No. 91-139
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
JOE TEMPLE,
Plaintiff and Appellant,
i .*,'
' .
-vs-
CHEVRON U.S.A. INC., a corporation,
i
CHEVRON INDUSTRIES, INC., a corporation and J U L 3 0 1992
MANVILLE SALES CORPORATION,
a Delaware corporation, Zr-J q
-"/I?: , v/
ii.!.
CLERK OF SUPt?t;:rY;g IX&J.XT
Defendants and Respondents. STATE OF I?i,GiuiBr$A
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gene R. Jarussi: Jarussi & Bishop, Billings,
Montana.
For Respondents:
Jeanne M. Bender and Kyle A. Gray: Holland & Hart,
Billings, Montana.
Submitted: April 30, 1992
Decided: July 30, 1992
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Appellant Joe Temple appeals the order and judgment of the
Thirteenth Judicial District Court, Stillwater County, dismissing
his complaint styled as an Equitable Bill of Discovery. We affirm.
We restate the issues on appeal as follows:
1. Is a cause of action known as an equitable bill of
discovery cognizable under Montana law?
2. Did the District Court err in dismissing appellant's
complaint for an equitable bill of discovery pursuant to Rule
12(b) ( 6 ) , M.R.Civ.P.?
Joe Temple was employed by Chevron Resources Company as an
equipment operator and was working in the Stillwater Mine on April
4, 1990, when an underground train backed into and ran over him.
He sustained physical injuries as a result of the incident and is
being paid workers' compensation disability benefits by his
employer.
On June 21, 1990, Mr. Temple filed a complaint for an
Equitable Bill of Discovery in the Thirteenth Judicial District
Court, Stillwater County, Montana: an amended complaint was filed
on August15, 1990. The named defendants, respondents herein, were
Chevron U.S.A., Inc. (Chevron), Chevron Industries, Inc.
(Industries) and Manville Sales Corporation (Manville). Chevron
and Manville are partners in the Stillwater Mining Company which
owns the Stillwater Mine; Chevron is the managing partner. Chevron
engaged Industries to perform the actual management functions at
the mine. Those functions are carried out by Chevron Resources
2
Company (Resources), Mr. Temple's employer, which is a division or
subsidiary of Industries.
Mr. Temple's complaint described the nature of the accident
and alleged that, as a result of that accident, Mr. Temple may have
a cause of action against one or more of the defendants. He
claimed that there was relevant evidence within defendants'
control, to which he did not have access, which would identify the
causes of the accident and the entities against which he may have
a claim. These documents, the complaint alleges, include
investigation reports, records describing the legal relationships
between defendants and information about the underground train.
Mr. Temple further alleged that the information he sought by the
equitable bill of discovery was necessary in order for him to
thoroughly investigate the circumstances surrounding his accident,
as mandated by Rule 11, M.R.Civ.P.
In his prayer for relief, Mr. Temple sought copies of any
investigative reports prepared by defendants as a result of his
accident and records which would describe the relationship of the
various defendants with regard to the operation of the Stillwater
Mine. He also sought any information in defendants' possession
which would identify the manufacturer, distributor, and owners of
the cars and engine of the train that ran over him.
Defendants objected to the discovery sought and moved to
dismiss the complaint because it failed to state a cause of action
cognizable under Montana law. Defendants asserted that the
discovery sought was not authorized by Montana's Rules of Civil
Procedure.
3
The District Court granted defendants' motion to dismiss for
failure to state a claim for which relief could be granted. The
court rejected Mr. Temple's argument that Rule 11 prevented him
from filing a complaint against any of the defendants without the
requested discovery. The District Court concluded that, "while
there may be some set of circumstances where an action that might
be denominated an equitable bill of discovery would be proper, the
pleadings here do not constitute such a bill, nor do they conform
to the Rules of Civil Procedure." Mr. Temple appealed.
1. Is a cause of action known as an equitable bill of
discovery cognizable under Montana law?
Appellant argues that, while he may have a claim based on his
injuries of April 4, 1990, he does not know the theory upon which
the claim would be based or the party against which any claim
should be asserted because all of the information necessary to make
those determinations is in the exclusive possession of the
corporate respondents. He further alleges that if he does file a
claim against respondents without knowing all of the underlying
facts, he risks sanction under Rule 1 . for filing a claim which is
1
not well grounded in fact. It is appellant's position that
Montana's courts should exercise their equitable jurisdiction under
Article VII, § 4 of the Montana Constitution to recognize an
independent action known as an equitable bill of discovery such as
has been recognized in a few other jurisdictions.
Respondents assert that the equitable bill of discovery is
precluded by the Montana Rules of Civil Procedure. They rely
specifically on Rule 8(a) which requires that a complaint contain
a statement showing entitlement to relief, and Rule 34(c) which
4
permits independent actions for discovery but, according to the
respondents, contemplates an action in existence to which an
independent action for discovery under the Rule must be related.
Respondents also argue that Mr. Temple could conduct his discovery
by simply suing them for damages or by proceeding under Rule 27(a),
M.R.Civ.P., which they assert allows depositions to be taken for
perpetuation prior to the commencement of an action. Finally, it
is respondents' position that an independent action for discovery
is impermissible under this Court's decisions.
The equitable bill of discovery was the primary means of
discovery prior to the adoption of modern rules of civil procedure.
Courts which have addressed the issue of whether modern rules of
civil procedure totally supersede the equitable bill of discovery
are divided.
Some courts have held that the equitable bill has been
rendered obsolete by current systems of pleading and practice. See
Guertin v. Guertin (111. App. ct. 1990), 561 ~.E.2d1339; Rothery
Storage and Van Co. v. Atlas Van Lines (N.D. Ill. 1985), 609
F.Supp. 554; News and Observer Publishing Co. v. North Carolina
(N.C. 1984), 322 S.E.2d 133. The conclusion in these cases is that
the need for the equitable bill of discovery was eliminated by
adoption of modern rules of civil procedure which include liberal
discovery rules.
Other courts have recognized that there may be limited
circumstances and situations, not covered by the modern rules, in
which equity may require the availability of the equitable bill of
discovery. As stated by the Supreme Judicial Court of Maine:
5
Although modern discovery rules and liberal pleading
requirements virtually eliminate the need to resort to an
independent action in the form of an equitable bill of
discovery, they do not totally displace the traditional
equitable jurisdiction of the ...
appropriate orders for independent discovery when
[courts] to issue
effective discovery cannot otherwise be obtained and the
ends of justice are served. See, e.g., Reilly Tar Corp. v.
BurlingtoitN. R.R., 589 F.Supp. 275, 282 (D.Minn. 1984);
Folsom v Westem Elec. Co., 85 F.R.D. 651, 653 (W.D.Okla.
.
1980): Arcell v. Aslilaitd Chemical Co., 152 N.J.super. 471, 378
A.2d 53, 70-71 (1977); see also Wimes v. Eaton Corp., 573
F.Supp. 331, 335-37 (E.D.Wisc. 1983); Pomeroy, 5 207(b),
at 345 (equity court has inherent power to permit
inspection in appropriate circumstances).
Shorey v. Lincoln Pulp & Paper Co., Inc. (Me. 1986), 511A.2d 1076,
1078, (emphasis added; footnote omitted). We agree with the
reasoning of the Maine court.
Respondents' arguments that the Montana Rules of Civil
Procedure preclude an equitable bill of discovery altogether are
not persuasive. First, nothing in the Rules specifically prohibits
such an action. Rules 3 and 8(a) require the filing of a complaint
showing entitlement to relief and demand for judgment. Those
requirements can be met by filing a complaint for an equitable bill
of discovery which meets the requirements discussed herein.
Respondents' reliance on Rule 34 is similarly misplaced. It
is true that Rule 34 applies only to parties in existing litigation
and Rule 34(c), while not precluding an independent action against
a non-party, does not by itself authorize a court to order
discovery from a non-party. On the other hand, nothing in Rule
34(c) prohibits recognition of an equitable bill of discovery in
circumstances where the discovery is necessary, is not otherwise
obtainable, and serves the interest of justice. We conclude that
the Montana Rules of Civil Procedure do not preclude the equitable
6
bill of discovery.
Respondents also assert that the equitable bill of discovery
is impermissible under this Court's decisions in Japp v. District
Court of Eighth Judicial Dist. (1981), 191 Mont. 319, 623 P.2d
1389, and State, ex rel. Pitcher v. District Court (1943), 114
Mont. 128, 133 P.2d 350. This argument is without merit.
In m,the district court allowed discovery not provided for
by the Rules, namely a private interview. We granted a writ of
supervisory control and vacated the district court's allowance of
such an interview:
We conclude therefore, that a District Court, in
allowing and enforcing discovery in litisation before it,
must relate the discovery to one of the methods provided
in Rule 26(a), M.R.Civ.P. Any attempt to enforce a
method of discovery not provided by the Montana Rules of
Civil Procedure is outside the power of the District
Court.
m, 191 Mont. at 324, 623 P.2d at 1392 (emphasis added). As is
clear from our stated conclusion, the District Court had litigation
before it and, in that context, went outside the Rules to allow
discovery not specifically provided for in the Rules. This
significant factual difference between and the instant case
makes our conclusion in inapposite here.
Nor does our decision in Pitcher preclude an equitable bill of
discovery. In Pitcher, a district court order allowed a party to
conduct a discovery deposition and examination of books and records
prior to commencing litigation, pursuant to a rule of procedure
similar to Rule 27(a), M.R.Civ.P., which authorized perpetuation of
testimony in anticipation of litigation. The applicant who sought
to conduct the discovery deposition alleged that he would be the
7
plaintiff in a lawsuit and that the person from whom he sought
discovery would be the defendant. He alleged that the deponent
owed him money for work, labor, and services rendered, and
specified that there was an amount in excess of $1,000 due.
We concluded in Pitcher that:
The petitioner has ample remedy by proper procedure.
He says that the witness is indebted to him on an account
for labor and services in a twenty-four year period of
employment on which there is owing to him upwards of
$1,000. He does not need to examine the witness nor the
books to determine the exact amount. He can sue for
$1,000 and after action commenced he may then have
inspection of the books before trial. Upon the trial a
reference can be ordered if necessary in the examination
of the account for the establishment of facts in
connection therewith. In so proceeding the petitioner
would obtain the evidence he is entitled to have, and in
an orderly and lawful manner, and the adverse party would
not be put at a disadvantage, but would be in a position
to maintain his rights as the law provides.
Pitcher, 114 Mont. at 140, 133 P.2d at 353. We held that the
statute at issue was not intended to be a discovery statute and
that the district court's order would authorize the examination of
books and records in a manner not authorized by law.
Neither the facts in Pitcher nor the law on which that
decision was based is similar to the case before us. If anything,
Pitcher is authority for the proposition that appellant cannot take
the depositions he seeks to take in this case pursuant to Rule
27(a), M.R.Civ.P.
We have reviewed the authorities provided to us by appellant
and respondents. We conclude that, while modern rules of pleading
and practice virtually eliminate the need for an equitable bill of
discovery, the better reasoned approach is to recognize and allow
an equitable bill of discovery under certain limited circumstances.
8
The foregoing analysis and conclusion brings us to the
question of the circumstances under which a complaint for an
equitable bill of discovery will be recognized in Montana courts.
The question includes appropriate party defendants in an equitable
bill, information which may be sought, and procedural requirements.
The courts which recognize the equitable bill are not in
agreement as to proper party defendants in such an action. Florida
cases generally apply the equitable principle that a person with no
interest in the action, or who is merely a witness, cannot be made
a party to an equitable bill of discovery. First Nat. Bank of
Miami V. Dade-Broward Co. (Fla. 1936), 171 So. 510, 511. See also
Poling v. Petroleum Carrier Corporation (Fla. 1967), 194 So.2d 925
(dismissing from an equitable bill an employer which could not be
a defendant in the contemplated lawsuit because of workers'
compensation exclusivity). Other courts have recognized the
equitable bill against persons or entities which cannot be
defendants in the prospective legal action. Shorev, 511A.Zd 1076;
Lubrin v. Hess Oil Virgin Islands Corp. (D. Virgin Islands 1986),
109 F.R.D. 403. See also Investors Mortg. Ins. Co. v. Dykema (D.
Or. 1984), 598 F.Supp. 666 (allowing equitable bill against
individuals not parties to an existing lawsuit). We find guidance
in this regard and in regard to other appropriate limitations on
the equitable bill of discovery in Shorev and Lubrin.
In Shorev, the injured worker filed his equitable bill solely
against his employer, an entity which could not be a party in the
worker's potential action against an equipment manufacturer because
of the exclusivity of the Maine Workers' Compensation Act. In
9
addition, the worker sought only to inspect the machine which
caused his injuries; he had requested permission to do so, but his
employer refused the request. The Maine court noted that the
worker could not proceed under Rule 34, which allows for entry on
land to inspect, precisely because the employer could never be a
party to an action against the equipment manufacturer: nor could he
proceed under Rule 34(c) which does not authorize an independent
action for discovery. Thus, on the basis of the noted facts and as
discussed above, that court concluded that an equitable bill was
available because the discovery sought could not otherwise be
obtained.
Similarly, in Lubrin an injured worker sought from his
employer the name of the manufacturer or supplier of the equipment
involved in his work place accident, an on-site visit to help him
identify such entity and to inspect the site of the accident, and
the deposition of one of his employer's representatives to
determine the suppliers and manufacturers of the involved
equipment. These requests were denied and the worker filed an
equitable action against his employer to obtain the on-site visit
and to conduct a Rule 30(b) (6) deposition for the noted purpose.
It appeared to the United States District Court that the worker
would be unable to identify the manufacturer or supplier of the
equipment without the assistance of his employer, a non-party in
the potential lawsuit. As a result, the court recognized the
equitable action with respect to the on-site visit as the kind of
independent action contemplated by Rule 34(c), F.R.Civ.P.
The defendants in the equitable discovery actions in both
10
Shorev and Lubrin were the employers, the very entities which could
not become defendants in the potential actions. In addition, the
discovery sought was limited, in essence, to assistance in
determining the identity of potential defendants. Finally,
requests for the limited discovery sought had been made and denied.
We are persuaded that these circumstances provide appropriate
parameters for the availability of an equitable bill of discovery
in Montana.
We note, in this regard, our concern with regard to
constitutional problems which could arise if an equitable bill of
discovery could be brought against potential defendants. While we
have determined that Pitcher does not prohibit the equitable bill,
it does suggest the constitutional difficulties inherent in forcing
a potential defendant to produce records in advance of the
commencement of litigation. We stated:
The proceeding launched by the petitioner is what
the courts have often spoken of as a fishing expedition,
in this instance having for its purpose the discovery of
facts and information as the basis for litigation. The
relator is under compulsion to come with all his books
and records, expose everything he has that tells the
story of his business for twenty-five years, submit it
all to the scrutiny of the man who is planning a lawsuit
against him. Clearly this would be a violation of the
relator's riqht to securitv aqainst unlawful search and
seizure of his papers and effects, and cannot be allowed.
Pitcher, 114 Mont. at 139, 133 P.2d at 353, (emphasis added).
We hold, therefore, that an equitable bill of discovery is
cognizable under Montana law, but that it is available only against
a person or entity which cannot be a defendant in subsequent
litigation. Further, the equitable bill is available for the names
and addresses of potential defendants and for on-site visits to
11
inspect specific items which may have caused a documented injury.
Finally, a plaintiff in an equitable bill action must show that the
discovery requested cannot be obtained otherwise and has been
requested of, and denied by, the person or entity which, for
whatever reason, cannot be a defendant in subsequent litigation.
2. Did the District Court err in dismissing appellant's
complaint for an equitable bill of discovery pursuant to
Rule 12(b) ( 6 ) , M.R.Civ.P.?
It is clear from our holding as to the limited availability of
an equitable bill of discovery that Mr. Temple's complaint does not
meet the requirements for such an equitable bill. In particular,
all of the information sought by Mr. Temple is sought from the very
entities which are potential defendants in subsequent litigation.
Of equal or greater importance, the information sought is, to a
large extent, much broader than we have concluded is appropriate in
an equitable bill. Finally, the showing of unavailability
otherwise and request and denial are absent. It remains
appropriate to address Mr. Temple's Rule 11 arguments as they
relate to his complaint.
Mr. Temple argues that he cannot file a complaint against
Chevron, Industries and Manville, and thereafter conduct discovery,
because of Rule 11's requirement of certification that the
complaint is grounded in fact: this is so, he asserts, because the
information he needs to make such a certification is within the
exclusive control of these very entities. While this argument has
some surface appeal, it does not bear up under scrutiny.
First, Rule 11 states only that a signature constitutes
certification that "to the best of the signer's knowledqe,
12
information and belief formed after reasonable inauirv it is well
grounded in fact . . . and that it is not interposed for any
improper purpose. . . .'I All the Rule requires is that a party
make reasonable inquiry and then certify based on knowledge,
information and belief. Here, it appears from responses by Mr.
Temple's counsel during oral argument that little or no inquiry was
made prior to filing the equitable action asserting that all of the
information needed is within the exclusive control of the named
defendants. Most notably, he did not obtain reports concerning the
accident from the state or federal safety regulatory body having
jurisdiction over the accident. Such reports may include a wealth
of information with regard to such things of interest to Mr. Temple
as safety responsibility at the mine and the train which ran over
him.
Next, as recognized by the language of the Rule itself, Rule
11 does not require a guarantee or certification that every
detailed fact has been thoroughly investigated and proved to be
correct. Neither the Rule nor our cases supports Mr. Temple's
premise that he would face sanctions under the Rule were he to file
a "knowledge, information and belief" complaint "after reasonable
inquiry." Rule 11 sanctions have been imposed sparingly in Montana
and only where a party has failed to make reasonable inquiry into
the facts and law and, thus, has failed to meet the objective
reasonableness standard. See Bee Broadcasting Assoc. v. Reier
(1989), 2 3 6 Mont. 215, 769 P.2d 709. Furthermore, while we have
affirmed sanctions in a case involving improper joinder of a party,
we did so where "[a]bsolutely no legitimate purpose was served" in
13
joining the party and the joinder was "ill-advised, frivolous,
malicious and oppressive." D'Agostino v. Swanson (1990), 240 Mont.
435, 784 P.2d 919. If reasonable inquiry produced a reasonable
belief that a parent company or partners in a venture retained
overall safety responsibility for a work site, it is inconceivable
that a joinder of such parties would result in sanctions.
Indeed, it is common practice to join parent and partner
companies in a complaint where a party is not certain at the outset
which entity has ultimate responsibility for a particular incident
but believes, after reasonable inquiry, that one or more of the
entities is responsible. Discovery after the complaint is filed
often produces the specific answer, after which nonresponsible
parties can be dismissed. Nothing in the case before us suggests,
much less mandates, a different procedure here. In the
alternative, fictitious ''Doe" pleading also is available to save
meritorious causes of action where, despite reasonable diligence,
the actual identity of culpable parties remains unknown or
uncertain. Nurenberger v. Hercules-Werke v. Virostek (Nev. 1991),
822 P.2d 1100. These time-honored alternatives negate appellant's
Rule 11 argument and provide procedures which enable a plaintiff to
commence an action; correspondingly, these alternatives permit a
defendant to know what it must defend against and to rely on the
protections afforded by the Montana Rules of Civil Procedure.
We hold that the District Court did not err in dismissing
appellant's complaint for an equitable bill of discovery pursuant
to Rule 12 (b)( 6 ) , M.R.Civ.P. Nothing herein should be interpreted
to prohibit the filing by Mr. Temple of an equitable bill in
14
accordance with the requirements of this opinion.
A f finned.
We concur:
Justices
15
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
The unfortunate employee in this case is seriously injured and
caught in a maze of corporate unaccountability. Chevron, under one
corporate name, owned the mining operation where he worked.
Chevron, under another corporate name, managed the mining site.
Chevron, under a third corporate name, employed him. He does not
know how he was injured, he does not know why he was injured, and
he does not know which form of Chevron was responsible for making
the place of his injury a safe place to work.
For years, courts in this state and all over the country have
been trying to discourage attorneys from filing frivolous
complaints for damages without a factual basis. We have even
adopted Rule 11 so that we can punish those who do. Now this Court
has recognized a cause of action known as an equitable bill of
discovery so that information beyond a person’s grasp can be made
available when necessary. Any reasonable mind would conclude that
the circumstances in this case are the exact circumstances €or
which an equitable bill of discovery is appropriate. However, that
logic has apparently escaped the majority.
The majority opinion is also unfaithful to the authorities
upon which it is based. It is correct that equitable bills of
discovery were allowed in both Shorey v Lincoh P b & Paper Co., Inc. (Me.
. u
1986), 511 A.2d 1076, and Lubrin v. Hess Oil Ergz’n Islands Cop. (D.V.I.
1986), 109 F.R.D. 403. However, it is not correct that those
15
results were premised on the fact that the defendants in those
cases were employers who could not be sued for damages. Nor is it
correct that the results in those cases were premised on the fact
that only limited discovery was sought.
The rationale upon which the Lubrin decision was based applies
directly to the circumstances in this case. In permitting the
requested discovery, the Federal District Court in that case
explained the plaintiff's dilemma as follows:
It appears that, Lubrin will be unable to determine
the manufacturer or supplier of the BTX cargo manifold
and tank without HOVIC's assistance. Since that
assistance is not forthcoming, Lubrin is placed in a
precarious position. Stated concisely, Lubrin must force
a non-party in an anticipated tort suit to supply him
with information he needs for determining whether a
third-party may be liable for his injuries. Lubrin
brought this action for the specific purpose of
conducting this type of discovery. For the following
reasons we find this tactic proper and will order an
expedited discovery schedule.
LUbrirz, 109 F.R.D. at 404.
In explaining its decision, the Federal District Court stated:
We note that a number of District Courts have
reached the same conclusion and have recognized that rule
34(c), although not authorizing a court to order
discovery of a nonparty, does not prohibit an independent
action to obtain discovery. Reilly Tar Cop. v. Burlington N.R
CO., 589 F.Supp. 275, 278-79 (D.Minn. 1984) (case
dismissed for lack of jurisdiction, however, the court
was of the opinion that ancillary jurisdiction may
properly be exercised in a discovery action seeking
inspection of a nonparty's land if the facts of a
particular case so warrant) ; Wimes v Eaton C o p . , 573
.
F.Supp. 331 (E.D.Wis. 1983); Huynhv. werke, 90 F.R.D. 447,
450 (S.D.Ohio 1981); HomeIns. Co. v FirstNat. Bank, 89 F.R.D.
.
485, (N.D.Ga. 1980). Most of these courts have
characterized this independent action as similar to the
antiquated instrument called an equitable bill of
16
discovery. Reilly Tar Cop., at 278; Wmes, at 333-34; Home
Ins. co.,at 488-89. This mechanism was used as the
primary means of discovery prior to the advent of the
Federal Rules of Civil Procedure in 1938. wimes, 573
F.Supp. at 333-34. Although Lubrin did not style his
complaint as an equitable bill for discovery, he does
request equitable injunctive relief seeking the
equivalent result. We therefore find our result in
accordance with the few decisions which exist on this
subject .
Lubrin, 109 F.R.D. at 405.
The defendant in Lubrin happened to be the plaintiff's employer
and could not be sued for damages. However, nothing in that
opinion can be interpreted to suggest that the court's conclusion
was based upon the employer's immunity from suit. The result was
based upon the plaintiff's inability to obtain the necessary
information without filing an equitable bill of discovery.
Everything said about the Lubrin decision is equally true for
the Shorey decision. Nowhere in its decision did the Maine court
suggest that its result was premised on the employer's immunity
from suit. The Maine court very clearly stated that equitable
bills of discovery are appropriate "when effective discovery cannot
otherwise be obtained and the ends of justice are served.l* Shorey,
511 A.2d at 1078.
Furthermore, the majority completely ignores numerous other
decisions where equitable bills of discovery have been recognized
in situations where the defendant was someone other than an
employer. In Sunbeam Television v. Columbia Broadcasting System .
(s D. Fla.
1988), 694 F. Supp. 889, the court held that an equitable bill of
I/
discovery would be permitted under Florida law when brought by the
owner of a television station against a national network.
Interestingly, in that case:
The Defendants assert that Florida law only allows
a party to maintain a bill of discovery against a
putative defendant and, therefore, because Plaintiff has
asserted no potential claims against Defendants Perris
and GEPMC, they are improperly joined.
Sunbeam, 694 F. Supp at 892.
The district court in that case responded that:
This is a gross overstatement of Florida law and
internally inconsistent with the purpose of the bill--to
ascertain, as a matter of equity who an injured party may
sue and under what theory.
Sunbeam, 694 F. Supp at 892.
In Wove v. Massachusetts PortAuthonv (Mass. 1974), 319 N.E.2d 423,
the Massachusetts Supreme Judicial Court allowed a motorist to file
an equitable bill of discovery against the port authority to
discover toll receipts gathered at a toll bridge.
In Investors Mortgage hurance co. v. mkema (1984) , 598 F. Supp. 666,
the United States District Court for the District of Oregon allowed
an equitable bill of discovery brought by a mortgage insurance
company which sought entry upon two mortgagors' property for the
purpose of performing an appraisal. Interestingly, that case is
also the only reported case where the party from whom discovery was
sought objected on privacy grounds similar to those about which the
majority expresses concern. However, in that case, the district
court disposed of the privacy argument with the following
conclusion:
18
Investors contends that the appraisals it seeks are
vital to the outcome of the main action in this matter
and cannot be obtained by any other means. The Dykemas
and the Nielsens do not contest these allegations, but
request that the court deny the relief sought on the
basis that it would violate their right to privacy.
While the constitution protects individuals from
unwarranted intrusion into their homes, that protection
is not without its limits and needs to be balanced with
Investors' right of access to the courts. The harm to
these defendants in allowing an appraisal is minimal.
The right of Investors to a full-blown hearing with all
the facts is an essential part of full access to the
courts and outweighs the Dykemas' and Nielsens claims of
privacy.
Investors, 598 F. Supp at 669.
The great majority of jurisdictions which have considered
whether to allow an equitable bill of discovery have permitted it.
Of those jurisdictions where an equitable bill of discovery is
allowed, this Court has placed greater limitations on its use than
any other jurisdiction I have found.
The majority's reasons for those limitations have no practical
basis in the real world.
In addition to limiting equitable bills of discovery to
parties who cannot be later made a defendant, the majority has
placed the following additional limitations on this cause of
action:
1. The discovery is limited to names and addresses of
potential defendants and on-site visits; and
2. The pleading commencing the action must show that prior
request has been made.
Just how do you ask the defendant in an equitable bill of
discovery for the names and addresses of potential defendants?
19
Surely any justice who thinks that a practical response would
come from that kind of request has never participated in litigation
where discovery was sought. This is a particularly impractical
suggestion when the employer from whom discovery will be sought is
simply one form of several interrelated corporations, one or more
of whom may have been the party responsible for the plaintiff's
injuries. Does the majority really think that one of these
interrelated corporations is going to identify one of its sister
corporations in response to a request for the identity of potential
defendants in a lawsuit for damages?
Why should equitable bills of discovery be limited to on-site
visits? Simply because that is the type of discovery that was
sought in two of the cases which are relied on as authority for
allowing an equitable bill of discovery? This limitation makes no
sense. Other cases cited in this dissent allowed discovery of
other types of information. The purpose of the bill of discovery
is to enable a plaintiff to obtain relevant information which would
otherwise be beyond his control. There is no rational basis for
distinguishing one type of relevant information from another type
of relevant information. Why is it more appropriate to allow him
to visit an accident site than to see a copy of an accident
investigation report which may explain the cause for his accident?
This distinction makes no sense.
What practical purpose does it serve to require the plaintiff
to allege that before filing his equitable bill of discovery he
made a request that the defendant produce the information which is
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sought? The equitable bill of discovery is itself a request for
that information. It includes a prayer for relief. The prayer for
relief in this case sought copies of any investigative reports
prepared by the defendants as a result of the plaintiff I s accident:
records which would describe the relationship of the various
defendants with regard to the operation of the Stillwater Mine: and
any information in the defendants' possession which would identify
the manufacturer, distributor, and owners of the cars and engine
which formedthe train that ran over the plaintiff. This complaint
was served on all of the defendants. They could have brought a
complete and abrupt end to this litigation by simply providing the
information which was requested. If they had provided the
information, it would have been a complete defense to the
plaintiff's bill of discovery. To require the plaintiff to make a
request for the material before this written request for the
material exalts form over substance and imposes a meaningless,
practical hurdle which provides absolutely no benefit to anyone.
The majority states in its opinion that, "[hlere, it appears
from responses by Mr. Temple's counsel during oral argument that
little or no inquiry was made prior to filing the equitable action
.... I'
I disagree with that characterization of remarks made during
oral argument. Furthermore, there is absolutely nothing in this
record to indicate what efforts the plaintiff did or did not make
prior to filing this complaint. What we do know, is that in his
complaint plaintiff alleged that the information which is necessary
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to his investigation is in the exclusive control of the defendants.
For purposes of ruling on a motion made pursuant to Rule 12(b) ( 6 ) ,
M.R.Civ.P., we assume those facts alleged in the complaint are
true. Moganv.CityofHarlem (1987), 227 Mont. 435, 437, 739 P.2d 491,
492. If those facts are true, then no amount of inquiry short of
that which was sought by the plaintiff's complaint would discover
those facts.
It is also incredible that the majority would suggest that its
decision is justified based on the protection of constitutional
rights. As pointed out previously, the only court to consider this
issue in a constitutional context has found that an equitable bill
of discovery does not violate a constitutional right to privacy.
However, the majority's constitutional rationale is particularly
suspect.
The majority opinion concludes that it might offend the
constitution for the plaintiff to file a petition for discovery and
ask Chevron (in any of its several forms) for information about his
accident. However, it also concludes that if he amended that
petition and called it a complaint for damages by making some phony
allegation that he believed the defendants were responsible for his
damages, he could discover the very same information. What would
be the constitutionally significant difference under those two
circumstances? In both cases, the defendant is represented by
counsel. In both cases, discovery is subject to the same rules of
civil procedure. And in both cases, the defendant is afforded
protection from the District Court where the discovery sought is
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unlikely to lead to the development of relevant information. I
congratulate the majority on their sudden constitutional
convictions. I question their elevation of Chevron's right to be
free from minor inconvenience to a place of greater constitutional
importance than the plaintiff's right of access to this State's
courts. Furthermore, if the majority was going to take this step
it should have come up with better precedent than some loose
language in a 49-year-old case that is admittedly not on point.
The foregoing comments relate to the injustice of this
decision as it pertains to the plaintiff. However, the majority
opinion is an equally significant disservice to responsible
practitioners in this State. Rule 11, M.R.Civ.P., clearly provides
that when an attorney signs a complaint he certifies that based
upon a reasonable inquiry he has a belief that the complaint is
well-grounded in fact. If it turns out that after signing such a
certification, he has no information which would justify such a
belief, both he and the person he represents are subject to
substantial sanctions. If we are going to restore respect for our
adversary system and the legal profession, we need to strictly
enforce Rule 11, and not suggest that it is really meaningless.
In this case, the plaintiff has alleged in his complaint and
his affidavit that he does not know how his accident happened, he
does not know which of several interrelated corporations were
responsible for providing him a safe place to work, and he does not
know who was responsible for manufacturing and operating the train
which ran over him. Furthermore, he has alleged that the
defendants are in the exclusive control of that information. If,
as we must assume, the defendants are in exclusive control of that
information, and if the plaintiff is precluded from obtaining that
information because of this decision, then how can he allege,
without the benefit of this discovery, that after reasonable
inquiry he knows that one of the defendants was responsible for his
injuries. In language that defies reason, the majority suggests
that there is a new form of complaint known as a %nowledge,
information, and belief" complaint filed "after reasonable
inquiry." If there is no factual basis known to the plaintiff for
filing a complaint, what is a "knowledge, information, and belief"
complaint? This incredible word game engaged in by the majority
totally eliminates Rule 11 as any meaningful deterrent to frivolous
complaints. This opinion invites abuse of the judicial process and
punishes the responsible actions taken by the plaintiff's attorneys
in this case. The majority suggests that lvfictitious 'Doe'
pleading also is available to save meritorious causes of action
where, despite reasonable diligence, the actual identity of
culpable parties remains unknown or uncertain." That suggestion
overlooks the fact that the plaintiff in this case does not know
whether there is a meritorious cause of action, nor whether there
are any culpable parties. All that the plaintiff does know is that
one of several related forms of the Chevron companies, or their
partner, has exclusive control of the information which would
enable him to determine whether he has a cause of action. A
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fictitious "Doe" pleading has absolutely no relevancy to the
circumstances in this case.
The majority opinion uses terms like I%nowledge, information,
and belief" complaint, and fictitious "Doe" pleading in totally
inappropriate ways. The former will now surely show up in future
cases as if it actually meant something. Those cases will probably
result when these same corporate defendants successfully seek the
imposition of sanctions on the first plaintiff who relies on this
new kind of pleading. The latter was never intended for
circumstances such as exist in this case, and will surely cause
some unsuspecting attorney's misfortune if he or she relies on the
misguided advice of the majority opinion.
By encouraging people in the plaintiff's position to make
uninformed allegations of wrongdoing just so that they can gather
information that ought to be given to them as a matter of common
decency, this Court has forfeited the moral authority to sanction
anyone in this state for violations of Rule 11. That is indeed an
unfortunate situation which will poorly serve both the legal
profession and the judiciary in the future.
For these reasons, I dissent from the opinion of the majority.
I
Justice William E. Hunt, Sr., joins in the foregoing dissent
of Justice Trieweiler.
Justice
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Justice R. C. McDonough concurs and dissents.
I concur that an equitable bill of discovery is cognizable
under Montana law. Such bill should be properly pleaded and
include an allegation that request for the necessary information
has been made from the parties named as defendants in the complaint
and that information has not been provided pursuant to such
request. However, in this instance I would not dismiss due to this
insufficiency because this appeal is one of first impression and it
is obvious that respondents resisted discovery.
I respectfully dissent from the majority as to the other
restrictions imposed in its opinion. Courts of equity are not
bound by cast-iron rules. The governing rules of equity are
flexible and adopt themselves to the exigencies of the particular
case. See Dutton, Mollenberg v. Rocky Mtn. Phosphates (1968), 151
Mont. 5 4 , 438 P.2d 674. A myriad of fact situations can arise
where the imposition of such a restriction or restrictions would be
inequitable. Complaint for discovery should be permitted to be
reasonably brought and proved. However, once the need for
discovery is established, the scope and methods of limited
discovery should be conducted under the direction of the court.
If evidence of the need is submitted to the satisfaction of
the court, then with the court's permission upon proper showings,
a party may make discovery which would be the least cumbersome,
intrusive and expensive to the parties. This would satisfy the
constitutional requirements of the right of access to the courts
contained in Article 11, Section 16, the requirements and the
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prohibition against unreasonable searches and seizures under
Article 11, Section 11, and the right of privacy under Article 11,
Section 10 of the Montana Constitution of 1972.
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