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, 

## JUL30

### 1992

-"/I?: i 

### i.!. CHEVRON INDUSTRIES, INC., a corporation and MANVILLE SALES CORPORATION, a Delaware corporation, 

# Zr-Jq ,, v/ CLERK OFSUPt?t;:rY;gIX&J.XT Defendants and Respondents. STATEOF I?i,GiuiBr$A

APPEAL FROM: DistrictCourt of theThirteenthJudicial 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: JeanneM. Bender and Kyle A. Gray: Holland & Hart, Billings, Montana.

Filed: Submitted: April 30, 1992 Decided: July 30, 1992Justice 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 asanEquitableBill 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 StillwaterMine onApril 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 complaintwas filed
onAugust15, 1990. Thenamed defendants,respondentsherein,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 StillwaterMine; Chevron is themanagingpartner. Chevron engaged Industries 

### to perform 

### the 

### actual management functions 

### at the mine. Those functions are carried out by Chevron Resources
2Company (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. Templemay have
a cause of action against one or more of the defendants. He claimed that there was relevant evidence within defendants' control, towhich 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 investigatethe circumstancessurroundinghis 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 complaintbecause 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.

3The 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 defendantswithout the requested discovery. The District Court concluded that, "while theremay be some set of circumstanceswhere an action that might be denominated an equitablebill of discoverywould 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 onhis 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 shouldbe assertedbecause all of the informationnecessarytomake 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 sanctionunder Rule 11. for filing a claimwhich 

### is not well grounded in fact. It is appellant's position that Montana's courtsshouldexercisetheirequitable jurisdictionunder Article VII, § 4 of the Montana Constitution to recognize an independentaction known as an equitablebill 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 4permits 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 thatMr. Temple could conduct his discovery by simply suing them fordamages

### or by proceeding underRule 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 impermissibleunder this Court's decisions. The equitable bill of discovery was the primary means of discoveryprior to the adoption ofmodern rules of civilprocedure. 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 obsoleteby current systemsofpleading andpractice. 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 equitymay require the availability of the equitablebill of discovery. As stated by the Supreme Judicial Court of Maine:

5Althoughmoderndiscoveryrulesand liberalpleading requirementsvirtually eliminatetheneed toresortto 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 otherwisebe 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 ChemicalCo., 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 notpersuasive. First,nothing in theRules specificallyprohibits such an action. Rules 3 and 8(a) require the filing of a complaint showing entitlement to relief and demand for judgment. Those requirementscanbemet by filing a complaint for an equitablebill of discovery which meets the requirements discussed herein. Respondents' reliance on Rule 34 

### is similarlymisplaced. It 

### is truethatRule 34 applies only toparties 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 theMontana Rules of Civil Procedure do not preclude the equitable
6bill of discovery. Respondents also assert that the equitable bill of discovery is impermissibleunder 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,thedistrictcourtallowed discoverynotprovided 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 allowingand enforcingdiscovery in litisationbefore it, must relate the discovery to one of themethods provided in Rule 26(a), M.R.Civ.P. Any attempt to enforce a method of discoverynot provided by theMontana Rules of Civil Procedure 

### is outside the power of the District Court. 

## m, 191 Mont. at 324, 623 P.2d at 1392 (emphasisadded). As is clear fromour stated conclusion,theDistrictCourthad 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 ourdecision inPitcherpreclude an equitablebill of discovery. In Pitcher, a district court order allowed a party to conducta discoverydepositionand examination ofbooks and records prior to commencing litigation, pursuant to a rule of procedure similartoRule 27(a), M.R.Civ.P., which authorizedperpetuationof testimony in anticipation of litigation. The applicantwho sought to conduct the discovery deposition alleged that he would be the

7plaintiff 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 $1,000due. We concluded in Pitcher that: Thepetitionerhas ampleremedybyproperprocedure. He says that thewitness 

### is indebted tohim 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 thewitness 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 canbe 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 evidencehe is entitled to have, and in anorderlyand lawfulmanner, and the adverseparty 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 orderwould authorize the examinationof books and records in a manner not authorized by law. Neither the facts in Pitcher nor the law on which that decisionwas based is similar to the case before us. If anything, Pitcher isauthority forthepropositionthat appellantcannottake the depositions he seeks to take in this case pursuant to Rule 27(a), M.R.Civ.P. We have reviewed the authoritiesprovided to us by appellant and respondents. We conclude that,while modern rules of pleading and practice virtually eliminate the need for an equitablebill of discovery, the better reasoned approach is to recognize and allow
anequitablebill of discoveryunder certainlimitedcircumstances.

8The 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 appropriateparty defendants in an equitable bill, informationwhichmay be sought,andprocedural requirements. The courts which recognize the equitable bill are not in agreement as toproper party defendants in such an action. Florida
casesgenerallyapply the equitableprinciple that apersonwith no interest in the action, or who is merely a witness, cannotbemade
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 theprospective legal action. Shorev, 511A.Zd 1076; Lubrin

### v. Hess Oil Virgin Islands Corp. (D. Virgin Islands 1986), 109 F.R.D. 403. See also InvestorsMortg. 

### Ins. Co. 

### v. Dykema (D. Or. 1984), 598 F.Supp. 666 (allowing equitable bill against individualsnot 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. 

### InShorev,the injuredworker filedhis equitablebill solely against his employer, an entity which could not be a party in the worker'spotential actionagainstanequipmentmanufacturerbecause of the exclusivity of the Maine Workers' Compensation Act. In

9addition, 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 againstthe equipmentmanufacturer: nor couldhe proceed under Rule 34(c) which does not authorize an independent action fordiscovery. 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 themanufacturer or supplierof 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

10Shorev and Lubrin

### were the employers,thevery entitieswhich 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 limiteddiscovery soughthad beenmade 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 constitutionalproblems which could arise if an equitable bill of discovery could be brought againstpotential defendants. While we have determined that Pitcherdoes not prohibit the equitable bill, itdoes suggesttheconstitutionaldifficulties 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 courtshave often spoken of as a fishing expedition, in this instancehaving for itspurpose 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 theman 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

### ofhispapers and effects,and cannotbe allowed. Pitcher, 114 Mont. at 139, 133 P.2d at 353, (emphasisadded). We hold, therefore, that an equitable bill of discovery 

### is cognizableunderMontana law,but that it isavailable only against
a person or entity which cannot be a defendant 

### in subsequent litigation. Further,the equitablebill isavailable for thenames and addresses of potential defendants and for on-site visits to

11inspect specific itemswhich may have caused a documented injury. Finally,aplaintiff in an equitablebill actionmust 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, cannotbe a defendant in subsequent litigation. 2. Did the District Court err in dismissing appellant's complaint for an equitablebill of discoverypursuant to Rule 12(b) (6),M.R.Civ.P.? It 

### is clear from ourholding as to the limited availability of
an equitablebill of discovery thatMr. Temple's complaintdoesnot meet the requirements for such an equitable bill. In particular, all of the informationsoughtby Mr. Temple is sought from thevery entities which are potential defendants in subsequent litigation. Of equal or greater importance, the information sought is, to a largeextent,much broader thanwehave concluded isappropriate 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,IndustriesandManville,and thereafterconductdiscovery, because of Rule 11's requirement of certification that the complaint isgrounded 

### in fact: 

### this is so,he asserts,because the information he needs to make such a certification is within the exclusive control of thesevery 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,

12information 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 counselduring oral argument that littleorno inquirywas made prior to filing the equitable actionasserting that all of the information needed 

### is within the exclusive control of the named defendants. Most notably,hedid not obtain reportsconcerning the accident from the state or federal safety regulatory body having jurisdiction over the accident. Such reportsmay include a wealth of informationwith regard to such things of interest toMr. Temple
as safety responsibility at themine 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 thathe would face sanctionsunder theRulewerehe to file
a "knowledge, information and belief" complaint "after reasonable inquiry." Rule 11 sanctionshave been imposed sparingly inMontana 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 joinderof aparty,
we did sowhere "[a]bsolutely no legitimatepurpose was served" in

13joining the party and the joinder was "ill

-advised, frivolous, malicious and oppressive." D'Agostino

### v. Swanson (1990),240Mont. 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 complaintwhere a party 

### is not certainat the outset which entity has ultimateresponsibility 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 casebefore us suggests, much less mandates, a different procedure here. In the alternative, fictitious ''Doe" pleading also is available to save meritorious causes of actionwhere, 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 alternativesnegate appellant's Rule 11argumentandprovideprocedureswhich enableaplaintiff 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 toRule 12(b)(6),M.R.Civ.P. Nothing herein should be interpreted to prohibit the filing by Mr. Temple of an equitable bill in

14accordance with the requirements of this opinion. Affinned.

We concur:

Justices

15Justice Terry N. Trieweiler dissenting. Idissent from the opinion of the majority. Theunfortunate employee in this case is seriously injured and caught in amaze of corporateunaccountability. 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 countryhave been trying to discourage attorneys from filing frivolous complaints for damages without a factual basis. We have even adopted Rule 11 so that we canpunish thosewho do. Now this Court has recognized a cause of action known as an equitable bill of discovery so that informationbeyond a person’s grasp can be made available when necessary. Any reasonablemind would conclude that the circumstances in this case are the exact circumstances €or which an equitablebill 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.

### LincohPub&

### Paper

### Co.,Inc. (Me. 1986), 511 A.2d 1076, and 

### Lubrin 

### v. Hess Oil 

### Ergz’nIslands Cop. (D.V.I. 1986), 109 F.R.D. 403. However, it is not correct that those

15results were premised on the fact that the defendants in those
caseswere 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 rationaleupon which theLubrin decisionwas 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, Lubrinwill 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 precariousposition. Stated concisely,Lubrinmust 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. Inexplaining itsdecision,the FederalDistrictCourt stated: We note that a number of District Courts have reached the sameconclusionandhave recognized that rule 34(c), although not authorizing a court to order discovery of anonparty,doesnotprohibitan independent action to obtain discovery. Reilly Tar

### Cop.v. BurlingtonN.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, 90F.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
16discovery. Reilly TarCop., 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. Thedefendant inLubrin happened tobe theplaintiff'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 informationwithout 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 discoveryare appropriate "wheneffectivediscovery cannot otherwisebe 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. ColumbiaBroadcasting System 

### (s

# . D.Fla. 1988), 694 F. Supp. 889, the court held that an equitable bill of

I/discovery would be permitted under Florida lawwhen 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 Plaintiffhas 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 inconsistentwith thepurpose of the bill

--to ascertain,as amatter of equitywho an injuredpartymay sue and under what theory. Sunbeam, 694 F. Supp at 892. In Wovev.MassachusettsPortAuthonv (Mass. 1974), 319 N.E.2d 423, theMassachusetts SupremeJudicialCourt allowed amotorist to file
an equitable bill of discovery against the port authority to discover toll receipts gathered at a toll bridge. InInvestorsMortgagehurance

### co.v.

### mkema (1984 )

## , 598 F. Supp. 666, theUnited StatesDistrictCourt 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 casewhere theparty fromwhom discoverywas sought objected onprivacy grounds similar to those aboutwhich the majority expresses concern. However, in that case, the district court disposed of the privacy argument with the following conclusion: 18Investors 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 courtsand outweighs the Dykemas' andNielsens 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 Ihave found. Themajority's reasons for those limitationshave nopractical 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? 19Surely any justicewho thinks that apractical responsewould
come from thatkind of requesthas neverparticipated in litigation where discovery was sought. This is a particularly impractical suggestionwhen the employer fromwhom 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 ofpotential 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 limitationmakes 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 aplaintiff to obtain relevant informationwhichwould 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 reportwhich may explain the cause for his accident? This distinction makes no sense. What practical purpose does it serve to require theplaintiff to allege that before filing his equitable bill of discovery he made a request that the defendant produce the information which is
20sought? The equitable bill of discovery is itself a request for that information. Theprayer for relief in this case sought copies of any investigative reports preparedby thedefendantsas a result of theplaintiffIsaccident: records which would describe the relationship of the various defendantswith regard to the operation of the StillwaterMine: and any information in the defendants' possession which would identify the manufacturer, distributor, and owners of the cars and engine which formedthetrain that ran over theplaintiff. This complaint
was served on all of the defendants. They could have brought a complete and abrupt end to this litigationby simplyproviding 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 theplaintiff tomake 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 aprayer 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 inquirywas made prior to filing the equitable action

I' 

# .... Idisagree 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 complaintplaintiff alleged that the informationwhich isnecessary 21tohis investigation is in the exclusive control of the defendants. For purposes of ruling on amotion 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 complaintwould discover those facts. It isalso incredible that themajority would suggestthat its decision is justified based on the protection of constitutional rights. Aspointed outpreviously, 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 constitutionfor theplaintiff to file apetition for discovery and ask Chevron (inany of its several forms) for informationabouthis accident. However, it also concludes that if he amended that petition and called it a complaint fordamagesbymaking somephony allegation thathebelieved thedefendantswere responsible forhis 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. Inboth 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 22unlikely 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 fromminor inconvenience to aplace 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., clearlyprovides 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. Ifwe 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 forproviding him a safeplace towork, and he does not knowwho was responsible formanufacturing and operating the train which ran over him. Furthermore, he has alleged that thedefendants 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 isprecluded from obtaining that information because of this decision, then how can he allege, without the benefit of this discovery, that after reasonable inquiryhe knowsthat one of the defendantswas responsible forhis 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 eliminatesRule 11as anymeaningful deterrentto frivolous complaints. This opinion invitesabuse of the judicialprocess and punishes the responsibleactions takenby theplaintiff'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 culpableparties. All that theplaintiff 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

24fictitious "Doe" pleading has absolutely no relevancy to the circumstances in this case. Themajority opinionuses terms like I%nowledge,information, and belief" complaint, and fictitious "Doe" pleading in totally inappropriateways. The former will now surely show up in future
cases as if it actuallymeant something. Those caseswill 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 someunsuspecting attorney'smisfortune 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 forviolations 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, Idissent from the opinion of themajority.

I Justice William E. Hunt, Sr., joins in the foregoing dissent of Justice Trieweiler.
Justice
25Justice 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 hasbeen made from thepartiesnamed asdefendants in the complaint and that information has not been provided pursuant to such request. However, in this instance 

### Iwould not dismissdue to this insufficiencybecause this appeal 

### is one of first impressionand 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. RockyMtn. Phosphates (1968), 151 Mont. 54, 438 P.2d 674. A myriad of fact situations can arise where the impositionof sucha restrictionor restrictionswould 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

26prohibition 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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