No. 91-139 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JOE TEMPLE, 

Plaintiff and Appellant, i ' .*,' . 

i -vsCHEVRON U.S.A. INC., a corporation, 

JUL 3 0 1992 

-"/I?: i i.!. 

CHEVRON INDUSTRIES, INC., a corporation and 

MANVILLE SALES CORPORATION, 

a Delaware corporation, Zr-J q ,, v/ 

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. 

Filed: 

Submitted: April 30, 1992 

Decided: July 30, 1992 
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 11. for filing a claim which is 

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.2d 1339; 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 . . . [courts] to issue 

appropriate orders for independent discovery when 

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), 236 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. 

Af f inned. 

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 Pub & Paper Co., Inc. (Me. 

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 Cop., 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. The prayer for 

relief in this case sought copies of any investigative reports 

prepared by the defendants as a result of the plaintiff Is 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. 

It includes a prayer for relief. 

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 

21 
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 

22 
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 

25 
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. 54, 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 

26 
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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