New pleading, new discovery

Michigan Law Review

Volumn 109, Issue 1, 2010, Pages 53-90

  Dodson, Scott ^a  

^a NONE

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EID: 77957603814     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (199)

1. Conley v. Gibson, 355 U.S. 41, 47 (1957).
2. See infra text accompanying notes 31-32.
3. 550 U.S. 544 (2007).
4. 129 S. Ct. 1937 (2009).
5. See Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. Pa. L. Rev. 441, 460-63 (2010) [hereinafter Dodson, Comparative Convergences]; Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 135, 138 (2007), http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf. [hereinafter Dodson, Pleading Standards].
6. See, for example, the Notice Pleading Restoration Act: [T]he law governing a dismissal . . . shall be in accordance with the Federal Rules of Civil Procedure as interpreted by the Supreme Court of the United States in decisions issued before May 20, 2007, other than decisions in cases arising under any law governed by the Private Securities Litigation Reform Act of 1995 . . . . A dismissal . . . is a dismissal or striking of all or any part of a pleading containing a claim or defense for failure to state a claim, indefiniteness, or insufficiency. S. 1504, 111th Cong. (2010); see also Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis &Clark L. Rev. 43, 44 n.4 (2010) (listing seven early proposals); Edward A. Hartnett, Responding to Twombly and Iqbal: Where Do We Go from Here?, 95 Iowa L. Rev. Bull. 24 (2010) (proposing a new Rule 12(j) that would allow a judge to credit an allegation specifically identified under Rule 11(b)(3)); cf. Posting of Jonathan Siegel, jsiegel@law.gwu.edu, to Civil Procedure Listserv, civ-pro@listserv.nd.edu (Oct. 20, 2009) (on file with author) (favoring the promulgation of new Federal Forms to abrogate Twombly and Iqbal, and proposing examples).
7. A notable exception is the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
8. See, e.g., The Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, 109. Stat. 737 (codified as amended in scattered sections of 15 U.S.C.).
9. See Tony Mauro, Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling, Nat'l L.J., Sept. 21, 2009, available at http://www.law.com/jsp/nlj/PubArticleNLJ. jsp?id=1202433931370 (reporting that the chair of the Advisory Committee on Civil Rules intends to be cautious about rule amendments to soften Iqbal).
10. See Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. Pa. L. Rev. 1099, 1135-36 (2002) ("[A] Court that has changed a Rule via interpretation may be reluctant to approve a proposed amendment that would undo its work.").
11. Professor Edward Hartnett agrees. See Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473, 481 (2010) ("In light of Iqbal, and short of an amendment to the Federal Rules of Civil Procedure or legislative action, Twombly is here to stay across the broad range of federal civil actions.").
12. See Dodson, supra note 6.
13. See Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217, 226-27 (2007) (discussing Rule 27 and equitable bills of discovery).
14. See Hartnett, supra note 11, at 503-15; Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis &Clark L. Rev. 65, 132-40 (2010).
15. For a more detailed defense of this point, see infra Part III.
16. 1848 N.Y. Laws 521, tit. 6 ch. 1 § 120(2); see also 5 Charles Alan Wright &Arthur R. Miller, Federal Practice &Procedure § 1216 (3d ed. 2004) (describing the fact pleading required by the Codes). The Codes were creatures of state law, but the federal Conformity Act of 1872 required federal courts to use state procedures for actions at law. In the early 1900s, federal courts sitting in equity followed federal equity rules, which, similar to the Codes, required a "short and simple statement of the ultimate facts." James Love Hopkins, The New Federal Equity Rules 166 (5th ed. 1925).
17. See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 936-37 (1987) (stating that the Codes disallowed interrogatories and strictly limited document requests and oral depositions).
18. See Charles E. Clark, Handbook of the Law of Code Pleading 150, 225 (2d ed. 1947).
19. See Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 Iowa L. Rev. 873, 891 (2009) (stating that the Codes drew "hopeless distinctions among allegations of ultimate fact, legal conclusions, and evidentiary facts"); Kevin M. Clermont, Litigation Realities Redux, 84 Notre Dame L. Rev. 1919, 1930 (2009) ("The older view held that pleadings must . . .lay[] out the issues in dispute and stating the facts in considerable detail. But holders of this view asked too much of the pleading step, which consequently . . . provided the vehicle for monumental abuse."); Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 438 (1986) (stating that the distinctions "invited unresolvabledisputes"); see also Charles E. Clark, Pleading: History, Systems, and Functions, 11 Va. L. Rev. 517, 534 (1924) (noting that fact pleading was the least successful of the Code pleading reforms).
20. Fed. R. Civ. P. 8(a).
21. See Dodson, Comparative Convergences, supra note 5, at 447-50; see also Clermont, supra note 19, at 1930 ("[M]ost people came to accept that the main task of pleadings is to give the adversary (and the court and the public) fair notice of the pleader's contentions."). For an assessment at the time of the Rules' adoption, see James A. Pike & John W. Willis, The New Federal Deposition-Discovery Procedure: I, 38 Colum. L. Rev. 1179, 1179 (1938).
22. See Marcus, supra note 19, at 439.
23. See Charles E. Clark, The New Federal Rules of Civil Procedure: The Last Phase-Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976, 977 (1937) ("[T]hrough the weapons of discovery and summary judgment we have developed new devices, with more appropriate penalties to aid in matters of proof, and do not need to force the pleadings to their less appropriate [screening] function."); see also Clermont, supra note 19, at 1930 ("The motivating theory was that these later steps can more efficiently and fairly handle functions such as narrowing issues and revealing facts.").
24. See Thomson v. Washington, 362 F.3d 969, 970 (7th Cir. 2004). Clark defines the notice requirement: The notice in mind is . . . that of the general nature of the case and the circumstances or events upon which it is based, so as to differentiate it from other acts or events, to inform the opponent of the affair or transaction to be litigated-but not of details which he should ascertain for himself in preparing his defense-and to tell the court of the broad outlines of the case. Charles E. Clark, Simplified Pleading, 2 F.R.D. 456, 460-61 (1943); see also Christopher M. Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. 987, 1001 (2003) ("What simplified notice pleading calls for is a general description of the case.").
25. Fed. R. Civ. P. 12(e). For a contemporary assessment of this vehicle at its adoption, see James A. Pike, Objections to Pleadings Under the New Federal Rules of Civil Procedure, 47 Yale L.J. 50, 62 (1937).
26. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Whether the Supreme Court has Limited Americans' Access to Court: Hearing Before the Sen. Comm. on the Judiciary, 111th Cong. 18 (2009) (statement of Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania), available at http://judiciary.senate.gov/pdf/12-02-09%20Burbank%20Testimony.pdf [hereinafter Limited Access] ("[A] Rule 12(e) motion . . . has always been available to deal with a 'the defendant wronged me' type of complaint.").
27. Fed. R. Civ. P. 12(b)(6).
28. See Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 Tex. L. Rev. 1749, 1749 &n.4 (1998) (arguing that pleadings should be dismissed only when the allegations themselves demonstrate a bar to relief).
29. Vincent v. City Colls. of Chi., 485 F.3d 919, 923 (7th Cir. 2007); see also Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006) ("Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal.").
30. Conley v. Gibson, 355 U.S. 41, 45-47 (1957); see also Kevin M. Clermont &Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. 821, 825 ("Under the Rules, then, pleading was a pervious gate. Its main task became the giving of fair notice of the pleader's basic contentions to the adversary (and the court and the public)."); A. Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1, 6 (2009) (arguing that Conley endorsed a notice pleading regime under Rule 8). But see Emily Sherwin, The Story of Conley: Precedent by Accident, in Civil Procedure Stories 295, 317-18 (Kevin M. Clermont ed., 2d ed. 2008) (arguing that the original rules were stricter than Conley interpreted them to be); Subrin, supra note 17, at 985, 992-94 (same).
31. Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551, 551 (2002) ("Despite [the] clarity [of Rule 8] and the Supreme Court's endorsement of notice pleading in Conley v. Gibson, federal courts have embraced heightened pleading burdens in a variety of situations.") (footnotes omitted); Marcus, supra note 28, at 1750 (documenting that courts "appeared to disinter fact pleading" even after Conley).
32. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002); Leatherman v. Tarrant County Narcotics Intelligence &Coordination Unit, 507 U.S. 163, 168 (1993); Fairman, supra note 24, at 997 ("[W]hen called upon to address pleading issues square on, the Court continually-and unanimously-embrace[d] simplified notice pleading."); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 577-78 &n.4 (2007) (Stevens, J., dissenting) (listing over a dozen Supreme Court cases citing Conley's standard).
33. 550 U.S. 544 (2007).
34. 129 S. Ct. 1937 (2009).
35. Id. at 1949-50. Iqbal purported to rely on Twombly for this proposition, but, to be fair, Twombly's disregard of the conclusory allegation of a "conspiracy" in that case was based on the Court's construction of the complaint as a whole, in which the allegation of a conspiracy followed from the factual allegations of conscious parallel conduct. In other words, Twombly characterized the allegation of a conspiracy as meant to state merely the inference that the plaintiffs intended the allegations of conscious parallel conduct to create. Twombly did not create the strict conclusory/ nonconclusory dichotomy that Iqbal claims it did. For more on the perhaps unwarranted extension of Twombly by Iqbal, see Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 Notre Dame L. Rev. 849 (2010).
36. At least one court has interpreted Twombly to resurrect those same distinctions, though in a way that would impose more fact pleading than even the Codes required. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 &n.5 (9th Cir. 2008) (requiring the plaintiff to "plead not just ultimate facts (such as a conspiracy), but evidentiary facts which, if true, will prove [the ultimate facts]").
37. Iqbal, 129 S. Ct. at 1949.
38. Twombly, 550 U.S. at 569 n.14 ("[W]e do not apply any 'heightened' pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9 . . . ."); id. at 570 (Stevens, J., dissenting) ("Here . . . we do not require heightened fact pleading of specifics . . . . "). Not everyone takes the Court at its word. See, e.g., A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431, 475 (2008) (arguing that Twombly imposes "a pleading obligation that approaches the particularity requirement of Rule 9(b)"); Posting of Michael C. Dorf to Dorf on Law, The End of Notice Pleading?, http://michaeldorf.org/2007/05/end-of-notice-pleading.html (May 24, 2007, 07:34) (asserting that Twombly imposes a heightened pleading standard).
39. Twombly, 550 U.S. at 556-57.
40. Iqbal, 129 S. Ct. at 1951 (internal quotation marks omitted).
41. Id. at 1961 (Souter, J., dissenting) ("[T]he majority's holding that the statements it selects are conclusory cannot be squared with its treatment of certain other allegations in the complaint as nonconclusory.").
42. Compare Bone, supra note 35, at 868 (defining a conclusory allegation as one that "states facts at too high a level of generality"), with Stephen R. Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. (forthcoming 2010) (manuscript at 26, available at http://ssrn.com/abstract=1469638) (defining "conclusory" as an allegation that "attempts to plead directly an element of a claim that is only indirectly sensoryperceptible"), Hartnett, supra note 11, at 491-92 (defining conclusory as alleging the claim's legal elements), A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis &Clark L. Rev. 185, 193 (2010) (defining it as a legal, as opposed to a factual, allegation), and Adam N. Steinman, The Pleading Problem, 62 Stan. L. Rev. (forthcoming May 2010) (defining it in transactional terms); see also Nicholas Tymoczko, Note, Between the Possible and the Probable: Defining the Plausibility Standard After Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, 94 Minn. L. Rev. 505, 520-26 (2009) (describing different circuit interpretations).
43. See Iqbal, 129 S. Ct. at 1955. ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").
44. Twombly, 550 U.S. at 555, 557, 570.
45. See Iqbal, 129 S. Ct. at 1950 ("[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " (quoting Fed. R. Civ. P. 8(a)(2))); see also Stephen B. Burbank, Pleading and the Dilemmas of "General Rules", 2009 Wis. L. Rev. 535, 539 (equating "plausibility" with "reasonable inference"); Hartnett, supra note 11, at 484-85 (same). This definition is probably incomplete: the more accurate formulation is probably that plausibility is an inference that is reasonable in light of other competing inferences. See Iqbal, 129 S. Ct. at 1951-52 ("As between that obvious alternative explanation for the arrests and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion." (citation omitted)); Twombly, 550 U.S. at 565-66 (assessing plausibility in light of common economic experience). This standard approaches, and perhaps even exceeds, the heightened standard under the Private Securities Litigation Reform Act. See 15 U.S.C. § 78u-4(b)(2) (2006); see also Burbank, supra, at 552 (making this argument). For another take, see Mark Anderson &Max Huffman, Iqbal, Twombly, and the Expected Cost of False Positive Error, 20 Cornell J.L. &Pub. Pol'y (forthcoming 2010) (defining plausibility as a function of the expected false positive error costs).
46. Iqbal, 129 S. Ct. at 1450. The Court did not explain why a district judge could be entrusted to use "judicial experience and common sense" in assessing plausibility but not the considerable Rule-based powers to control discovery costs so feared by the Twombly Court. For other criticisms of the "judicial experience and common sense" standard, see Spencer, supra note 42, at 197-201 (worrying that it will lead to elitist assumptions about what is plausible or not, to the detriment of plaintiffs); Adam Liptak, 9/11 Case Could Bring Broad Shift on Civil Suits, N.Y. Times, July 21, 2009, at A10 (quoting Professor Steve Burbank as predicting that it will be "a blank check for federal judges to get rid of cases they disfavor").
47. Twombly, 550 U.S. at 556.
48. Iqbal, 120 S. Ct. at 1952 ("[R]espondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind."). Notably, the dissent agreed with this point. Id. at 1960 (Souter, J., dissenting) ("I agree that the[se] allegations . . . standing alone, do not state a plausible entitlement to relief for unconstitutional discrimination.").
49. Twombly, 550 U.S. at 557 n.5.
50. Professor Bone uses this terminology. See Bone, supra note 35, at 873.
51. Twombly, 550 U.S. at 559 (stating that "judicial supervision in checking discovery abuse has been on the modest side"); see also id. at 560 n.6 ("Given the system that we have, the hope of effective judicial supervision is slim . . . .").
52. Id. at 559 (internal quotation marks and citation omitted).
53. Clermont &Yeazell, supra note 30, at 823 ("The headline need no longer equivocate . . . . The Court has revolutionized the law on pleading."); Posting of Scott Dodson to Civil Procedure and Federal Courts Blog, Beyond Twombly, http://lawprofessors.typepad.com/civpro/2009/05/ beyond-twombly-by-prof-scott-dodson.html (May 18, 2009) ("I think it is fair to say that we have entered a new era in pleadings. Notice is now an aside, probably insignificant in most cases. Instead, pleadings litigation will focus on factual sufficiency."). As a further indication, in the wake of Iqbal, some courts have held that the most recent reaffirmation of notice pleading in a discrimination case, Swierkiewicz, is, at least in part, no longer good law. See Guirguis v. Movers Specialty Servs., Inc., 346 F. App'x 774 (3d Cir. 2009); Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). For attempts to reconcile Twiqbal and Swierkiewicz, see Hartnett, supra note 11, at 502 n.128; Steinman, supra note 42 (manuscript at 32, available at http://ssrn.com/abstract=1442786).
54. See Dodson, Comparative Convergences, supra note 5, at 462-63; see also Clermont, supra note 19, at 1932 ("This gatekeeping move represents the Court's first unmistakable step backward from the modern conception of notice pleading.").
55. Clermont &Yeazell, supra note 30, at 830 ("[A]s to factual sufficiency, the plaintiff practically must plead facts and even some evidence. The plaintiff should give a particularized mention of the factual circumstances of each element of the claim.").
56. Compare Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." (internal quotation marks omitted)), with Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]t is well established that, in passing on a motion to dismiss the allegations of the complaint should be construed favorably to the pleader."), and 5B Wright &Miller, supra note 16, § 1357, at 417 ("A proposition that is at the heart of the application of the Rule 12(b)(6) motion, and one that is of universal acceptance . . . is that for purposes of the motion to dismiss . . . all reasonable inferences that can be drawn from the pleading are drawn in favor of the pleader.").
57. See Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis &Clark L. Rev. 15, 41 (2010) ("The motion to dismiss is now the new summary judgment motion, in standard and possibly effect."); cf. Edward Brunet, Antitrust Summary Judgment and the Quick Look Approach, 62 SMU L. Rev. 493, 510-11 (2009) (arguing that the Court improperly imported a substantive antitrust "plausibility" summary judgment standard into a transsubstantive procedural pleading standard); Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 Wash. U. J.L. &Pol'y 61, 65-66 (2007) (making this argument on the basis of Twombly alone).
58. Branham v. Dolgencorp, Inc., Civil No. 6:09-CV-00037 (W.D. Va. Aug. 24, 2009), available at http://www.vawd.uscourts.gov/opinions/moon/branhamdolgencorpmtd.pdf.
59. Id. at 1.
60. Id. at 4.
61. See Marc Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986). Litigation costs-and discovery costs specifically-have been the subject of much debate over the years. For more, see Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. Rev. 747 (1998) (documenting discovery abuse reforms, particularly those restricting discovery).
62. For perspectives on electronic discovery, see Richard L. Marcus, The Impact of Computers on the Legal Profession: Evolution or Revolution?, 102 Nw. U. L. Rev. 1827, 1843-48 (2008); Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561 (2001).
63. See generally Emery G. Lee III &Thomas W. Willging, Federal Judicial Center, National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (2009) (reporting that satisfaction with the pretrial process is relatively high and discovery costs are relatively reasonable), http://www.fjc.gov/ public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf; Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking, 46 Stan. L. Rev. 1393 (1994) (disputing the perception of widespread discovery abuse); Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits, 49 Ala. L. Rev. 79, 93 (1997) ("Most cases in both state and federal court do not face long delays, nor do most cases have large amounts of discovery." (footnotes omitted)). Even electronic discovery has been addressed by Rule 26 in a way that helps to alleviate the burdens of production. See Fed. R. Civ. P. 26(b)(2)(B). For the perception that discovery costs are a significant problem for defendants and justify the restrictive pleading standards imposed by the Court, see Douglas G. Smith, The Evolution of a New Pleading Standard: Ashcroft v. Iqbal, 88 Or. L. Rev. (forthcoming 2010) (manuscript at 15-17, available at http://ssrn.com/abstryact=1463844).
64. See Linda S. Mullenix, The Pervasive Myth of Pervasive Discovery Abuse: The Sequel, 39 B.C. L. Rev. 683, 685-86 (1998) (relying on data to conclude that complex, high-stakes litigation, handled by large firms with corporate clients, is most likely to involve the cost asymmetry that skews the discovery debate).
65. See Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519, 562-63 (1997) (modeling the costs to defendants of frivolous suits).
66. See Dodson, supra note 6, at 51-52.
67. See Limited Access, supra note 26, at 23-29 (Statement of Stephen B. Burbank) (citing cases where courts dismiss complaints that, in their own view, would have survived a motion to dismiss under the pre-Twombly standard).
68. Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011, 1014, 1034 [hereinafter Seiner, Trouble with Twombly] (stating that "the lower courts are unquestionably using the new plausibility standard to dismiss Title VII claims" and finding a high rate of summary judgment on Title VII claims); Kendall W. Hannon, Note, Much Ado About Twombly: A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. 1811, 1815 (2008) (concluding that dismissal rates rose in civil rights cases after Twombly). The suffering of employment discrimination claims at the hands of Twombly and Iqbal reinforces their status as disfavored claims. See generally Kevin M. Clermont &Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. &Pol'y Rev. 103 (2009) (documenting the low success rate of employment discrimination claims on summary judgment and at trial). But see Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179 (2010) [hereinafter Seiner, After Iqbal] (finding enough success of employment discrimination claims to make the case for continuing pervasive employment discrimination).
69. Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 556 (2010).
70. Cf. Stephen J. Choi et al., The Screening Effect of the Private Securities Litigation Reform Act, 6 J. Empirical Legal Stud. 35, 37 (2009) (reporting that non-nuisance lawsuits likely dropped after the enactment of the PSLRA's stricter pleading standards). Some no doubt have framed their complaints to meet the New Pleading standard, but that possibility only makes the demonstrable increase in dismissal rates more meaningful.
71. The Twombly Court seemed to think that would be the case. It repeatedly suggested that, because of the lack of factual allegations in the pleadings, there was no "reasonably founded hope" that the discovery process would reveal relevant evidence to support the antitrust conspiracy claim at issue. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 562 (2007) (internal quotation marks omitted). This view is in some tension with the Court's tacit concession that, although the claim as pleaded was not plausible, it at least was possible. Id. at 559.
72. See, e.g., Del. Code Ann. tit. 8 § 220 (2003); Guttman v. Huang, 823 A.2d 492 (Del. Ch. 2003) (allowing use of the Delaware investigation statute as a presuit discovery tool).
73. Freedom of Information Act, 5 U.S.C. § 522(b) (2006).
74. Of course, other reasons might cause such a deficiency. Uncovering the necessary facts through non-discovery means might be prohibitively costly. Or, the party or her attorney may have overlooked an opportunity for obtaining the information.
75. See Posting of Scott Dodson to Civil Procedure &Federal Courts Blog, Against Twombly &Iqbal-A Reply to Drug &Device Law Post, http://lawprofessors.typepad.com/civpro/ 2009/06/response-to-drug-device-law-post.html (June 5, 2009) ("The failure to plead a plausible claim is not necessarily an indication that the claim lacks merit."). The opinion in Twombly assumes the opposite. Twombly, 550 U.S. at 559 ("[I]t is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no reasonably founded hope that the discovery process will reveal relevant evidence to support a § 1 claim." (internal quotation marks omitted)).
76. In rare cases, a plaintiff nevertheless may happen to obtain direct evidence of these facts. See, e.g., al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (affirming the denial of a motion to dismiss allegations founded on motive when there was direct evidence of motive). But that is highly exceptional, as the Supreme Court has acknowledged. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (noting in a race discrimination case that "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes"); Bailey v. Alabama, 219 U.S. 219, 233 (1911) ("As the intent is the design, purpose, resolve, or determination in the mind of the accused, it can rarely be proved by direct evidence, but must be ascertained by means of inferences from facts and circumstances developed by the proof.").
77. Posting of Randal Picker to The University of Chicago Law School Faculty Blog, Closing the Doors to (Antitrust) Plaintiffs?, http://uchicagolaw.typepad.com/faculty/2007/05/closing_ the_doo.html (May 21, 2007) (using the term); Bone, supra note 65, at 542 (discussing "asymmetric information").
78. See Dodson, supra note 75 ("In those cases, the information often necessary to meet the plausibility standard is largely in the hands of the defendants."); Lonny Hoffman, Using Presuit Discovery to Overcome Barriers to the Courthouse, Litig., Summer 2008, at 31, 32 (mentioning these cases); Herbert Hovenkamp, The Pleading Problem in Antitrust Cases and Beyond (Nov. 18, 2009) (manuscript at 3, available at http://ssrn.com/abstract=1508511) (asserting that antitrust conspiracies are usually kept secret and in the hands of the defendants); Malveaux, supra note 14, at 87 ("[T]he plausibility standard works an unfair disadvantage in civil rights cases because plaintiffs alleging intentional discrimination, pre-discovery, can often only plead facts that are consistent with both legal and illegal behavior."); Spencer, supra note 38, at 460 (arguing that plausibility pleading "is likely to impose a more onerous burden in those cases where a liberal notice pleading standard is needed most: actions asserting claims based on states of mind, secret agreements, and the like"); Randall S. Thomas &Kenneth J. Martin, Using State Inspection Statutes for Discovery in Federal Securities Fraud Actions, 77 B.U. L. Rev. 69, 71-73 (1997) (noting that corporate fraud is difficult to detect without use of formal discovery); see also Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517 (2010) (discussing the impact of plausibility pleading on civil rights and discrimination claims); Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Buff. L. Rev. 485, 498 (1989) (noting that civil rights plaintiffs "rarely will possess or be able to obtain information pertinent to their cases . . . . available only during discovery").
79. See, e.g., Branham v. Dolgencorp, Inc., Civil No. 6:09-CV-00037 (W.D. Va. Aug. 24, 2009), available at http://www.vawd.uscourts.gov/opinions/moon/branhamdolgencorpmtd.pdf. (dismissing a slip-and-fall case because the plaintiff did not plead whether the defendant knew the liquid was on the floor).
80. See Seiner, After Iqbal, supra note 68, at 216-17.
81. See Aikens, 460 U.S. at 716 ("There will seldom be 'eyewitness' testimony as to the employer's mental processes.").
82. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.4 (2007) (describing facts that would give rise to an inference of an antitrust conspiracy); Epstein, supra note 57, at 74-75 (discussing publicly available information supporting an inference of conspiracy); Geoffrey P. Miller, Pleading After Tellabs, 2009 Wis. L. Rev. 507, 523-24 (discussing publicly available information supporting an inference of scienter in securities fraud); Thomas &Martin, supra note 78 (offering the use of state inspection statutes).
83. See Seiner, After Iqbal, supra note 68, at 216-17.
84. Limited Access, supra note 26, at 16 (Statement of Stephen B. Burbank) ("Perhaps the most troublesome possible consequences of Twombly and Iqbal is that they will deny access to court to plaintiffs and prospective plaintiffs with meritorious claims who cannot satisfy those decisions' requirements either because they lack the resources to engage in extensive pre-filing investigation or because of informational asymmetries."); see also Roy L. Brooks, Conley and Twombly: A Critical Race Theory Perspective, 52 How. L.J. 31, 68-69 (2008) (documenting the Catch-22 in discrimination cases); Tobias, supra note 78, at 498 (noting that civil rights plaintiffs "rarely will possess or be able to obtain information pertinent to their cases . . . . [which would be] available only during discovery").
85. I discuss the possibility of predismissal discovery in greater depth below. See infra notes 89-101 and accompanying text.
86. Fed. R. Civ. P. 11(b)(3) (requiring a party to "certif[y] that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . [the] factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery").
87. See Bone, supra note 65, at 563 (making this prediction); Dodson, supra note 75 ("[E]rroneously equating the failure to plead plausibility with meritlessness will result in fewer meritorious cases filed, fewer meritorious cases surviving to discovery, and fewer injuries resulting from wrongful conduct being redressed."). Plaintiffs who cannot sue might still obtain a presuit settlement, though at a fraction of the value of the case. See Bone, supra note 19, at 927.
88. There are other problems with New Pleading. For example, New Pleading also underscreens by failing to catch claims that, though meeting the factual sufficiency standard, ultimately fail on the merits later in the litigation process. The underscreening effect erodes the cost-saving benefits of the stricter screening mechanism because it allows weak claims to consume court and litigant resources. In addition, the tension between New Pleading and the Federal Forms and cases like Swierkiewicz will create uncertainty costs and additional litigation. Also, the higher factual burden on plaintiffs will impose greater front-end costs on plaintiffs seeking to bulk up complaints for fear of dismissal. The bloating of complaints will cost plaintiffs more to draft them, defendants more to answer them, and the court more to sift through them. Finally, the invitation by Iqbal for district judges to use judicial experience and common sense to apply the plausibility standard (or to determine what is conclusory and what is not) may lead to forum shopping for particular judges. It might also require judges to seek outside guidance on certain technical issues of substantive law, such as antitrust law, to determine what is plausible and what is not.
89. Fed. R. Civ. P.
90. Hartnett, supra note 11, at 503-15; Malveaux, supra note 14, at 106-23; William H. Page, Twombly and Communication: The Emerging Definition of Concerted Action Under the New Pleading Standards, 5 J. Competition L. &Econ. 493, 466-68 (2009). But see Bone, supra note 19, at 934-35 ("Allowing pleading-stage discovery fits the current Rules awkwardly at best.").
91. Fed. R. Civ. P. 26(c) (allowing courts to protect a party from responding to discovery upon a showing of good cause).
92. See Pike &Willis, supra note 21, at 1192 ("Normally [the plaintiff] needs no such aid . . . ."); see also George Ragland, Jr., Discovery Before Trial 60 (1932) (suggesting the same).
93. See, e.g., Malveaux, supra note 14, at 123-24; Page, supra note 90, at 468.
94. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007); see also id. at 560 n.6 ("Given the system that we have, the hope of effective judicial supervision is slim . . . ."); id. at 563 n.8 ("[B]efore proceeding to discovery, a complaint must allege facts suggestive of illegal conduct.") (emphasis added).
95. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
96. Id. at 1954.
97. Twombly, 550 U.S. at 593-94 (Stevens, J., dissenting).
98. See Malveaux, supra note 14, at 113 ("[C]ourts have granted limited discovery after denying dismissal, but prior to merits discovery, on the propriety of qualified immunity."). But see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("Until this threshold immunity question is resolved, discovery should not be allowed."). Professor Hartnett argues that Iqbal's rejection of predismissaldiscovery can be tied to the qualified immunity context. See Hartnett, supra note 11, at 511 ("[I]t is crucial that these statements [rejecting pre-dismissal discovery options] were made in the context of a case involving the defense of qualified immunity."). That argument, however, ignores the transsubstantive nature of other statements in Iqbal that do not appear at all tied to qualified immunity, see, e.g., Iqbal, 129 S. Ct. at 1950 ("Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."); id. at 1953 ("We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process."); Bone, supra note 35, at 859 (noting that although Iqbal might have limited its rejection of predismissal discovery to qualified immunity cases, "it uses language that suggests a broader application"), as well as the transsubstantive statements in Twombly to the same effect, see, e.g., Twombly, 550 U.S. at 559, 560 n.6, 563 n.8.
99. Iqbal, 129 S. Ct. at 1954 ("Because [Iqbal's] complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise."); see also, e.g., Moss v. U.S. Secret Serv., 572 F.3d 962, 974 (9th Cir. 2009) (explaining that the district court "reasonably" stayed all discovery pending resolution of the motion to dismiss on the defendants' qualified immunity defense); Comm. for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177, 1210-11 (N.D. Cal. 2009) (imposing a stay of discovery on the basis of Iqbal).
100. There is a practical obstacle as well. Absent court order, discovery cannot occur before the parties have had their Rule 26(f) conference, which can occur as late as ninety days after any defendant has appeared. See Fed. R. Civ. P. 26(d). Even if the plaintiff gets the time to file a discovery request, the defendant could stonewall with objections. By the time any discovery would have changed hands, the motion to dismiss may have been long since decided.
101. See, e.g., Moss, 572 F.3d at 974-75; Beck v. Dobrowski, 559 F.3d 680, 682 (7th Cir. 2009) (interpreting Twombly to discourage discovery in complex cases "unless the complaint indicates that the plaintiff's case is a substantial one"); Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008); Harris v. Adams County Commc'ns. Ctr., No. 09-cv-01728-MSKKMT, 2010 WL 882648 (D. Colo. Mar. 8, 2010) (issuing a stay of discovery based in part on the rationale of Iqbal); Comm'n for Immigrant Rights, 644 F. Supp. 2d at 1210-11; Bierer v. Bd. of Trs. of Metro. State Coll., No. 09-cv-01034-WYD-KMT, 2009 WL 2242209 (D. Colo. July 24, 2009) (issuing a stay of discovery based in part on the rationale of Iqbal); Schwartz ex rel Estate of Grafner v. Jefferson County Dep't of Human Servs., No. 09-cv-00915-WYD-KMT, 2009 WL 2132416 (D. Colo. July 10, 2009) (same); Albion Int'l, Inc. v. Am. Int'l Chem., Inc., No. 2:07 cv 994 CW, 2009 WL 1835024 (D. Utah June 19, 2009) (referring to a prior stay of discovery based on the rationale of Twombly and Iqbal); Coss v. Playtex Prods., LLC, No. 08 C 50222, 2009 WL 1455358 (N.D. Ill. May 21, 2009) (granting a general stay based on the rationale of Twombly and Iqbal but ordering very focused discovery that the defendant agreed would not be burdensome); Kregler v. City of New York, 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009) (ordering a preliminary hearing to determine whether the complaint passed Twombly and Iqbal muster); DSM Desotech Inc. v. 3D Sys. Corp., No. 08 CV 1531, 2008 WL 4812440 (N.D. Ill. Oct. 28, 2008) (granting a stay based on the rationale of Twombly); McLafferty v. Deutsche Lufthansa A.G., 2008 WL 4612856 (E.D. Pa. 2008). But see Charvat v. NMP, LLC, No. 2:09-cv-209, 2009 WL 3210379 (S.D. Ohio Sept. 30, 2009) (Kemp, Mag. J.) (suggesting that Twombly and Iqbal do not alter the stay analysis vis a vis motions to dismiss); Solomon Realty Co. v. Tim Donut U.S. Ltd., No. 2:08-cv-561, 2009 WL 2485992 (S.D. Ohio Aug. 11, 2009) (rejecting a stay request that was based on Twombly and Iqbal); In re Flash Memory Antitrust Litig., No. C 07-0086 SBA, 2008 WL 62278 (N.D. Cal. Jan. 4, 2008) (rejecting a blanket stay based on Twombly and rejecting a stay); In re Graphics Processing Units Antitrust Litig., No. C 06-07417 WHA, 2007 WL 2127577 (N.D. Cal. July 24, 2007) (rejecting a blanket stay based on Twombly but entering a stay on the facts of the case nonetheless).
102. See Mauro, supra note 9 (reporting such plans by Iqbal's counsel).
103. See Dodson, supra note 6, at 54.
104. See Fed. R. Civ. P. 26(b) (allowing discovery relevant to a claim or defense, and allowing broader discovery only upon a showing of good cause). The 2000 amendments to Rule 26, reducing its default scope to claims or defenses as opposed to subject matter, were specifically designed to prevent parties from fishing for new claims. See id. advisory committee's note to 2000 amends. ("The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings."). For a criticism of this limitation, see Thomas D. Rowe, Jr., A Square Peg in a Round Hole? The 2000 Limitation on the Scope of Federal Civil Discovery, 69 Tenn. L. Rev. 13 (2001).
105. For a more detailed discussion of this possibility, see generally Dodson, supra note 6. Cf. Hoffman, supra note 78 (urging the use of state presuit discovery motions to meet state pleading requirements).
106. See Dodson, supra note 6, at 62-64. Viability may be affected by the nonexistence of a state presuit discovery mechanism, the existence of a state presuit discovery mechanism that requires a state court substantive action, or limitations on an existing state presuit discovery mechanism that preclude the opportunity to discover sufficient information based on the applicable pleading standards. Id.
107. See id. at 64.
108. It is not without some analogous precedent, though. See Thomas &Martin, supra note 78 (urging plaintiffs to use state inspection statutes to gain access to information necessary to survive a federal motion to dismiss).
109. Congress in fact did so in the securities litigation context by enacting the Securities Litigation Uniform Standards Act of 1998 to give federal courts the power to stay state court discovery if state court discovery mechanisms were being used to circumvent more restrictive federal court discovery controls. For a discussion of that backlash, see Newby v. Enron Corp., 338 F.3d 467, 471- 72 (5th Cir. 2003).
110. Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 Vand. L. Rev. 573, 574 (1994).
111. See Bone, supra note 65, at 541 (modeling frivolous suits with complete information symmetry and concluding that these frivolous suits "all settle early, producing little in the way of wasted litigation costs, and settlements are likely to be quite small").
112. See generally id.; Herbert M. Kritzer, Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States (2004). Strike suits may still be filed, but if the meritlessness of the lawsuit is known by both sides, the suit should command only a negligible settlement. See Bone, supra note 65, at 541.
113. See Hoffman, supra note 78, at 34.
114. See id. at 35 ("After all, if taking a few presuit depositions would confirm that no legal wrong had been committed, then the minor cost and inconvenience entailed would certainly be outweighed by the individual and institutional benefits gained by avoiding a full-blown lawsuit.").
115. Id. ("The limited and targeted use of presuit discovery can be a sensible option from the perspective of all parties, along with a social and administrative plus for the court system.").
116. Id. at 34.
117. See id.
118. Tex. R. Civ. P. 202.1, 202.4.
119. Hoffman, supra note 13, at 222; id. at 258-59 (reporting that presuit discovery is rarely denied).
120. Id. at 224.
121. Id. at 255.
122. Id. at 260.
123. See Fla. Hosp. Waterman v. Stoll, 855 So. 2d 271, 276 (Fla. App. 2003).
124. See generally Edward J. Carbone, Presuit Nuts 'n' Bolts, 27 Trial Advoc. Q. 27 (2007).
125. Fla. Stat. § 766.201(2) (2009); Musculoskeletal Inst. Chartered v. Parham, 745 So. 2d 946, 949-50 (Fla. 1999).
126. Fla. Stat. § 766.106(7) (2009).
127. See Jeffrey J. Kroll, The Art and Science of Presuit Discovery, Trial, March 2009, at 28.
128. Hoffman, supra note 78, at 34.
129. See Hartnett, supra note 11, at 512 ("[I]f there is no viable complaint currently framing the dispute, it might be thought that there is no way for a court to determine the scope of discovery, and therefore none is permissible."); Kenneth E. Shore, A History of the 1999 Discovery Rules: The Debates and Compromises, 20 Rev. Litig. 89, 181 (2000).
130. See Fed. R. Civ. P. 26(b). One way around this problem might be to require the plaintiff to provide the witness with a draft complaint. My thanks to Tom Rowe for this suggestion.
131. See Hoffman, supra note 78, at 34.
132. Pa. R. Civ. P. 4003.8(a).
133. Id. 4003.8(b).
134. Berger v. Cuomo, 644 A.2d 333, 337 (Conn. 1994).
135. Id. (citing Potteti v. Clifford, 150 A.2d 207, 213 (Conn. 1959)).
136. Id. (quoting Potteti, 150 A.2d at 213).
137. Driskill v. Culliver, 797 So. 2d 495, 497-98 (Ala. Civ. App. 2001) (allowing pre-action discovery "to determine whether the plaintiff has a reasonable basis for filing an action"); Ex parte Anderson, 644 So. 2d 961, 965 (Ala. 1994) ("Rule 27 provides a limited means by which potential plaintiffs (and their attorneys), within the discretion of the trial court, can examine evidence before actually deciding whether they have a reasonable basis for filing an action.").
138. Ala. R. Civ. P.
139. See Ohio R. Civ. P. 34(D)(1) (requiring a presuit discovery action petitioner to state "The subject matter of the petitioner's potential cause of action" and to identify "The information sought to be discovered with reasonable particularity"); id. 34(D)(3) (requiring a court to order the discovery if, inter alia, the petitioner would be "otherwise unable to bring the contemplated action"); Tex. R. Civ. P. 202.2 (requiring presuit discovery petitioners to identify the person to be deposed, the testimony expected to be elicited, and the reason for requesting the deposition); Holzman v. Manhattan &Bronx Surface Transit Operating Auth., 707 N.Y.S.2d 159, 161 (N.Y. App. Div. 2000) (requiring a pre-action discovery petitioner to demonstrate a meritorious cause of action and that the information sought is material and necessary to the actionable wrong). In addition, the UK allows for pre-action disclosure in similar circumstances. See Civil Procedure Rules, 1998, S.I. 1998/3132, 31.16; Norwich Pharmacal Co. v. Comm'rs of Customs &Excise, (1973) 2 All ER 943.
140. 15 U.S.C. §§ 77z-1(b)(1), 78u-4(b)(3)(B) (2006).
141. See, e.g., In re Sunrise Senior Living, Inc., 584 F. Supp. 2d 14, 18 (D.D.C. 2008).
142. My thanks to Christopher Bruner for pointing this out.
143. Relatedly, Professor Bone has recommended requiring the plaintiff to file an affidavit describing the investigative steps she took to gather information for her complaint to ensure that the plaintiff is not seeking predismissal discovery without good reason. Bone, supra note 19, at 934.
144. Pa. R. Civ. P. 4003.8(b).
145. Berger v. Cuomo, 644 A.2d 333, 337 (Conn. 1994).
146. Ohio R. Civ. P. 34(D)(1).
147. Overly restrictive obligations can have undesirable chilling effects, as they did in an earlier iteration of Rule 11. See Melissa L. Nelken, Sanctions Under Amended Rule 11-Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313 (1986); cf. Stephen B. Burbank, Rule 11 in Transition: The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11 (1989); Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. Pa. L. Rev. 1925 (1989) (discussing the effect of the 1983 Rule 11 amendments). For an overview of Rule 11 and its amendments, see Paul D. Carrington &Andrew Wasson, A Reflection on Rulemaking: The Rule 11 Experience, 37 Loy. L.A. L. Rev. 563 (2004).
148. For a similar suggestion, see Hoffman, supra note 13, at 274-76.
149. Fed. R. Civ. P. 56(f); see also Crawford-El v. Britton, 523 U.S. 574, 599 n.20 (1998) ("The judge does . . . have discretion to postpone ruling on a defendant's summary judgment motion if the plaintiff needs additional discovery . . . ."); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) ("[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition").
150. See Edward Brunet, The Timing of Summary Judgment, 198 F.R.D. 679, 687 (2001).
151. See id. at 700-02.
152. Fed. R. Civ. P. 56(f). Some courts have held that an affidavit is not specifically necessary if the opposition brief itself makes a persuasive case for additional discovery. Brunet, supra note 150, at 691-94.
153. Brunet, supra note 150, at 689.
154. Id. at 690, 703-07.
155. See supra note 57.
156. See Bone, supra note 65, at 560-63 (explaining the benefits of encouraging prefiling investigation).
157. See Dodson, supra note 75 (conceding that "discovery costs can be unduly high and abusive," especially for defendants).
158. For a firmer proposal along the lines that I discuss below, see Institute for the Advancement of the American Legal System at the University of Denver &American College of Trial Lawyers Task Force on Discovery and Civil Justice, 21st Century Civil Justice System: A Roadmap for Reform (2009), http://www.abajournal.com/files/Pilot_Project_ Rules_for_Web.pdf.
159. Hoffman, supra note 13, at 259.
160. See id. at 273 (reporting that judges rarely deny motions for presuit discovery or limit presuit discovery once granted).
161. See Brunet, supra note 150, at 691-93.
162. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 298 (1968) ("[T]he discovery obtainable under Rule 56(f) to oppose a motion for summary judgment would normally be less extensive in scope than the general discovery obtainable under Rule 26 . . . ." (footnote omitted)).
163. See Fed. R. Civ. P. 33 (limiting interrogatories); id. 30 (limiting depositions).
164. See Subrin, supra note 63, at 95-96.
165. See id. at 94-95.
166. Professor Bone similarly has recommended that federal presuit discovery be limited by a per se rule of one deposition per defendant and a narrowly tailored set of document requests. Bone, supra note 19, at 934.
167. Others have alluded to this possibility in passing. See, e.g., Spencer, supra note 30, at 31 ("Alternatively, plaintiffs could be charged with shouldering the cost of any limited, preliminary discovery the court decides to allow to determine the potential merit of their claims.").
168. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975) (indicating that the American Rule applies to attorney's fees and other costs of litigation). The usual rule is controversial. For a discussion generally supportive of one-way fee-shifting rules, see Thomas D. Rowe, Jr., Indemnity or Compensation? The Contract with America, Loser-Pays Attorney Fee Shifting, and a One-Way Alternative, 37 Washburn L.J. 317 (1998).
169. For an example, see the Court's statement in Oppenheimer Fund, Inc. v. Sanders: Under [the discovery] rules, the presumption is that the responding party must bear the expense of complying with discovery requests, but [it] may invoke the district court's discretion under Rule 26(c) to grant orders protecting [it] from "undue burden or expense" in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery. 437 U.S. 340, 358 (1978); see also, e.g., Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (recognizing that cost-shifting can be imposed for burdensome discovery and imposing it for electronically stored information).
170. See Fed. R. Civ. P. 26(b)(2)(B) (allowing the court to compel discovery of such information and to "specify conditions for the discovery"); id. advisory committee's note to 2006 amends. (stating that such conditions include requiring "payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible."). Costshifting for electronic discovery had vocal supporters even before the amendments to the Rules. See, e.g., Redish, supra note 62 (arguing for a conditional cost-shifting model for electronic discovery).
171. See, e.g., Fed. R. Civ. P. 26(g)(3), 30(d)(2), 30(g), 37(a)(5), 37(b)(2)(C), 37(c)(1)(A), 37(c)(2), 37(d)(3).
172. Others have suggested cost-shifting for even normal discovery as a way to alleviate the difficulties of Twombly and Iqbal. See, e.g., Bone, supra note 19, at 934 (suggesting that if the court believes a suit to be "probably meritless," then the court could let it go forward only if the plaintiff agrees to pay all of the defendants' costs in the event the case is dismissed on summary judgment). But cf. Spencer, supra note 30, at 31 (discussing the prospect of cost-shifting in pleadings but noting that modification of the American Rule might "chill the claims of legitimate grievants").
173. See Oppenheimer Fund, Inc., 437 U.S. at 358 ("Under [the discovery] rules, the presumption is that the responding party must bear the expense of complying with discovery requests . . . .").
174. See supra note 171 and accompanying text.
175. The Equal Access to Justice Act contemplates one-way cost- and fee-shifting for plaintiffs who prevail against the government and in which the government's position was not substantially justified. 28 U.S.C. § 2412 (2006). Other statutes also provide for one-way shifting in lawsuits against the government. See, e.g., 42 U.S.C. § 1988(b) (2006). Although these circumstances are quite distinguishable from cost-shifting in New Discovery, they do evince a general preference for using cost- and fee-shifting to facilitate lawsuits against the government, and that general preference is consistent with exempting the converse cost-shifting in New Discovery.
176. See Tyler T. Ochoa & Andrew J. Wistrich, The Puzzling Purposes of Statutes of Limitation, 28 Pac. L.J. 453, 460-500 (1997) (discussing the underlying purposes of limitations periods).
177. 28 U.S.C. § 1367(d) (2006).
178. Compare Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530 (1949) (holding that state tolling rules apply to state claims heard in federal court under Erie), with Jinks v. Richland County, 538 U.S. 456 (2003) (upholding the constitutionality of § 1367(d)).
179. See 28 U.S.C. § 2072(b) (2006) (requiring that Federal Rules "not abridge, enlarge or modify any substantive right"). But see Fed. R. Civ. P. 15(c) (providing for the "relation back" of an amended pleading to the date of an original pleading, notwithstanding state law that would provide for the expiration of the limitations period in the interim). If the concern is too high that a tolling rule would run afoul of the Rules Enabling Act, Congress easily could amend the Act to allow the rule, as it has in the past in other circumstances. See 28 U.S.C. § 2072(c) (2006) (allowing the rules to determine what is "final" within the meaning of § 1291).
180. Courts have done just this in the past. See, e.g., Old Time Enter. v. Int'l Coffee Corp., 862 F.2d 1213, 1216 (5th Cir. 1989).
181. New Discovery might also occur after the granting of a motion to dismiss, but I do not view this as an independent possibility. Either the court conditionally grants the motion to dismiss to allow the plaintiff an opportunity to file an amended complaint, in which case any discovery technically would be predismissal, or the court grants the motion to dismiss and thereafter lacks rule authority to allow discovery except as provided under Rule 27. See, e.g., In re Flash Memory Antitrust Litig., No. C 07-0086 SBA, 2008 WL 62278, at 5 (N.D. Cal. Jan. 4, 2008). But see Hartnett, prosupra note 11, at 512 (suggesting that even after a dismissal, "the case is still alive and the discovery rules still apply").
182. See supra text accompanying notes 89-101.
183. One court already has done something similar, though without cost-shifting. Kregler v. City of New York, 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009) (allowing limited discovery on the Twiqbal deficiencies identified in the defendant's motion to dismiss).
184. Cf. Bone, supra note 19, at 934-35 ("If pleading-stage discovery is a good way to deal with the uninformed plaintiff, the Federal Rules should be revised to authorize it explicitly. Allowing pleading-stage discovery fits the current Rules awkwardly at best.").
185. My thanks to Tim Zick for prodding me to think about the uniformity problems of an ad hoc doctrinal, as opposed to a rule-based, solution.
186. For a preference on these grounds for rules over judicial discretion in the discovery context, see Subrin, supra note 63, at 94-96.
187. See supra text accompanying notes 9-10.
188. See Ann K. Wooster, Annotation, Construction and Application of Fed. R. Civ. P. 27, 37 A.L.R. Fed. 2d 573 (2009) (citing cases). For a comprehensive study of Rule 27, see Nicholas A. Kronfeld, Note, The Preservation and Discovery of Evidence Under Federal Rule of Civil Procedure 27, 78 Geo. L.J. 593 (1990).
189. Kronfeld, Note, supra note 188, at 613 (recounting the drafting history).
190. James A. Pike & John W. Willis, Federal Discovery in Operation, 7 U. Chi. L. Rev. 297, 321-22 (1940).
191. See, e.g., In re Ford, 170 F.R.D. 504, 509 (M.D. Ala. 1997); Kronfeld, Note, supra note 188, at 613-15 (detailing other instances).
192. See Dodson, supra note 6, at 55-56; Hoffman, supra note 13, at 233-35; Rupert F. Barron, Annotation, Existence and nature of cause of action for equitable bill of discovery, 37 A.L.R. 5th 645 (1996). Only one federal court since the 1991 amendments to Rules 34 and 45 hasinforrecognized the availability of the bill. See Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir. 1993).
193. See Ford, 170 F.R.D. at 504 (dismissing a wrongful death claim based on the inability of the plaintiff to identify the proper defendant).
194. Tex. R. Civ. P. 202.1, 202.4.
195. Pa. R. Civ. P. 4003.8.
196. Ala. R. Civ. P. 27; Ex parte Anderson, 644 So. 2d 961, 965 (Ala. 1994); see also Driskill v. Culliver, 797 So. 2d 495, 497-98 (Ala. Civ. App. 2001) (allowing pre-action discovery "to determine whether the plaintiff has a reasonable basis for filing an action").
197. N.Y. C.P.L.R. 3102(c) (Consol. 2010) ("Before an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order."); Ohio R. Civ. P. 34(D)(1) ("[A] person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule."); Huge v. Ford Motor Co., 803 N.E.2d 859, 861 (Ohio Ct. App. 2004) (allowing an action for discovery "to uncover facts necessary for pleading"); Benner v. Walker Ambulance Co., 692 N.E.2d 1053, 1055 (Ohio Ct. App. 1997) (same).
198. Hoffman, supra note 13, at 251-52 (estimating that Texas presuit discovery has been used approximately 4,500 times from 1999 to 2005 and that over 50 percent of Texas attorneys were involved in presuit discovery during that same period).
199. See Scott Dodson, The Challenge of Comparative Civil Procedure, 60 Ala. L. Rev. 133, 140 (2008).