The complaint for a pure bill of discovery: a living, breathing modern day dinosaur?

• Author: Morman, Daniel

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. [sections] 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...