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Ancient Pure Bill of Discovery

October 8, 2020

A pure bill of discovery is an equitable remedy, rarely used since the adoption of the Florida Rules of Civil Procedure. This underutilized pleading can be used to petition the court for
an order requiring a party to produce documents or to disclose facts that can be used in an expected lawsuit.

However, the filing of a bill of discovery is justified only in narrow and limited circumstances. Specifically, a bill of discovery may be used in the absence of an adequate legal remedy to: 1) identify potential defendants and theories of liability, and 2) to obtain information necessary for meeting a condition precedent to filing suit. However, some lawyers use this relief as a “fishing expedition” to see if causes of action exist against a party, to obtain a preview of discovery that otherwise is obtainable once suit is filed, or simply “to substantiate one’s suspected causes of action.” Vorbeck v. Betancourt, 107 So. 3d 1142 (Fla. 3d DCA 2012). These are akin to the proverbial “cat out of the bag” discovery that causes irreparable harm and places an undue burden on the court, thereby warranting certiorari.

For example, in Kirlin v. Green, 955 So. 2d 28, 30 (Fla. 3d DCA 2007), the plaintiff filed a pure bill of discovery but had “already identified the proper party defendants and several
potential causes of action.” Nevertheless, the plaintiff asserted that discovery was necessary to “ascertain who may be sued and under what theories.” Id at 29. On certiorari review, the Third
District Court of Appeal affirmed dismissal of the complaint, concluding the pure bill of discovery complaint was improper because it was being used merely to substantiate the plaintiff’s prospective causes of action, i.e., to determine whether sufficient evidence existed to support her allegations, or to render her suspected causes of action viable or non-frivolous. Consistent with this holding, other Florida courts routinely hold that the pure bill of discovery is a rarely used tool, available only in the specific circumstances delineated above.

Having an issue with a pure bill of discovery claim? CSK’s appellate department is available to consult on any legal issue you may have, whether you have had an adverse order or just have questions.


Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.


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