The Bill of Discovery

A statue of George Washington on horseback.
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One of the great things about Section 1782 is that you can use it in aid of a prospective proceeding. Is that anomalous or unprecedented? Nope. Our own courts have long recognized a “bill of discovery,” which allows for discovery necessary in order to bring an action. I’ve been practicing law for a long time, and I just filed my first one. What a life I lead!

It’s called a bill of discovery because it’s an equitable remedy, and cases in the Chancery were begun by bill. Nowadays, with the merger of law and equity, we file a complaint in an ordinary civil action, and it’s better to call the case an action in the nature of a bill of discovery.1 It’s unusual because it’s a purely procedural remedy but it’s found nowhere in the Rules of Civil Procedure, even though those rules do contemplate one particular kind of pre-action discovery, depositions to perpetuate testimony (as when a witness is ill or elderly).

The bill of discovery is interesting historically, because before modern times, discovery wasn’t a feature of the common law at all. It was an invention of equity to cure the injustice that would arise when a plaintiff lacked the evidence needed to make his case. But as the more liberal and less technical practices of equity influenced the law more and more over time, and with the eventual merger of law and equity, what was once anomalous and unusual has come to be absolutely critical to our way of doing law. We think it is critical to getting just results that both sides should have access to all the relevant information. Our view on this isn’t widely shared, as Letters Blogatory readers know well. But in my experience, when foreign lawyers find that they are missing some key evidence they need, and when they realize they can use Section 1782 to obtain it before filing suit, they see merits in our system that may not have been apparent to them until then.

Image Credit: Daderot (Public Domain)

  1. I should make it clear that I am talking here about the law of Massachusetts, and I don’t know whether other US states do things the same way.

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