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Iqbal is Not a Game-Changer for Discovery in Civil Rights Cases

18 Pages Posted: 1 May 2012 Last revised: 26 Oct 2013

Matthew L Garcia

Bach & Garcia LLC

George Bach

University of New Mexico - School of Law

Date Written: December 26, 2012


In 2009, the United States Supreme Court handed down its decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Although the Court’s decision in Iqbal addressed only the narrow issue of the proper means for assessing the sufficiency of a complaint under Federal Rule of Civil Procedure 8, many defendants, and some federal district courts, view Iqbal as a game-changer on discovery in cases in which a defendant has filed a motion for qualified immunity. Courts commonly misinterpret dicta in Iqbal as requiring a stay of all discovery upon the filing of a motion for qualified immunity by any defendant. Defendants now routinely argue that once any individual defendant files a motion for qualified immunity, all discovery is stayed against all defendants, pending the outcome of the qualified immunity motion filed by the one defendant. Nowhere in its opinion did the Court indicate that it was undoing long-established precedent that an assertion of qualified immunity shields public officials only from that discovery which is disruptive or overreaching. Rather, the Court’s discussion was limited solely to rejecting Iqbal’s contention that the construction of Rule 8 should be tempered in light of the limited discovery afforded by the lower courts. The misinterpretation of the Court’s holding in Iqbal is problematic because it effectively strips trial courts of their traditional authority to regulate discovery. Given their close proximity to the facts and issues presented, district courts must be able to retain — and exercise — their discretionary control over the discovery process in a case-by-case manner. Otherwise, courts’ efficiency is undermined, contrary to legislative command and long-established judicial practices. The best practice — and one which considers both the interests of the public official in avoiding the burdens of litigation as well as the plaintiff’s right to prosecute her case — is for the trial court to “take a peek” at the dispositive motion raising qualified immunity, and focus discovery accordingly, if necessary. This approach leaves intact the trial courts’ discretionary power to manage their own dockets.

Suggested Citation

Garcia, Matthew L and Bach, George, Iqbal is Not a Game-Changer for Discovery in Civil Rights Cases (December 26, 2012). 42 N.M. L. Rev. 329 (Summer 2012); UNM School of Law Research Paper No. 2012-05. Available at SSRN:

Matthew L Garcia

Bach & Garcia LLC ( email )

300 Central SW
Suite 2000 East
Albuquerque, NM 87102
United States

George Bach (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

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