Discovery, burdens, risks, and Iqbal

The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here).

The point of departure between D&DL and critics of the new pleading regime (including me) ultimately comes down to placement of litigation burdens and risks.

Looser pleading recognizes that plaintiffs often lack critical information at the outset of litigation and need discovery to learn key information that shows the merit (or lack thereof) of their claim. But it burdens the defendant with costly and wide-ranging discovery. D&DL argue that Conley ceased to be workable with the broad changes to the discovery rules that began in 1966 and 1970 (the procedural flipside to my argument about the expansion of substantive federal law post-1938). Looser pleading produces so-called Type I errors--morecases get past pleading into discovery, at cost to the defendant, only to be found to lack merit.

Stricter pleading relieves defendants of the burden and expense of discovery in cases in which there likely is no there there, as indicated by the complaint. But this burdens (unfairly, in my view) the plaintiff with 1) the often-impossible task of framing a detailed complaint when she only can get the necessary evidence through discovery and 2) the risk of dismissal when she is unable to provide the necessary detail in the pleading (this is what was going on in Twombly and, potentially, Iqbal). Stricter pleading produces so-called Type II errors--potentially meritorious cases are deterred or dismissed with the plaintiff never having had a chance to fully explore the evidence in support of the claim.

So the point of departure is at the policy level. Do we prefer Type II errors imposing burdens on plaintiffs or Type I errors imposing burdens on defendants? And the answer will not be value-neutral. But the presence of a non-neutral policy question highlights two final points.

The first goes to a different aspect of the evolution of law, and thus procedure, since 1938. Seventy years ago, parties were largely interchangeable. A person or business entity was as likely to be a defendant as a plaintiff. So big business saw less of a need to push a defense-favorable view of the procedural rules, because a business might find itself as a plaintiff enjoying the benefits of notice pleading. There is far less interchangeability today--corporations and government are almost always defendants (and repeat defendants at that) who know they will almost exclusively enjoy benefits from a defense-favorable pleading regime.

The second goes to a procedural criticism of Iqbal and Twombly. To the extent the choice between the old Conley system and the new Iqbal/Twombly system is a policy determination, it should not come about through a decision in a case, but should be established through the notice-and-comment, increasingly democratized and political, Rules Enabling Act process.