New Pleading, New Discovery
38 Pages Posted: 21 Dec 2009 Last revised: 12 Nov 2012
Date Written: February 19, 2010
Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is in the hands of defendants. New Pleading thus screens out these claims even though they may have merit. This article offers a solution to New Pleading's problems of information asymmetry: New Discovery. New Discovery recognizes the need for limited presuit or pre-dismissal discovery to provide plaintiffs the opportunity to gather the facts necessary to comply with New Pleading's strictures. The article presents a normative defense of New Discovery, offers some guiding principles and tools for controlling its scope and cost, and explores how New Discovery might work both under the current discovery scheme and in the context of needed discovery reforms.
Keywords: Twombly, Iqbal, pre-suit discovery, presuit discovery, pre-complaint, pre-filing, pre-dismissal discovery, new pleading, Rule 8
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