A Forgotten but Necessary Litigation Tool- The Pure Bill of Discovery

Ever find yourself reviewing a new matter and unable to determine who the proper parties are? Or, needing a copy of surveillance footage before responding to a pre-suit demand in a premises liability matter? A Pure Bill of Discovery may be the solution.

“One of the purposes of a true bill of discovery is to allow the injured party to ascertain whether a lawsuit may properly be asserted and under what theory or theories. There must of course be some basis for targeting a particular defendant, and where a plaintiff is truly on nothing more than a ‘fishing expedition,’ the court, in equity, will not supply the rod and reel.” (Stevenson, J., concurring specially) Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369,1372 (Fla. 4th D.C.A. 2007)(holding, “Pure bill of discovery lies to obtain disclosure of facts within defendant’s knowledge, or deeds or writings or other things in his custody, in aid of prosecution or defense of an action pending or about to be commenced in some other court.”); see also, Mendez v. Cochran, 700 So.2d 46 (Fla. 4th D.C.A. 1997)(“Bill of discovery ……may be used to identify potential defendants and theories of liability and to obtain information necessary for meeting condition precedent to filing suit.”)

A suit for damages is not necessary prior to filing a bill for discovery. Dean Witter Reynolds, Inc. v. D & A Accounting and Consulting Corporation, 698 So.2d 935 (Fla. 4th D.C.A. 1997) And, despite the courts having found a pure bill of discovery to be proper under many circumstances, limitations have been pronounced. Kaplan v. Allen, 837 So.2d 1174 (Fla. 4th D.C.A. 2003)(Trial court’s dismissal of the complaint for pure bill of discovery proper when only a possibility that some cause of action might exist.); Kirlin v. Green, 955 So.2d 28 (Fla. 3d D.C.A. 2007)(No entitlement to bill of discovery for sole purpose of avoiding frivolous lawsuit claim.); Mendez, 700 So.2d at 47 (“Bill of discovery may not be used as fishing expedition to see if causes of action exist, or to obtain preview of discovery obtainable once suit is filed.”)