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Friday, October 19, 2018

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Posted by Howard Wasserman on October 19, 2018 at 03:43 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


Under Rule 11(b)(2), it suffices either that "factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." The part of this language starting with "if" seems to permit the "educated speculation" that Howard discusses. Also, the allegations need not be based on knowledge, but can instead be based on "information[] and belief, formed after an inquiry reasonable under the circumstances."

Interestingly to me at least, Rule 11 was barely discussed in Twombly, and even then only in passing in a footnote to the dissent. Iqbal did not discuss it at all. Maybe that's because it was agreed that all factual allegations are taken as true, but still, you might expect some more discussion of the Rule's impact.

Posted by: hardreaders | Oct 22, 2018 11:10:59 AM

The idea behind Conley was good-faith speculation. Plead the facts you know and allow some leeway to speculate, based on inferences from known facts, about what you can't know. No one said it was liberty to allege anything at all. But there was not supposed to be this distinction between facts/evidence and speculation.

Posted by: Howard Wasserman | Oct 21, 2018 11:34:42 PM

I'm not sure who said that a pleading is supposed to be speculative. It apparently has turned into that, but I wonder whether it was ever supposed to be that. Discovery is to help discover evidence, but (I thought) the plaintiff is supposed to have a good basis for his belief that the allegations are true, not just speculate.

Posted by: Biff | Oct 21, 2018 1:08:10 PM

You're criticizing a Slate writer for accepting, rather than taking the opportunity to discuss and rail against, Supreme Court decisions in Iqbal and Twombly? That's funny.

Posted by: Sam | Oct 19, 2018 9:00:05 PM

Interesting and important post and related article . But the case of Bartnicki V. Vopper is bit different . For there , the publisher , was apparently innocent . He got lawfully ( apparently ) a stolen electronic communication . That is to say , that he had to do with publication indeed , but not with the interception of the records . While here of course , Trump and his personnels during the campaign , may become finally implicated in the original or fundamental offense . This can be , a game changer of course.

Concerning discovery ( especially in first amendment issues ) one should not forget , the the plaintiff bears the burden to persuade the court , that such discovery , may change essentially things . May create or corroborate essentially the subject matter or the wrongdoing of defendant . And that what has happened recently with Clifford V. Trump , I quote :

Specifically, Plaintiff contends that she needs to conduct discovery to determine if Mr. Trump was involved in the 2011 threat against her or if he purposefully avoided learning about the 2011 threat. See Opposition at 11. Plaintiff believes that discovery pertaining to these issues will help her to establish that Mr. Trump acted with actual malice or reckless disregard for the truth (i.e. if Ms.Clifford can provide evidence showing that Mr. Trump knew of the 2011 threat, then he tweeted a lie when he challenged Plaintiff's reporting of the 2011 threat). (See Transcript of Proceedings at 29:23-30:4.) However, Plaintiff's reasoning is entirely circular. She assumes that Mr. Trump knew of the 2011 threat, argues in her Complaint and her briefing that Mr. Trump knew of the 2011 threat, and then asks this Court for discovery to prove that Mr. Trump knew of the 2011 threat. In doing so, Plaintiff does not allege facts establishing how Mr.Trump knew or did not know about the 2011 threat in the first place. Plaintiff must do this to sustain a cause of action for defamation.


Posted by: El roam | Oct 19, 2018 5:26:53 PM

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