Pleading, Discovery and the Federal Rules: Exploring the Foundations of Modern Procedure

43 Pages Posted: 4 Nov 2010

Date Written: November 3, 2010


As the Rules Advisory Committee considers proposals to make significant changes to the Federal Rules of Civil Procedure in light of the Supreme Court’s controversial pleading decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, it is an appropriate time to reconsider the normative deep structure of modern procedure (what can be called the "litigation matrix"),and to test the current pleading and discovery rules by that standard. This Article seeks to perform both tasks. It proposes a list of sometimes complementary, sometimes conflicting values that our procedural system should be deemed to foster, and then tests the approaches adopted in the Federal Rules by the standard of those underlying values. The Article concludes that far from being the villain that it is often portrayed to be, the Supreme Court’s “plausibility” requirement for pleadings represents a fair and efficient compromise of the competing interests involved, and properly fosters the synthesis of procedural values that make up the system’s litigation matrix. Far from imposing the rigid “fact pleading” standard imposed in pre-Federal Rules practice, the test permits a complaint to go forward even when it lacks a detailed description of defendant’s behavior, as long as the non-conclusory facts alleged give rise to the reasonable belief that - assuming the truth of those allegations - unlawful acts likely have been committed. The Article asserts that far from disrupting preexisting Supreme Court pleading doctrine, the plausibility standard is consistent with all of the Court’s prior decisions, including the holding in its cornerstone pleading decision, Conley v. Gibson. It demonstrates that the only alternatives to the rejected fact pleading standard and the adopted plausibility standard is one that allows plaintiffs to proceed to the often costly and burdensome process of discovery on the basis of nothing more than vague, conclusory and unsupported allegations of wrongdoing on the part of the defendant (what can be be called a "notice pleading minus" standard). It further establishes that such a standard is both inefficient and unfair, and therefore must be rejected under the controlling litigation matrix. While the Article argues that the plausibility standard is fully consistent with the text and intent of Rule 8(a)’s pleading standard, it urges an amendment expressly adopting the language of the plausibility standard, in order to put an end to the doctrinal confusion that has often plagued lower court decisions interpreting the rule.

The Article also considers the Federal Rules’ strategies to control discovery abuse, concluding that all such methods are inadequate because of their inability to put an end to the problems of abusive and excessive discovery. It argues that the most effective means of implementing the litigation matrix would be to recognize that the costs of discovery are, in the first instance, appropriately to be attributed to the requesting party, rather than to the responding party. The Article thus rejects current practice concerning discovery cost allocation, which in any event finds no grounding in the text of the Federal Rules.

Keywords: Civil Procedure, Discovery, Pleading; Federal Rules of Civil Procedure

JEL Classification: K40, K41

Suggested Citation

Redish, Martin H., Pleading, Discovery and the Federal Rules: Exploring the Foundations of Modern Procedure (November 3, 2010). Available at SSRN: or

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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