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The Complaint for a Pure Bill of Discovery

Author johnbsims3
Admin 

#1 - Posted: 23 Oct 2006 20:10 
The Complaint for a Pure Bill of Discovery

This article examines the ancient equitable remedy known as a pure bill of discovery. A pure bill of discovery is initiated by filing a complaint which seeks relief in the form of discovery. It is usually brought to obtain disclosure of facts within a defendant's knowledge, or of deeds or writings or other things in the defendant's custody, or in the aid of prosecution or defense of an action in some other court.1 A pure bill of discovery is distinguished from other types of bills for discovery in that the only relief sought is discovery, and nothing else.2 Filings of complaints for a pure bill of discovery have been limited since the adoption of modern rules of procedure. Most discovery requirements in cases can be met by using the standard methods available in the rules. Nevertheless, a complaint for a pure bill of discovery can satisfy certain needs that can not be met under the rules.

This article examines the historic development of the action, and follows with practical analysis and overview of Florida law. Particular emphasis will be placed upon necessary allegations for a complaint, pitfalls to avoid when drafting, statutory authority and limitations, and amendment related issues. Discovery practice under current rules of procedure is generally outside the scope of discussion.
Historical Background
The concept of discovery was unknown in the common law.3 If a party to an action at law desired additional discovery, an application would have to be made to the chancery court for a bill of discovery to assist in the prosecution or defense of the action at law. The bill of discovery was an auxiliary procedure to the case pending at law.4 Responses to the requested discovery—depositions and interrogatories—were in writing and were admissible in the action at law. The chancellor was generally liberal in granting the relief sought in the bill of discovery, as the moving party was usually only required to show that it would render preparation and presentation of the case more difficult if discovery was unavailable. A court of equity could enforce its decisions by entering orders of contempt, forfeiture of property, and later, default judgments. However, the bill of discovery was still limited in that it only allowed discovery of facts or documents which helped to prove the case of the party filing the bill. It did not allow discovery of facts or documents which established the claim or defense of the other party.5

In B. H. Thrasher v. Doig & Geiger, 18 Fla. 809 (Fla. 1882), the Florida Supreme Court delineated the scope of a bill of discovery and stated that it was a remedy in aid of a suit or proceeding in another court. It cautioned that if the common law provided an adequate remedy, an equitable bill of discovery would be unavailable.6 By 1927, the legislature adopted former F.S. §§90.17 and 90.18, which allowed for interrogatories and depositions in cases at law under certain circumstances. While these statutes, according to the Florida Supreme Court, were intended to be a substitution for the equitable bill of discovery, they were limited to discovery of "essential matters of fact," and were not intended to "make the opposite party a witness to testify respecting the whole case . . . ." May v. Whitehurst, 144 So. 326 (Fla. 1932).

The Federal Rules of Civil Procedure, adopted in 1938, represented a significant and comprehensive expansion of the use of discovery procedures. The U.S. Supreme Court gave the rules broad construction in Hickman v. Taylor, 329 U.S. 495, 501 (1947). In 1947, the scope of discovery was expanded in Florida when the legislature adopted discovery rules in use by federal courts. By 1954, the Florida Rules of Civil Procedure were adopted and discovery rules were made applicable to both law and chancery actions.7

Thus, under current civil practice in Florida, as well as most jurisdictions in the United States, it is no longer necessary to initiate a separate equitable action to obtain discovery. Nonetheless, Florida has never abrogated the complaint for a pure bill of discovery.8 To date, this ancient procedure still has its place in Florida practice, albeit under circumstances substantially different than those of its origin.
Requirements for a Complaint for a Pure Bill of Discovery
Several modern cases set forth the circumstances where a pure bill of discovery is warranted, as well as the allegations which should be contained in a complaint. A leading modern case in Florida addressing the requisites for obtaining a pure bill of discovery is Publix Supermarkets, Inc. v. Frazier, 696 So. 2d 1369 (Fla. 4th DCA 1997). In Publix Supermarkets, a worker injured in a forklift accident while on the job filed a "verified ex parte emergency petition to preserve evidence." While the trial judge ordered that the forklift be preserved for inspection, the Fourth District reversed, ruling that the petition did not meet the requirements for a pure bill of discovery.9

The Publix Supermarkets court relied on an earlier decision by the Florida Supreme Court, First Nat'l Bank of Miami v. Dade-Broward Co., 171 So. 510, 510–11 (Fla. 1936), and set forth a list of items that should be shown in a bill of discovery: 1) the matters concerning which the discovery asked for is sought; 2) the interests of the several parties in the subject of the inquiry; 3) the complainant's right to have the relief prayed; 4) the complainant's title and interest, and what the relationship of same is to the discovery claimed; 5) discovery so attempted is material to litigation brought on the common law side of the court so as to entitle the complainant to a disclosure of what is necessary to maintain its own claim in that litigation. Publix Supermarkets, 696 So. 2d at 1371. The Fourth District vacated the order of the trial court because the petitioner simply wanted to preserve the forklift to determine if he had a cause of action and ordered that the petition be dismissed. Id. In doing so, the court stated that a pure bill of discovery is not to be used as a fishing expedition to see if causes of action exist. Id.

The Fifth District ruled in Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So. 2d 1295 (Fla. 5th DCA 1990), that a pure bill of discovery would be permitted to allow the deposition of medical witnesses regarding the care and treatment of a patient. In Adventist Health System, the plaintiff needed a medical expert opinion as a statutory prerequisite to filing a malpractice suit. The requested discovery was required to preserve the cause of action, not to determine whether a cause of action existed. The Adventist Health System court stated that "[o]ne of the functions of a bill of discovery filed against a possible or putative defendant is to ascertain, as a matter of equity, who an injured party may sue and under what theory." Id. at 1297.10 As will be shown later, this opinion goes against the notion that a pure bill of discovery is unavailable against third parties to the underlying action at law.

Another case, Sunbeam Television Corp. v. Columbia Broadcasting System, Inc., 694 F. Supp. 889, 892 (S.D. Fla. 1988), quotes from Adkins & Jones, Florida Civil and Criminal Discovery, §1-4 (2d ed. 1976), at page 10 as follows:
A complaint must show that the disclosure of facts which it seeks is necessary to enable the plaintiff to maintain his cause of action or defense in a suit pending or about to be brought in another court, and that the cause of action or defense is legally sufficient . . . . The complaint must also show a present interest of both the plaintiff and the defendant in the subject matter, for such a complaint cannot be maintained by a stranger against a witness. The particular matters as to which discovery is sought must, of course, be set out clearly and definitely.
As the previous cases show, a complaint for a pure bill of discovery must meet certain threshold requirements to withstand a motion to dismiss. First, the plaintiff must properly allege that there is a bona fide cause of action or defense to a suit, not merely a possible cause of action or defense. Second, the plaintiff must be an actual party to the cause of action. If these preliminary requirements are met, the plaintiff must then demonstrate a proper purpose for filing the complaint for a pure bill of discovery. Such purposes include identification of possible defendants in a putative action as well as identification of potential causes of action or defenses. These requirements are in addition to or concurrent with the five requirements set forth in First Nat'l Bank of Miami, 171 So. at 510–11.

Considering the foregoing, a complaint for a pure bill of discovery should conform to general rules of pleading at the outset, contain a standard caption, and be entitled as a "complaint for a pure bill of discovery." It should contain separate allegations regarding the following: 1) the complaint is for a pure bill of discovery; 2) the basis for the court's jurisdiction lies in equity; 3) the identity of the parties and their interests in the case; 4) the specific facts giving rise to a cause of action or defense by the plaintiff, and that the plaintiff is an actual party and not a mere witness or other third party; 5) the matters which give rise to the need for discovery; 6) the nature and content of matters or items specifically sought to be discovered which are in the possession of the defendant; 7) the plaintiff's right to the relief sought (i.e., identification of a) possible defendants, b) conditions precedent to maintaining a cause of action,11and/or c) additional causes of action or defenses); 8) the plaintiff's title, interest, and relationship to the items of discovery sought; and 9) the discovery sought is material to the action at law for which it is sought. Forms for a complaint for discovery are set forth in Trawick, Fla. Prac. and Proced. Forms §4-38 (2003 ed.) and 2 La Coe's Fla. R. Civ. P. Forms R 1.280(102) (2003 ed.).12
Pitfalls to Avoid When Drafting a Complaint
Several Florida cases provide examples of pleadings which do not meet the requirements for relief in the nature of a bill of discovery. In Kaplan v. Allen, M.D., 837 So. 2d 1174 (Fla. 4th DCA 2003), the personal representative of a decedent's estate filed a complaint for a pure bill of discovery against the decedent's former psychiatrist seeking copies of the decedent's medical records and a deposition of the psychiatrist. The decedent was reportedly killed in a car accident while coming from an appointment with her psychiatrist. The estate's representative believed that the decedent's death may have in fact been a suicide caused by malpractice on the part of the psychiatrist. Distinguishing the case from Adventist Health System, the Fourth District ruled that the complaint failed to demonstrate circumstantial evidence of negligence sufficient to justify the good faith filing of a medical malpractice action. Since the estate's claims against the psychiatrist were speculative, the Fourth District affirmed the lower court's order dismissing the complaint.

In Trak Microwave Corporation v. Culley, 728 So. 2d 1177 (Fla. 2d DCA 1998), an employee brought a complaint for a pure bill of discovery against his employer. Several months after the discovery action was filed, the employee sued the employer in federal court. The Second District remanded to the trial court with an order to dismiss the case. One of the grounds of dismissal cited by the court was that the employee had readily available means to discover information in the federal proceeding.

In Mendez v. Cochran, 700 So. 2d 46 (Fla. 4th DCA 1997), a sheriff filed a pure bill of discovery seeking production of audiotapes of conversations of the defendants. The sheriff also noticed the defendants for depositions. The stated purpose of the action was "to ascertain whether criminal or civil statutory violations" took place. Noting that a bill of discovery may not be used to simply obtain a preview of discovery obtainable once a suit is filed, the Fourth District quashed the trial court's ruling denying the defendants' motion for a protective order.

In Schwab v. Television 12 of Jacksonville, Inc., 1993 WL 169181, 21 Media L. Rep. 1157 (Fla. Cir. 1993), the plaintiffs filed a complaint against a television station for a pure bill of discovery alleging that the station published defamatory broadcasts. The complaint appeared to have been filed over two years after the last alleged defamatory publication, i.e., after expiration of the statute of limitations. Therefore, the defendant would at most be a third party witness against other potential defendants. This, held the district court, required dismissal of the complaint.

In G. H. Crawford Co. Financial Services v. Goch, 292 So. 2d 54, 55 (Fla. 3d DCA 1974), the plaintiff filed a complaint against the defendants for a pure bill of discovery. The plaintiff alleged a conspiracy to interfere with his rights regarding a stock purchase. The discovery sought was in the nature of an accounting. The Third District ruled that before a plaintiff is entitled to discovery in an accounting proceeding, he must first establish entitlement to an accounting.

A review of the foregoing cases indicate that the following defects may warrant dismissal of a complaint for a pure bill of discovery: 1) facts which indicate that the cause of action or defense alleged by the plaintiff is merely speculative; 2) a companion case is already pending where the plaintiff filing for the bill of discovery already has adequate means at his or her disposal to obtain discovery; 3) seeking to merely obtain a preview of discovery which would be available once an action at law is filed; 4) suing after expiration of the statute of limitations; 5) suing a mere third party witness; and 6) failing to allege satisfaction of conditions precedent to the underlying cause of action before suing for a pure bill of discovery.
Possible Statutory Authorization for Filing Complaint for Pure Bill of Discovery
Statutory authorization for filing a complaint for a pure bill of discovery arguably exists pursuant to F.S. §627.736(6). This statute grants motor vehicle and casualty insurers certain rights to discovery against employers, physicians, hospitals, clinics, and medical institutions employing or treating an individual who makes a claim for personal injury protection benefits. In the event of a dispute, §627.736(6)(c) allows the insurer to petition the court for an order allowing discovery. The order may be entered only upon a showing of good cause and notice to interested parties. As required by justice, costs and expenses of the proceeding, including attorneys' fees, may be awarded. Under §627.736(6)(d), the insured is entitled to be furnished with all information provided to the insurer under the provisions of §627.736(6).

In Kaminsester v. State Farm Mutual Automobile Insurance Co., 775 So. 2d 981, 984–86 (Fla. 4th DCA 2000), an automobile insurer promptly paid the lessee of MRI equipment its claim for personal injury protection benefits. The insurer then examined its insured under oath. The insured testified that he was not familiar with the company that submitted the bill, and that his MRIs were conducted by a different company at a different address. Thereafter, the insurer wrote the claimant and asked for a copy of the invoice submitted by the company. After resisting the request initially, the claimant finally responded that it leased the equipment to provide the MRIs in question, that there was no invoice, and that the terms of its lease were confidential. The insurer then filed an unverified petition for a pure bill of discovery alleging that it "had reason to believe that the claimant had done nothing more than refer [the] insured . . . to an MRI facility in return for a profit." This, claimed the insurer, was a violation of Florida Statutes. The petition prayed for an order requiring the corporate president of the claimant to submit to a deposition duces tecum, which demanded production of the lease. The petition also demanded an award for costs and attorneys' fees. The court ruled that while good cause is normally shown by affidavits, documents, and sworn testimony, here, the refusal to supply by the equipment lessor satisfied the good faith showing on the part of the insurer. Noteworthy is the fact that the relief sought in the complaint for a pure bill of discovery was obtained against a third party, not the insurer. The court did state in a footnote that while the petition was designated as one for a pure bill of discovery, in fact, it was brought under §627.736(6)(c). Id. at 983 n.4.

In a later Fourth District case, State Farm Mutual Automobile Insurance Co. v. Goldstein et al., 798 So. 2d 807 (Fla. 4th DCA 2001), the plaintiff insurer filed petitions for pure bills of discovery along with the requested discovery. The trial court entered orders denying the insurer's petitions. On appeal, the Fourth District remanded to the lower court to reconsider its ruling on, inter alia, a showing of good cause.

In both Kaminsester and Goldstein the pleadings filed were designated as petitions for pure bills of discovery. However, since the discovery actions were authorized by law under statute, they may not have technically qualified as actions for pure bills of discovery; the remedy sought was provided by law, and equitable relief was unnecessary. A similar analysis would apply to any other statute in force in Florida or elsewhere which grants parties rights to discovery.
Statute of Limitations and Amendment Considerations
One situation which may give rise to the need for filing a complaint for a pure bill of discovery is when a party with a viable cause of action is faced with an approaching statute of limitations deadline. This raises two questions: First, can a party amend a complaint for a pure bill of discovery to assert claims at law once it obtains the discovery sought in its complaint? Second, does the date of filing of a complaint at law relate back to date of filing of the complaint for a pure bill of discovery for purposes of the statute of limitations? Both questions appear to be answered in the affirmative, at least to the extent there is an identity of parties and factual issues.

In Surface v. Town of Bay Harbor Islands, 625 So. 2d 109 (Fla. 3d DCA 1993), the plaintiff, a former police lieutenant, filed a complaint for a pure bill of discovery against his former employer to determine the reasons for his demotion. Thereafter, the plaintiff sought to amend his complaint to include a new count under 42 U.S.C. §1983 alleging a violation of civil rights—an action at law. The trial court denied the motion and dismissed the complaint. On appeal, the Third District reversed finding that the trial court abused its discretion. While the defendant argued that a pure bill of discovery could not be amended to state a cause of action at law, the Third District cited Fla. R. Civ. P. 1.040 for the proposition that there shall be one form of action known as a civil action. Citing McSwiggan, Sr. et al. v. Edson, 186 So. 2d 13 (Fla. 1966), the court continued by stating that when a claim arises out of the same act on which the original pleading was filed, the amended pleading will not be regarded as a new cause of action. It concluded by noting that Rule 1.090(a) provides that "leave of court [to amend] shall be given freely when justice so requires."

In a Third District case, Palafrugell Holdings, Inc. v. Cassel, 825 So. 2d 937 (Fla. 3d DCA 2001), the court considered a situation where a corporation sued its promoter for a bill of discovery and an accounting. Almost a year after the filing of the initial complaint, the plaintiffs amended to include claims of legal malpractice, negligent bailment and breach of fiduciary duties—all actions at law. The trial court dismissed the amended complaint. One of the issues raised was whether the claims for legal malpractice set forth in the amended complaints related back for purposes of the statute of limitations to the date of filing of the original complaint. The trial court ruled that the claims did not relate back and dismissed. The Third District reversed, and held that "[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading." Id. Thus, even though the relief sought in the initial pleading was different than that sought in amended pleadings, the alleged facts giving rise to both complaints were essentially the same.13 Since the initial pleading was timely filed, the amended pleading was deemed timely filed as well. Id.

In a Mississippi case, Fleming v. Travelers Ins. Co., 39 So. 2d 885, 889 (Miss. 1949), an individual plaintiff sued her insurance company for a bill of discovery relating to an automobile policy. The action was brought against the parent company. Answers to interrogatories later disclosed that the policy was issued by two subsidiary companies. The plaintiff then amended to name the subsidiaries as additional defendants. The court held that despite the fact that the policy time limitation for suit expired, the actions against the subsidiaries related back to the time of the filing of the bill of discovery.

The preceding cases lead to the conclusion that when essential facts set forth in a complaint for a pure bill of discovery are the same as those in a proposed amended pleading which contains claims at law, the amendment should be allowed. This can save the time and expense of refiling a complaint, and as well save on costs of service to the extent that the amendment does not seek to add parties.14 Also, to the extent there is an identity of parties and causes of action set forth in the original and amended complaint, the amended complaint should relate back to the filing date of the original complaint for purposes of the statute of limitations.
Conclusion
The complaint for a pure bill of discovery, while not obsolete, has limited use in today's legal environment. Most discovery needs can be satisfied through the standard rules of procedure. However, a complaint for a pure bill of discovery can be useful to expand and refine pleadings as well as serve as a tool to identify proper parties to an action. The practitioner should exercise due care to see that the allegations set forth in the complaint satisfy the requirements for obtaining relief sought in an action for a pure bill of discovery. Caution should be exercised to make sure that the pleading is not being used for impermissible purposes. If these constraints are properly taken into account, this archaic device has its place in the tool box of modern day lawyers. q


1 Campbell v. Knight, 109 So. 577, 579 (Fla. 1926). The defendant in a complaint for a pure bill of discovery is the party against whom discovery is sought. However, in a subsequent or pending underlying action at law, the defendant in the complaint for the pure bill of discovery may actually be the party who is prosecuting claims for damages or some other type of relief.
2 A bill for discovery and relief joins the action for discovery along with a prayer for some other sort of relief. Pottetti v. Clifford, 150 A. 2d 207 (Conn. 1959). Fidelity & Deposit Co. of Md. v. Cone, 179 So. 685 (Fla. 1938), is an example of a case where the court entertained a bill for discovery and relief.
3 As such, trials often degenerated into sporting events. While the parties were expected to behave as gentlemen, the trial was in the nature of an ambush, with neither party being required to tip his hand. As stated in VI Wigmore on Evidence §1845, p. 488, "[t]o require the disclosure to an adversary of the evidence that is to be produced would be repugnant to all sportsmanlike instincts. Thus the common law permitted a litigant to reserve his evidential resources (tactics, documents, witnesses) until the final moment, marshaling them at the trial before his surprised and dismayed antagonist. Such was the spirit of the common law; and such in part it still is. It did not defend or condone trickery and deception; but it did regard the concealment of one's evidential resources and the preservation of the opponent's defenseless ignorance as a fair and irreproachable accompaniment of the game of litigation."
4 It was also an independent action to the one pending at law.
5 See Developments in the Law - Discovery, 74 Harv. L. Rev. 942, 946–48 (March 1961); Hearn v. Pleasure, 624 S.W. 2d 556, 559–61 (Tenn. 1981).
6 In B. H. Thrasher, the plaintiff filed a bill of discovery and sought to enforce a mechanic's lien against the defendant. The court ruled that there was no occasion for a bill of discovery since the plaintiff had a common law remedy against the defendant under Florida's lien law then in force.
7 Trawick's Florida Practice and Procedure §16-1 (2003 ed.); Florida Gaming Corporation of Delaware v. American Jai-Alai, Inc., 673 So. 2d 523, 524 (Fla. 4th D.C.A. 1996).
8 Carner v. Ratner, 207 So. 2d 310, 311 (Fla. 3d D.C.A. 1968); Poling v. Petroleum Carrier Corporation, 194 So. 2d 925 (Fla. 1st D.C.A. 1967). Art. V, §2 (formerly §3) of the Florida Constitution provides that the Supreme Court shall adopt rules for practice in all Florida courts. The Poling court rejected the appellant's argument that this provision "ousted" a trial court's equity jurisdiction to entertain a bill of discovery.
9 The court also ruled that the petition failed to meet the requirements of the Florida Rules of Civil Procedure. While Fla. R. Civ. P. 1.290 provides for the preservation of testimony prior to suit, the rule does not include in its terms, any requests to preserve physical property. Publix Supermarkets, 696 So. 2d at 1370.
10 Cf. Schwab v. Television 12 of Jacksonville, Inc., 1993 WL 169181, 21 Media L. Rep. 1157 (Fla. Cir. 1993), holding that a pure bill of discovery may not be used to obtai n discovery from a third party to the underlying action.
11 See Mendez v. Cochran, 700 So. 2d 46, 47 (Fla. 4th D.C.A. 1997), and cases cited therein.
12 Trawick identifies his form as a complaint for discovery. La Coe identifies his form as a complaint for a pure bill of discovery.
13 But see West Volusia Hospital Authority v. Jones, 668 So. 2d 635, 636 (Fla. 5th D.C.A. 1996), holding that an amendment to an original pleading will not relate back for purposes of statutes of limitations where the amendment states a new and distinct cause of action from that set forth in the original pleading.
14 However, cases hold that if an amendment seeks to add parties after the statute of limitations has expired, claims against the new parties are barred. See Garrido v. Markus, Winter & Spitale Law Firm, 358 So. 2d 577, 579 (Fla. 3d D.C.A. 1978); Johnson v. Taylor Rental Center, 458 So. 2d 845, 846 (Fla. 2d D.C.A. 1984). On the other hand, in Roger Dean Chevrolet, Inc. v. Lashley, 580 So. 2d 171 (Fla. 4th D.C.A. 1991), the Fourth District permitted an individual to add his corporation as a party plaintiff after the statute of limitations.

Author johnbsims3
Admin 

#2 - Posted: 23 Oct 2006 20:13 
Proceeding To Court

Where a decedent dies intestate and you need to file a complaint to
preserve evidence, you need an emergency appointment of an
administrator/administratrix by the probate court in the county
where the decedent resided.

While I recommend that you refer the appointment to probate
counsel, on occasion you may need to personally take the
papers prepared by probate counsel to the probate court to obtain
the emergency appointment. Contact the registrar of probate as
soon as the papers are ready and advise the registrar that you need
an emergency appointment so you can then file a complaint in the
superior court and obtain a restraining order to preserve crucial
physical evidence in the decedent's wrongful death case. Presented
with these circumstances, most clerks will get you before a judge
the same day you make your request.

Usually the county probate court and superior court will be
located in the same judicial complex. Therefore, you should have
your bill of discovery, motion for temporary restraining order, and
affidavit with you when you head to probate court to get your
emergency appointment.

As soon as the court makes the emergency appointment, add
the probate docket number to your complaint and affidavit and
head to the superior court clerk's office to file the complaint
request for the court to hear your emergency motion to preserve
physical evidence. When you arrive at the superior court clerk's
office to file your complaint, if you only brought one firm check
with you, ask the clerk if you can make the check out for the filing
fee after the court hears your request for a temporary restraining
order because there may be an additional court fee for the order.
Your success in getting the emergency appointment and
being heard in superior court doesn't turn on what law school you
went to or how well you drafted your pleadings. It turns on your
pre-existing relationship with the register of probate and the clerk
of the superior court. The more publicity your client's accident
received in the press, the more likely court personnel, including
judges, will cooperate with you. Personally calling the clerks of
both courts even an hour before your planned arrival and explaining
the emergency nature of your need to preserve physical evidence
under threat of destruction of the evidence will increase the
likelihood of getting before the court when you arrive.
Remember, once your client has been appointed administrator/
administratrix, you should have your client execute another
contingent fee agreement.

Tips For Drafting Your Bill Of Discovery
Your complaint for a bill of discovery should contain the following
separate allegations:
(1) the complaint is for a pure bill of discovery; (2) the court's
jurisdiction lies in equity; (3) the identity of the parties and their
interests in the case; (4) the specific facts giving rise to a cause of
action or defense by the plaintiff, and that the plaintiff is an actual
party and not a mere witness or other third party; (5) the matters
which give rise to the need for discovery; (6) the nature and content
of matters or items specifically sought to be discovered which
are in the possession of the defendant; (7) the plaintiff 's right to
the relief sought (i.e., identification of a possible defendant, conditions
precedent to maintaining a cause of action...); (8) the plaintiff
's title, interest, and relationship to the items of discovery
sought; and 9) that the discovery sought is material to the action at
law for which it is sought. See Morman, supra.

The Rule 11 Argument
Rule 11 Fed. R. Civ. P. 11 states that by presenting a pleading to
the court, an attorney certifies to the best of his or her knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, that the claim is well grounded in fact. Some attorneys
have argued their need for a bill of discovery to avoid filing a frivolous
claim. In Temple v. Chevron U.S.A., Inc., 840 P.2d 561 (Mont. 1992)
the lower court dismissed an injured employee's complaint for a bill
of discovery and the employee appealed. The issues before the
Supreme Court of Montana included whether (1) an equitable bill of
discovery was available in Montana; (2) plaintiff 's complaint met the
requirements of an equitable bill of discovery; and (3) the Rule 11
certification requirement precluded the plaintiff from filing an action
and pursuing discovery.

In Temple, the plaintiff was employed as an equipment operator
working in a mine when an underground train backed into and ran
over him. He sustained serious injuries and received workers' compensation benefits. Subsequently the plaintiff filed a complaint for an
equitable bill of discovery alleging that he may have a cause of action
against one or more of the named defendants in his bill. He claimed
that there was relevant evidence within the defendant's control to
which he had no access that would identify the cause of the accident
and the entities against which he may have a claim. The plaintiff also
alleged that the information sought by his equitable bill of discovery
was necessary for him to thoroughly investigate the circumstances of
his accident as mandated by Rule 11.

The Supreme Court of Montana first considered the issue of
whether an equitable bill of discovery was available in Montana.
The court concluded that while modern rules of pleadings and
practice had virtually eliminated the need for an equitable bill of
discovery "...the better reasoned approach is to recognize and allow
an equitable bill of discovery under certain limited circumstances."
The court held that an equitable bill of discovery was available in
Montana "against a person or entity which cannot be a defendant
in subsequent litigation....[and is]...available [to identify] the
names and addresses of potential defendants and for on-site visits

Author johnbsims3
Admin 

#3 - Posted: 23 Oct 2006 20:15 
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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The Complaint for a Pure Bill of Discovery
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