 3 J. Story, Equity Jurisprudence
(14th Ed. 1918) § 1930, p. 519 (pure bill of discovery,
as distinguished from bill of discovery and relief, seeks
no remedy other than disclosure of certain information
or documentation); 1 J. Pomeroy, Equity Jurisprudence
(5th Ed. 1941) § 191, p. 277 (same). The second type
of bill, the pure bill of discovery, is at issue in the
present case and is the only bill addressed in this
dissent.
A pure bill of discovery ''is an action in equity ancillary
to the original action. The only relief sought
[therein] is a discovery of facts to be used as evidence
in that action. . . . A pure bill of discovery is favored
in equity and will be granted unless there is some wellfounded
objection against the exercise of the court's
jurisdiction. Peyton v. Werhane, 126 Conn. 382, 389,
11 A.2d 800 [1940]; Skinner v. Judson, 8 Conn. 528, 533
[1831]; Swift, Evidence, p. 116; 2 Swift, Digest, p. 210;
1 [J. Pomeroy, supra] §§ 142, 144, 190a, 191, 195; 17 Am.
Jur. 6, § 3; see Middletown Bank v. Russ, 3 Conn. 135,
140 [1819]; Hoyt v. Smith, 23 Conn. 177, 186 [1854];
Norwich & W.R. Co. v. Storey, 17 Conn. 364, 371 [1845];
Welles v. Rhodes, 59 Conn. 498, 506, 22 A. 286 [1890].
To sustain a pure bill of discovery, a party must show
that the matter he seeks to discover is material and
necessary to the proof of, or is needed to aid in the
proof of, another action, already brought or about to
be brought, and that he has no other adequate means
of enforcing discovery of the matter. 3 [J. Story, supra]
§§ 1930, 1943; 1 [J. Pomeroy, supra, § 191, pp. 278–79
and] §§ 197a, 197b; Hare, Discovery, [1849] p. 110; 17
Am. Jur. 8. [In this regard, it] might be stated parenthetically
that the cases in other jurisdictions, and the earlier
cases in this state, make a distinction between pure
bills of discovery and bills for discovery and relief. In
the latter, the petitioner must show that he has stated
a valid cause of action for the equitable relief in support
of which he seeks to invoke the equitable powers
of the court for a discovery. Middletown Bank v. Russ,
supra [140]; Norwich & W.R. Co. v. Storey, supra [371];
Welles v. Rhodes, supra [506]; Story, Equity Pleadings
(9th Ed.) § 324a; 1 [J. Pomeroy, supra] § 229, p. 404.
''The law of discovery has been invested at times
with unnecessary mystery. There are few fields where
considerations of practical convenience should play a
larger role. The rationale of the remedy, when used as
an auxiliary process in aid of trials at law, is simplicity
itself. At times, cases will not be proved, or will be
proved clumsily or wastefully, if the litigant is not permitted
to gather his evidence in advance. When this
necessity is made out with reasonable certainty, a bill
in equity is maintainable to give him what he needs.
. . . There were other reasons in times past, when parties
were not permitted to be witnesses, and when there
was no compulsory process for the production of books
or documents. Carpenter v. Winn, 221 U.S. 533 [31 S.
Ct. 683, 55 L. Ed. 842 (1911)]; Pressed Steel Car Co. v.
Union Pacific R. Co., 240 Fed. 135, 136 [1917]. Today the
remedy survives, chiefly, if not wholly, to give facility
to proof. Sinclair Refining Co. v. Jenkins Petroleum
Process Co., 289 U.S. 689, 693, 53 S. Ct. 736, 77 L. Ed.
1449 [1933]. The right to a discovery, however, does
not extend to all material facts but only to those which
pertain to a party's cause of action or defense. Discovery
cannot be used to pry into the opposing party's case
or to find out the evidence by which that case will be
supported. Peyton v. Werhane, supra [126 Conn. 389];
Downie v. Nettleton, 61 Conn. 593, 596, 24 A. 977 [1892];
1 [J. Pomeroy, supra] § 201. Discovery does not sanction
impertinent intrusion, and there must be a showing of
good faith and probable cause. Sinclair Refining Co.
v. Jenkins Petroleum Process Co., supra, 697. In passing
upon the bill, the court exercises a discretionary power
within recognized limits. [Id.]; see Kiessling v. Kiessling,
134 Conn. 564, 568, 59 A.2d 532 [1948]; May v.
Young, 125 Conn. 1, 10, 2 A.2d 385 [1938]; Katz v. Richman,
114 Conn. 165, 171, 158 A. 219 [1932]; 1 [J. Pomeroy,
supra] §§ 202, 203; 3 Story, Equity Jurisprudence
[supra] § 1936.'' (Emphasis added; internal quotation
marks omitted.) Pottetti v. Clifford, 146 Conn. 252, 257–
59, 150 A.2d 207 (1959). ''The granting of a bill and the
terms of the judgment rendered call for the exercise
by the trial court of a sound discretion as to what is
reasonably necessary.'' Id., 263.
Furthermore, this statement of the legal principles
applicable to the pure bill of discovery is consistent
with those articulated in the authoritative treatises on
equity. According to those authorities, the party seeking
a bill of discovery ''must . . . state a case which will,
if he is the plaintiff at law, constitute a good ground of
action . . . . If it is clear that the action . . . is
unmaintainable at law, Courts of Equity will not entertain
a bill for any discovery in support of it, since the
discovery could not be material, but must be useless.
This however is so delicate a function that Courts of
Equity will not undertake to refuse a discovery upon
such grounds unless the case is entirely free from
doubt. If the point be fairly open to doubt or controversy,
Courts of Equity will grant the discovery and
leave it to Courts of Law to adjudicate upon the legal
rights of the party seeking the discovery.'' (Emphasis
added.) 3 J. Story, Equity Jurisprudence, supra, § 1941,
pp. 525–26; see also 1 J. Pomeroy, supra, § 198, pp.
303–304 (''[i]f the result of the controversy at law is
doubtful, even when the defendant in the suit for a
discovery has denied the plaintiff's title, or has set up
matter which if true would operate as a complete
defense, the court of equity will, in general, grant the
discovery, and leave the issue to be tried and finally
determined by the court of law'').
Gauged by these standards, it is clear to me that the
trial court did not abuse its discretion in issuing this
limited bill of discovery. The court made specific findings
that: (1) the material sought would be necessary
or helpful to prove claims in a suit yet to be filed; (2)
the plaintiff had no alternative means of obtaining the
information other than by a court order; (3) there was
a good faith basis to conclude that the material was
necessary for the plaintiff to determine whether the
defendant had violated the law; and (4) there was probable
cause to believe that the plaintiff has a cause of
action against the defendant on one or more of the
bases stated in its petition.1 As previously stated, such
a bill is favored, and should be issued absent a wellfounded
objection to it. The fact that, ultimately, the
plaintiff may not prevail on the lawsuit it intends to
bring, should not constitute such an objection. Moreover,
the discovery sought in the present case was limited
to one contract document. Thus, this was not an
instance in which the plaintiff sought to misuse the
bill of discovery as a tool to pry needlessly into the
defendant's affairs. Finally, even if the document sought
ultimately did not support the plaintiff's cause of action,
it hardly can be maintained that, at such an early stage
of the proceedings, when the trial court exercised its
discretion to issue the bill, the ultimate liability of the
defendant on the claims that the plaintiff intends to
bring was entirely free from doubt or controversy.
Indeed, as I read the majority opinion, it does not
quarrel with the proposition that, measured solely by
these standards, the trial court did not abuse its discretion
in ordering the bill of discovery in the present case.
Instead, the majority relies on, and applies in a very
stringent way, the following passage from Berger v.
Cuomo, supra, 230 Conn. 7–8: ''The plaintiff who brings
a bill of discovery must demonstrate by detailed facts
that there is probable cause to bring a potential cause
of action. 'Probable cause is the knowledge of facts
sufficient to justify a reasonable man in the belief that
he has reasonable grounds for presenting an action.
. . . Its existence or nonexistence is determined by the
court on the facts found.' . . . Cosgrove Development
Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980).
Moreover, the plaintiff who seeks discovery in equity
must demonstrate more than a mere suspicion; he must
also show that there is some describable sense of
wrong. The plaintiff need not, however, state each
claim with technical precision; he need only set forth
facts that fairly indicate that he has some potential
cause of action. Pottetti v. Clifford, supra, 146 Conn.
259.'' (Emphasis added.)
I perceive several flaws in endorsing the probable
cause standard articulated in Berger. For instance, the
first, emphasized sentence of the previously quoted passage,
which the majority singularly relies on in reversing
the judgment of the Appellate Court in the present case,
has no citation for the proposition stated therein,
because none is available. Prior to Berger, we had never
imposed a showing of detailed facts on a bill of discovery.
Moreover, the last sentence of the passage in
Berger, quoted from Pottetti, is inconsistent with the
first sentence. Indeed, it is that last sentence that
defines the contours of the notion of probable cause
in the context of a bill of discovery: without stating or
proving each claim with technical precision, the plaintiff
need only set forth facts fairly indicating that it
has some potential cause of action. Unless it is clear
that it has none, whether that potential cause of action
ultimately will survive a motion to strike or a motion
for summary judgment, or whether the plaintiff will
prevail on the merits after a trial, is to be left to a later
determination, when and if that action is brought.
Thus, the majority has taken the requirement that
the plaintiff establish ''a valid cause of action,'' which
is applicable only to the bill of discovery and relief;
Pottetti v. Clifford, supra, 146 Conn. 258; and applied
it to the present case, which involves the pure bill of
discovery.2 In other words, the majority has imposed
on both types of the bill of discovery the requirement
that the plaintiff show the existence of probable cause
with respect to each and every element of the cause of
action that he intends to file. That this is the effect of
the majority opinion is demonstrated by the detailed
legal analyses that it presents in order to refute the
plaintiff's potential causes of action. Neither our law,
nor the law of equity generally, supports such a rigorous
standard for the issuance of a bill.
As a practical matter, the majority's analysis requires
a party who seeks to gain access to a single document,
as in the present case, in order to facilitate its proof of
the cause of action that it intends to bring—or, as is
more likely, in order simply to determine whether it
can, in good faith, bring such an action—to be able to
establish a prima facie case on the merits of that potential
cause of action. In effect, the party must demonstrate,
and the trial court must determine, in advance
of the issuance of the bill, that the plaintiff's underlying
claim, in aid of which it seeks the bill of discovery, has
merit. The issuance of a bill of discovery has never had
to surmount such a high threshold.
Moreover, as a matter of policy, it should not have
to do so. First, erecting such a high threshold is likely
to inhibit, unduly, the bringing of bills of discovery,
even where their laudable goal is to help the potential
plaintiff who has a good faith—but mistaken—belief
that he has a cause of action against the defendant
to determine whether there is such a valid claim. For
example, if the document in the present case is as legally
benign as the majority says it is, and if the majority is
as correct on the applicable law as it purports to be,
then the issuance of the bill would, in all likelihood,
demonstrate to the plaintiff the futility of its intended,
potential causes of action. In that event, then, the result
of the issuance of the bill would be that a claim that
otherwise might have been brought will not be brought.
We should not, as a matter of policy, rule out that
possible result.
The majority's approach, moreover, effectively penalizes
the cautious and prudent lawyer who, rather than
simply alleging her cause of action and thereby engaging
the full panoply of judicial machinery—discovery
requests, depositions, interrogatories, and the like—
instead seeks only to gain access to limited information
or documents in order to determine that she will be
able to prove that action. This record amply demonstrates
such a cautious and prudent course of conduct.
Second, if the plaintiff nonetheless brings a bill of
discovery despite the high threshold set by the majority
in the present case, believing in good faith that it can
surmount it, it will then have to put on its best version
of a prima facie case, and the trial court will have to
delve as deeply into the merits, not of the matter before
it, but of the potential claim asserted in the bill, as the
majority has done in the present case. Thus, every bill
of discovery will be, in effect, a minitrial of the potential
claim, without, however, the critical document or documents
sought by the bill.
The unnecessary burdens of such a regime on the
administration of justice are obvious. First, requiring a
court to evaluate the probable success of a claim before
suit is even initiated and without critical information
sought in the bill itself is unfairly prejudicial and may,
ultimately, thwart the administration of justice by needlessly
defeating a potentially good cause of action. Second,
as discussed previously, the majority's application
of Berger creates a disincentive to utilize pure bills of
discovery and an incentive to file suit and avail oneself
of the vast array of discovery tools commonly employed
in the initial stages of litigation. There is no justification,
however, for the attendant waste of judicial resources
that otherwise may be saved by first exploring the availability
of information or evidence to support a claim
in a bill of discovery. Third, forcing the trial court to
evaluate the merits of a potential cause of action up
front may result in the wasteful repetition of its duties,
as there may be instances in which the trial court, after
a detailed analysis of the claim such as the majority
employs in this appeal, finds probable cause to bring
a claim in a proceeding on the bill of discovery, but
subsequently determines, in ruling on a motion to strike,
motion to dismiss, or motion for summary judgment,
that the claim is, ultimately, unsupportable.
I recognize what may lie behind the majority's high
threshold, namely, a fear of opening the proverbial
floodgates to numerous, bad faith fishing expeditions
under the guise of bills of discovery. This fear, however,
is unfounded. First, before Berger, and under Pottetti,
no such flood of bills has ever occurred. This is undoubtedly
because, in most cases, plaintiffs have the necessary
information to state their claims, and then can use
the normal rules of discovery to gain what they need
in order to prove those claims. Furthermore, it is
undoubtedly expensive to file and litigate a separate
bill of discovery; there is, therefore, an economic disincentive
to frivolous filings. Finally, the trial court always
has the discretion to weed out bad faith claims, and
to sanction parties and counsel for engaging in such
conduct. I have full confidence in the abilities of our
trial judges to recognize when the bill is being abused.
I would, therefore, affirm the judgment of the trial
court issuing the bill of discovery.
1 I discuss later in this opinion my disagreement with the majority regarding
the quantum of proof necessary to meet the probable cause standard
for the issuance of a bill of discovery.
2 Although we did not expound upon our suggestion in Pottetti that a
party seeking to sustain a bill of discovery and relief bears a greater burden
than one who utilizes a pure bill of discovery, the reasoning behind such a
distinction is obvious. As previously indicated, a bill of discovery and relief
goes beyond an informational request and requires the court to resolve a
party's substantive claims. Because, in that circumstance, the function of
the court does not end upon disposition of the pure discovery request, but
rather continues through a consideration of the merits of the case, it makes
sense to require the court to determine, at the outset, whether there exists
probable cause to support the various elements of the causes of action
alleged. When dealing with a pure bill of discovery, however, the court's
only function is to pass upon the necessity of a party's informational request.
Imposition of the more stringent probable cause standard articulated in
Berger is thus improper in such a case because the underlying claims are
not before the court for disposition on the merits, as are the claims in a
proceeding on a bill of discovery and relief.
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