DocketNumber: No. 537847
Judges: BOOTH, J.
Filed Date: 1/10/1997
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiff, Kevin Hadley, filed a one count bill of discovery complaint against the defendant, Wyman-Gordon Investment Castings, Inc. (Wyman-Gordon) on March 28, 1996, alleging that he was burned on the hand, despite the fact that the plaintiff was wearing protective gloves, when the torch he was using reignited after being shut off. Attached to the plaintiff's bill of discovery complaint is an application for an ex parte restraining order to prevent spoilation of the torch and gloves, over which the defendant maintained possession.
Rather than issuing the temporary order, the court set down an April 8, 1996 hearing to show cause to address the restraining order application. This hearing did not take place. The materials requested by the plaintiff in his bill of discovery complaint were subsequently made available by the defendant for the plaintiff's inspection. The defendant brings its motion to dismiss on the ground that the plaintiff's application for an ex parte restraining order has become moot because the defendant voluntarily provided access to the torch and gloves requested by the plaintiff.
In opposition to the defendant's motion, the plaintiff argues that he filed an equitable bill of discovery, which includes CT Page 458 production of the maintenance records relating to the torch used by the plaintiff at the time of his alleged injuries to determine whether a products liability action may be maintained.
On August 27, 1996, the defendant filed a memorandum in support of its motion, arguing that the plaintiff's application seeks only a restraining order requiring the defendant to make the torch available to the plaintiff for non-destructive testing and to refrain from altering, transferring or disposing of the tool until the plaintiff may test it. Since the testing of the tool has taken place, the defendant argues, there is no more discovery to be had under the plaintiff's bill of discovery and, therefore, both the bill of discovery and application for a restraining order should be dismissed.
DISCUSSION
"The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought." Bergerv. Cuomo,
"To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought." Id., citing Pottetti v.Clifford,
"Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, [t]he availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief sought. . . . The remedy is designed to give facility to proof." (Citations omitted; internal quotation marks omitted.) Berger v.Cuomo, supra,
In the present case, the plaintiff filed a bill of discovery complaint demanding discovery of the torch and gloves used by the plaintiff on the date he was allegedly burned. The defendant made the torch available for examination, operation, inspection, photographing and evaluation by the plaintiff, his attorney and his expert on May 3, 1996. The defendant advised the plaintiff that the gloves used by the plaintiff at the time of the alleged injury were not identifiable, but provided similar gloves for evaluation and examination on May 3, 1996.
On June 4, 1996, the plaintiff served the defendant with a request for production to inspect and copy maintenance records from October 1995 to the present for the torch and torch handle. The defendant argues that it is not required to comply with the plaintiff's request because the bill of discovery was specific as to the material sought from the defendant.
Practice Book § 227 governs requests for production, inspection and examination, but applies only to "any civil action . . . probate appeal . . . administrative appeal. . . ." The discovery rules only apply to existing litigation. If discovery must be had before a lawsuit is commenced, a bill of discovery is viable. See Pottetti v. Clifford, supra,
The court finds that the plaintiff, by serving a request for production on the defendant, demonstrates that there may be other adequate means of enforcing discovery of the required material. See Berger v. Cuomo, supra,
CONCLUSION
In accordance with the foregoing discussion, the court grants the defendant's motion to dismiss the plaintiff's bill of discovery complaint and application for an ex parte restraining order.
Booth, J.