DISCOVERY AFTER IQBAL:

WHERE DO WE GO FROM HERE?

44th Transferee Judges‟ Conference

Palm Beach, FL

November 2, 2011

Judge Lee H. Rosenthal Professor Steven S. Gensler

United States District Court University of Oklahoma

Southern District of Texas College of Law

Houston, TX Norman, OK

“The new rules . . . restrict the pleadings to the task of

general notice-giving and invest the deposition–discovery

process with a vital role in the preparation for trial. . . . The

various instruments of discovery now serve . . . as a device,

along with the pre-trial hearing under Rule 16, to narrow and

clarify the basic issues between the parties.”

Hickman v. Taylor, 329 U.S. 495, 501 (1947)

“[T]he deposition-discovery rules are to be accorded a broad

and liberal treatment. No longer can the time-honored cry of

„fishing expedition‟ serve to preclude a party from inquiring

into the facts underlying his opponent‟s case. Mutual

knowledge of all the relevant facts gathered by both parties is

essential to proper litigation. To that end, either party may

compel the other to disgorge whatever facts he has in his

possession.”

Hickman v. Taylor, 329 U.S. 495, 507 (1947)

“[S]implified „notice pleading‟ is made possible by the liberal

opportunity for discovery and the other pretrial procedures

established by the Rules to disclose more precisely the basis of

both claim and defense and to define more narrowly the

disputed facts and issues.”

Conley v. Gibson, 355 U.S. 41, 47-48 (1957)

“To the extent that [discovery] permits a plaintiff with a

largely groundless claim to simply take up the time of a

number of people, with the right to do so representing an in

terrorem increment of settlement value, rather than a

reasonably founded hope that the process will reveal

relevant evidence, it is a social cost rather than a benefit.”

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723, 741 (1975)

“One of the most significant insights that skilled trial judges

have gained in recent years is the wisdom and necessity for

early judicial intervention in the management of litigation.”

Hoffman-LaRoche Inc. v. Sperling,

493 U.S. 165, 171 (1989)

“[F]ederal courts must rely on summary judgment and

control of discovery to weed out unmeritorious claims

sooner rather than later.”

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 168-69 (1993)

“Rule 26 vests the trial judge with broad discretion to tailor

discovery narrowly and to dictate the sequence of discovery

. . . The trial judge therefore can manage the discovery

process to facilitate prompt and efficient resolution of the

lawsuit.”

Crawford-El v. Britton, 523 U.S. 574, 598-99 (1998)

“The simplified notice pleadings standard relies on liberal

discovery rules and summary judgment motions to define

disputed facts and issues and to dispose of unmeritorious

claims . . . „The provisions for discovery are so flexible and

the provisions for pretrial procedure so effective, that

attempted surprise in federal practice is aborted very

easily, synthetic issues detected, and the gravamen of the

dispute brought frankly into the open for inspection of the

court.‟”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002)

(quoting Wright & Miller, Federal Practice and Procedure)

“It is no answer to say that a claim just shy of a plausible

entitlement to relief can, if groundless, be weeded out early

in the discovery process through „careful case

management,‟ given the common lament that the success of

judicial supervision in checking discovery abuse has been

on the modest side . . . Probably, then, it is only by taking

care to require allegations that reach the level suggesting

conspiracy that we can hope to avoid the potentially

enormous expense of discovery in [meritless] cases.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007)

(internal citations omitted)

“Rule 8 marks a notable and generous departure from the

hypertechnical code-pleading regime of a prior era, but it

does not unlock the doors of discovery for a plaintiff armed

with nothing more than conclusions.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)

“We have held . . . that the question presented by a motion

to dismiss a complaint for insufficient pleading does not

turn on the controls placed upon the discovery process. . . .

Our rejection of the careful-case-management approach is

especially important in suits where Government-official

defendants are entitled to assert the defense of qualified

immunity . . . [The promise of] minimally intrusive

discovery . . . provides especially cold comfort in this

pleading context.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009)

2020

2010

2000

1990

1980

1970

1960

1950

1940

[1938] FRCP

[1947] Hickman

[1957] Conley

[1975] Blue Chip Stamps

[1989] Hoffman-LaRoche

[1993] Leatherman

[1998] Crawford-El

[2002] Swierkiewicz

[2007] Twombly [2009] Iqbal

2020

2010

2000

1990

1980

1970

1960

1950

1940

[1938] FRCP

[1947] Hickman

[1957] Conley

[1975] Blue Chip Stamps

[1989] Hoffman-LaRoche

[1993] Leatherman

[1998] Crawford-El

[2002] Swierkiewicz

[2007] Twombly [2009] Iqbal

Rule 34 [1970]

Rule 16; Rule 26(b), (g) [1983]

Rule 16; Rule 26(a), (f) [1993]

Rule 26(a), (b), (f) [2000]

E-Discovery [2006]

Rule 26(a)(2); Rule 56 [2010]

Rule 45 [2013] Preservation [20??]

POST – IQBAL QUESTIONS

1. What is the appropriate threshold for getting to

discovery?

2. Has the Supreme Court overstated the problem

of discovery expense? Understated?

3. Can a system based on active judicial case

management actually work?

EFFECTIVE DISCOVERY

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Old way:

• “Go get it all in one

wave”

• New way:

• Structured

• Integrated with

phased SJ

EFFECTIVE DISCOVERY

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Low Hanging Fruit

• Start with the “best”

sources

• ease of access

• most relevant content

EFFECTIVE DISCOVERY

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Start in the center

• Work your way out as

needed

• Inherently proportional

EFFECTIVE DISCOVERY

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Preservation

• Scope

• Privilege Review

• F.R.E. 502

EFFECTIVE DISCOVERY

• Phased

• Focused

• Iterative

• Less Fear-Driven

• Cooperative

• Change “shoot first,

ask later” attitude

• “Ask first” Rules

• 26(d)

• 26(f)

• 34(b)

• More important than

ever

EFFECTIVE DISCOVERY

ACTIVE CASE MANAGEMENT

• “Live” Rule 16 Conferences

• Promote Early Planning by Parties

• Implement Discovery Management

• Prioritize Pretrial Activities

• Determine Ongoing Management Needs

• Motions Management

• Phasing/Timing

• Pre-motion Conferences

Civil Litigation

Management Manual

Second Edition

The Judicial Conference of the United States

Committee on Court Administration and Case Management

2010

This manual is for the guidance of judges. It is not intended to be relied

upon as authority, and it creates no rights or duties