Question 1

I. Pure Bill of Discovery - Purpose

Accepted Answer

“A pure bill of discovery ‘lies to obtain the disclosure of facts within the defendant&#8217;s knowledge, or deeds or writings or other things in his custody, in aid of the prosecution or defense of an action pending or about to be commenced in some other court.” Publix v. Frazier, 696 So.2d 1369 (4th DCA 1997); First Nat&#8217;l Bank of Miami v. Dade-Broward Co., 171 So. 510 (1936).
 A bill of discovery may be used to “identify potential defendants and theories of liability, but may not be used as a fishing expedition to see if causes of action exist” or to simply “obtain a preview of discovery obtainable once suit is filed.” Publix v. Frazier, 696 So.2d 1369 (4th DCA 1997); Kirlin v. Green, 955 So.2d 28 (3rd DCA 2007).
 Available as an aid in bringing or defending an action about to be commenced. Publix v. Frazier, 696 So.2d 1369 (4th DCA 1997).
 May be used to obtain information necessary for meeting a condition precedent to filing suit. Publix v. Frazier, 696 So.2d 1369 (4th DCA 1997); Mendez v. Cochran, 700 So.2d 46 (4th DCA 1997). 
 Liberal rules of discovery make a bill of discovery a remedy that should rarely be used. Trak Microwave Corp. v. Culley, 728 So.2d 1177 (2nd DCA 1998); Kaplan v. Allen, 837 So.2d 1174 (4th DCA 2003); JM Family Enterprises, Inc. v. Freeman, 758 So.2d 1175 (4th DCA 2000); Lewis v. Weaver, 969 So.2d 586 (4th DCA 2007); “[A] bill of discovery is justified only in ‘narrow and limited circumstances.’” Gilbert v. I.W., 105 So.3d 665 (4th DCA 2013).
 It is only available in the absence of an adequate legal remedy.  A bill of discovery is not appropriate if the discovery is available in a pending lawsuit or by way of filing a lawsuit against the party from whom the discovery is sought. Trak Microwave Corp. v. Culley, 728 So.2d 1177 (2nd DCA 1998); Debt Settlement Administrators, LLC v. Antigua and Barbuda, 950 So.2d 464 (3rd DCA 2007); Kaplan v. Allen, 837 So.2d 1174 (4th DCA 2003); JM Family Enterprises, Inc. v. Freeman, 758 So.2d 1175 (4th DCA 2000).
 Bill of discovery is inappropriate if sole purpose is to determine if potential claim is frivolous or not, or to avoid a claim that a lawsuit is frivolous. JM Family Enterprises, Inc. v. Freeman, 758 So.2d 1175 (4th DCA 2000); not appropriate to determine if causes of actions exist for potential lawsuit. Gilbert v. I.W., 105 So.3d 665 (4th DCA 2013).
 Pure bill of discovery may be amended to state cause of action at law. Payne v. Beverly, 958 So.2d 1112 (5th DCA 2007).
 Bill of discovery enables plaintiff to “ascertain the nature of the claims which it is entitled to assert and the defendants against whom it may assert them.” Sunbeam Television Corp. v. Columbia Broadcasting System, Inc., 694 F.Supp. 889, 892 (S.D. Fla. 1988).
 “[A] pure bill of discovery should be granted if there is some reasonable basis to believe that discovery in a later damages action would be inadequate or too late to vindicate the litigant’s right to evidence.” “It may also avoid a spoliation claim later.” Lewis v. Weaver, 969 So.2d 586 (4th DCA 2007).
Bill of discovery is appropriate in rare and limited circumstances, in absence of adequate legal remedy, to identify defendants or theories of liability or to meet condition precedent to filing suit. Vorbeck v. Betancourt, 107 So.3d 1142 (3rd DCA 2012) (Bill of discovery improper where shareholder sought business records from another shareholder; plaintiff sought evidence to substantiate suspected claim, and had adequate legal remedy)

Question 2

II. Pure Bill of Discovery - Required Elements

Accepted Answer

A bill of discovery should show:

The matters concerning which the discovery asked for is sought;
 The interests of the several parties in the subject of the inquiry;
 The claimant’s right to have the relief prayed;
 The claimant’s title and interest;
 The relationship of the claimant to the discovery claimed;
 That the discovery sought is material to the claimant’s rights;
 The circumstances entitle the claimant to the requested discovery materials in order to maintain its own claim. Publix v. Frazier, 696 So.2d 1369 (4th DCA 1997); Payne v. Beverly, 958 So.2d 1112 (5th DCA 2007).

Question 3

III. Pure Bill of Discovery - Evidence Required

Accepted Answer

“In order to be entitled to a pure bill of discovery, [plaintiff] must allege some circumstantial evidence of negligence adequate to justify the good faith filing of a negligence action. Adventist Health Sys. v. Hegwood, 569 So.2d 1295 (5th DCA 1990); Kaplan v. Allen, 837 So.2d 1174 (4th DCA 2003).

Question 4

IV. Pure Bill of Discovery Permitted

Accepted Answer

Man suffered catastrophic injuries when he fell from dock, and was unable to provide details about the fall.  Plaintiff sought pure bill of discovery to require dock owner to preserve dock in current condition and to allow access and inspection of dock.  The court granted the request for a pure bill of discovery, finding that “[p]reservation and inspection of the dock in its current condition is essential to identifying a factual basis for suit against specific defendant(s).” Lewis v. Weaver, 969 So.2d 586 (4th DCA 2007).

Question 5

V. Deposition to Perpetuate Testimony (Fla.R.Civ.P. 1.290 and Fed.R.Civ.P. 27)

Accepted Answer

A person may perpetuate his/her own testimony or that of another regarding any matter cognizable in any court of the state by filing a verified petition in the circuit court of the county where any expected adverse party resides.  Petition must be in name of petitioner and show:

petitioner expects to be party to action cognizable in Florida court, but is currently unable to bring action,
 subject matter of expected action and petitioner’s interest therein,
 facts which petitioner desires to establish by testimony and the reasons to perpetuate it,
 name or description of expected adverse parties, and their addresses if known,
 name and address of person to be examined and substance of expected testimony

Petition must ask for order authorizing petitioner to take deposition.
 Notice and copy of petition must be served on each expected adverse party at least 20 days prior to hearing; notice must be served in same manner as summons; if party cannot be served with due diligence, court may permit service by publication or otherwise, and shall appoint attorney to represent any party who is not served, who shall cross-examine deponent.
 If court finds that perpetuation of testimony may prevent failure or delay of justice, it shall order deposition and specify subject matter of deposition and whether it will be upon oral examination or written questions.
 To perpetuate testimony, petitioner must show immediate need for important evidence that will otherwise be lost; it is not sufficient to make general allegation that evidence may be lost or destroyed, as such allegations are vague and conclusory; burden is on petitioner to show why testimony cannot wait until after lawsuit is filed. In re Landry-Bell, 232 F.R.D. 266 (W.D.La. 2005); In re Ramirez, 241 F.R.D. 595 (W.D.Tex. 2006). 
 Rules of discovery are to be liberally construed, and court has wide discretion regarding orders to perpetuate testimony. Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961).
 Court may also order production of documents, inspections, or examinations (Rules 34 and 35 Fed.R.Civ.P.) in order to preserve evidence under a Rule 27 petition. Fed.R.Civ.P. 27(a)(3); Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961).

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