Publix Supermarkets, Inc. v. Frazier
696 So. 2d 1369, 1997 WL 423447, 1997 Fla. App. LEXIS 8585 (1997)
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Rule of Law:
A pure bill of discovery cannot be used as a 'fishing expedition' to determine whether a cause of action exists, nor can Florida Rule of Civil Procedure 1.290 be used to preserve physical evidence or obtain general pre-suit discovery.
Facts:
- Zarkia T. Frazier suffered an accident while operating a forklift.
- The forklift was owned by Publix Supermarkets, Inc.
- Frazier had not yet commenced a cause of action against Publix Supermarkets, Inc. or the forklift manufacturer regarding the accident.
Procedural Posture:
- Zarkia T. Frazier filed a "Verified Ex Parte Emergency Petition to Preserve Evidence" in the trial court (court of first instance).
- The trial court entered an order requiring Publix Supermarkets, Inc. to preserve the forklift and allow Frazier to examine and inspect it, as well as any related documents.
- Publix Supermarkets, Inc. (Petitioner) filed a petition for a writ of certiorari with the District Court of Appeal of Florida, Fourth District, seeking to vacate the trial court's order.
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Issue:
Does a "Verified Ex Parte Emergency Petition to Preserve Evidence," filed without commencing a cause of action, constitute a valid procedure under Florida rules of civil procedure or a sufficient pure bill of discovery to compel the preservation and inspection of physical evidence for the purpose of determining if a cause of action exists?
Opinions:
Majority - Warner, Judge
No, the petition was not authorized under any rule of procedure nor was it sufficient as a true bill of discovery. Florida Rule of Civil Procedure 1.290 provides solely for the preservation of testimony prior to suit and cannot be used for general pre-suit discovery or to preserve physical property, a point Frazier conceded. A pure bill of discovery, as defined by First Nat'l Bank of Miami v. Dade-Broward Co., requires specific allegations showing the matters sought, the parties' interests, and that the discovery is material to a duly brought or imminent litigation. Frazier's petition lacked these necessary allegations, as its purpose was merely to examine the forklift to determine if it was defective and could have caused the accident, thereby trying to ascertain if a cause of action existed. The court characterized this as an impermissible 'fishing expedition.' The court distinguished Adventist Health System/Sunbelt, Inc. v. Hegwood, where pre-suit discovery was permitted for medical malpractice claims due to statutory prerequisites that, if unmet, would lead to the loss of the cause of action. In this case, Frazier was not precluded from filing a complaint against Publix or the forklift manufacturer, so no similar impediment existed.
Concurring - Stevenson, Judge
No, the respondent's petition for ex parte relief should not have been granted and was not authorized under any rule of procedure, and to the extent it sought a true bill of discovery, it was insufficient. Judge Stevenson clarified that the court's decision does not preclude the respondent from filing an amended complaint to state a proper cause of action for a pure bill of discovery. While acknowledging that a pure bill of discovery can help an injured party ascertain whether a lawsuit may properly be asserted and under what theories, the judge reiterated that there must be some basis for targeting a particular defendant, and a court will not provide the means for a mere 'fishing expedition.' The judge also noted that the existence of other statutory discovery means does not automatically displace the common law pure bill of discovery, citing First Nat'l Bank of Miami v. Dade-Broward Co.
Analysis:
This case clarifies the limited scope of pre-suit discovery tools in Florida, particularly regarding Florida Rule of Civil Procedure 1.290 and the common law pure bill of discovery. It firmly establishes that a pure bill of discovery cannot be used as an open-ended 'fishing expedition' to ascertain if a cause of action exists. Instead, it must be tethered to a specific, pending, or imminent action where material facts are necessary to prosecute or defend. The case reinforces the gatekeeping function of the courts in preventing exploratory discovery absent a filed complaint or specific statutory authorization, except in unique circumstances where a cause of action would otherwise be lost.
