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Thursday, December 03, 2009

The Twombly/Iqbal Discovery Link

    Those in the know about the Civil Procedure pleading world are well versed in the controversial reception that has greeted the Supreme Court's Twombly (2007) and Iqbal (2009) decisions, which imposed a new "plausibility" standard for the adequacy of stating a valid claim in a federal complaint under Fed. R. Civ. P. 8(a)(2).  So, for example, in Iqbal the Court ruled that plaintiff's allegations of invidious discrimination in the post-9/11 roundup of Arab Muslim men (usually for immigration violations) were not "plausible."  (That would probably be news to the plaintiffs and their counsel in Korematsu v. United States, the infamous WWII Japanese internment case.)  The controversy is in the news again after the Senate held hearings yesterday on those two decisions and the status of federal pleading law.  A brief summary of the hearings can be found here.  University of Pennsylvania Law Professor Stephen Burbank testified.

    In Twombly and Iqbal, the Court denied that "plausibility" was a heightened standard, and distinguished it from the higher "particularity" pleading standard that applies to fraud claims under Fed. R. Civ. P. 9(b).    Most commentators reject these assertions.  Commentators also question how the new "plausibility" standard can be reconciled with Fed. R. Civ. P. Form 11, which provides an example of a very brief, supposedly adequate negligence pleading, which Fed. R. Civ. P. 84 declares is sufficient to satisfy Rule 8(a)(2).

    Two things seem clear from Twombly and Iqbal.  First, "notice pleading" under Rule 8(a)(2) no longer demands merely that the defendant understand what it is being sued for so that it can make a meaningful choice about how to defend.  Both the Twombly and Iqbal defendants knew what they were being sued for, and could adequately present a defense.  But under "plausibility," that is no longer enough.

    Second, Twombly and Iqbal were animated by a lost faith in litigation's discovery process, at least in so far as discovery has changed due to the rise of technology.  The federal court system has been struggling with how to respond to e-discovery changes, and at the end of 2006 even amended the Federal Rules of Civil Procedure to address e-discovery.  Apparently, the Supreme Court has no faith that those amendments will meaningfully avoid the Court's concern that discovery in general, and e-discovery in particular, can be unduly burdensome, as both Twombly and Iqbal were decided subsequent to the e-discovery amendments.

    The majorities in both Twombly and Iqbal denied that existing discovery rules could sufficiently cabin discovery.  Thus, suggestions for how to control discovery may offer meaningful responses to Twombly/Iqbal, which makes interesting a report jointly issued by the American College of Trial Lawyers and the Advancement of the American Legal System at the University of Denver, 21st Century Civil Justice System: A Roadmap for Reform.

Posted by Fabio Arcila on December 3, 2009 at 03:16 PM in Civil Procedure | Permalink


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Fabio--I agree with your comments about the fallout from Twombly/Iqbal. Seems to me that Iqbal tied up a few loose ends from Twombly (which is helpful!), but the Twombly analysis did not make much sense when applied to the actual pleadings in Iqbal. Others before me have bemoaned this "activist" Supreme Court for trying to fix perceived problems with the cost of discovery by judicially modifying the pleading standards in the FRCP....
On the issue of discovery costs, I have written elsewhere that the e-discovery amendments to the discovery rules will not be effective in reducing the costs of discovery. (The 2006 amendments were just the most recent in a whole series of amendments that (each on their own) were supposed to fix the problem of discovery costs.) The rulesmakers have been unwilling to come out and say directly that there should be less discovery. Instead they give the courts discretion to order less discovery, but courts continue to apply the discovery rules as they remember them from thirty+ years ago. Maybe the Supreme Court just can't take it any more....
If Congress moves us back toward Conley or some other pre-Twombly standard, it will be interesting to see whether they also consider modifying the scope and limits of discovery.
Henry Noyes
Chapman University School of Law

Posted by: Henry Noyes | Dec 3, 2009 4:33:09 PM

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