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Pure Bill of Discovery – NOT for Purposes of Fishing Expedition

In unique and limited equitable circumstances, a party can file a lawsuit for what is referred to as a pure bill of discovery.

In the absence of an adequate legal remedy, equity has long authorized a pure bill of discovery as an appropriate remedy to obtain information such as the identity of a proper party defendant or the appropriate legal theory for relief.”  A bill of discovery may also be used “to obtain information necessary for meeting a condition precedent to filing suit.”  However, this Court has made clear that a pure bill of discovery does not lie “to substantiate one’s suspected causes of action.” “Neither is it available simply to obtain a preview of discovery obtainable once suit is filed. Such a use of the bill places an undue burden on the court system.” 

Rav Bahamas Ltd. v. Marlin Three, LLC, 47 Fla.L.Weekly D337a (Fla. 3d DCA 2022) (internal citations omitted).

In Rav Bahamas, a party tried to use a pure bill of discovery to obtain documents to substantiate a cause of action. The Third District Court of Appeals held that this was not a proper use of a pure bill of discovery. A pure bill of discovery is not a tool to determine whether sufficient evidence exists to bring a viable cause of action.   The Third District also held that a pure bill of discovery is not proper to facilitate pre-discovery or obtain discovery “to facilitate what a potential plaintiff alleges is ‘easier’ discovery of documents than that which may be available in any subsequent action….” Rav Bahamas, supra.   This is not a vehicle to conduct a fishing expedition to see whether a claim exists against a party:

While the [petitioners] are correct that a pure bill of discovery is still viable “to obtain the disclosure of facts within the defendant’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,”  it is equally true that the bill may not be used, like here, “as a fishing expedition to see if causes of action exist[.]”

Rav Bahamas, supra (internal citations omitted).

I have filed a pure bill of discovery once.  I needed to obtain a copy of a payment bond that the other party would not produce so that I knew the identity of the surety and I had access to the payment bond for the client to sue.  It was a valuable tool in this circumstance to obtain the needed information.

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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