Death of the Bill of Discovery?
May 17, 2016 § 2 Comments
In days of yore — before the MRCP — discovery was limited. There was a device, however, called the “Bill of Discovery in Chancery” that was recognized as the vehicle by which a party could discover material facts known to or in the control of the other party.
In a recent case the COA affirmed a chancellor’s ruling that dismissed a plaintiff’s Bill of Discovery (BOD) filed in chancery court. The plaintiff, Cynthia Kuljis, had filed the pleading to discover information about her slip-and-fall case involving Winn-Dixie of Montgomery. Kujlis argued that the BOD was prudent so that she could determine whether she had a viable cause of action before filing a law suit. The chancellor dismissed on the basis that the matter should have been brought in circuit court, where discovery should ensue.
The COA affirmed in Kuljis v.Winn-Dixie Montgomery, LLC, decided March 29, 2016.
What I want to point out, though, is the dissent written by Judge Fair, joined by Lee, Griffis, Greenlee, and, in part, James, in which he cites State Oil and Gas Board v. McGowan, 542 So.2d 244 (Miss. 1989) as authority for the proposition that the BOD is viable and effective, even since enactment of the MRCP.
So, is this the end of this venerable instrument? We’ll have to wait and see whether the MSSC gets a shot at this issue.
I have not seen a BOD filed since the MRCP went into effect, and that includes both my time both as a lawyer and as a chancellor. I have twice dismissed efforts to use an estate for discovery of a possible PI cause of action, ruling that the matter should be pursued in circuit with discovery, but in neither case was a BOD sought.