Recently, the news has been buzzing about the hundreds of cases filed by the adult film industry against individuals for downloading adult content online. These cases illustrate a powerful tool available to attorneys to gather information before filing a lawsuit.
In these cases, the content provider uses its investigators to identify an Internet address (IP address) to which the download was made. Then, they bring suit to force Internet service providers such as AT&T and Comcast to identify the person using that IP address. Before disclosing the information, the Internet service provider notifies the user that a request for disclosure of his or her identity has been made based on a claim of copyright infringement for downloading of pornographic materials. In most cases, the user hires an attorney and quickly settles in order to keep from being named in a suit.
This entire enforcement model works because of an old Florida equitable claim known as a “pure” bill of discovery.
A pure bill of discovery is a suit that is filed to obtain disclosure of facts within the defendant’s knowledge which are necessary in order to prosecute or defend a case that is yet to be filed. It is a form of equitable relief that relates back to a time when common law did not have rules of discovery. The term “pure” came to be used to distinguish the process from other discovery that may be sought in an equitable action.
The reason the pure bill of discovery works for the adult movie industry is that regular discovery is not an option.
Regular discovery arises in a suit where parties are known and named. In some jurisdictions, this can be accomplished with John Doe pleadings. However, John Doe pleadings are discouraged in Florida and result in dismissal of the complaint in certain circumstances. The bill of discovery allows the complainant to bring a cause of action for the sole purpose of obtaining discovery necessary to structure his or her subsequent suit for damages.
The format for a complaint seeking a pure bill of discovery is no different than any other complaint except that the bill of discovery only seeks information.
A properly pled bill of discovery should show:
— the matters concerning which the discovery asked for is sought;
— the interests of the several parties in the subject of the inquiry;
— the complainant’s right to have the relief prayed;
— its title and interest, and what the relationship of same is to the discovery claimed; and
— that the discovery sought is material to the complainant’s rights that entitle the complainant to a disclosure of what is necessary to maintain its own claim against another party.
Each of these elements of a properly pled pure bill of discovery deserves careful attention.
A bill of discovery does not have unbridled scope. It must be directed at matters which can be legally obtained. Privilege and other protections still serve to bar disclosure of information. Also, the Stored Communications Act (18 U.S.C. § 2701) prohibits disclosure of the contents of consumer emails or other electronic communications. So, for example, while adult content providers can use the bill of discovery to obtain the name, address and phone number of the owner of the IP address that downloaded the video, they cannot ask to see his emails or text messages.
The complainant must have a right and interest in obtaining the information. In the case of the adult content providers, they can claim that as copyright owners they have an interest in enforcing their rights. In certain medical malpractice cases, an injured party has a right and interest in identifying the appropriate party to sue for relief.
The information that is sought has to be related to the complainant’s right and has to be related to facilitating the intended claim. The bill of discovery cannot be a bare fishing expedition. To some extent, that complainant has to know the type of information that he or she is likely to obtain and has to be able to articulate how it will help serve its purpose.
Other common sense precautions have to be exercised in using the bill of discovery. For example, once you have filed a lawsuit for damages, the bill of discovery is no longer necessary since you have access to regular discovery. If the information sought is for a potential claim for which the statute of limitations has lapsed, this would also lead to dismissal.
By exercising a little bit of care and common sense, a Florida counsel can continue to wield the pure bill of discovery as a powerful tool to gather information necessary to properly file a suit. Even old legal remedies can continue to be relevant in modern practice.