D ISCOVERY A FTER I QBAL : W HERE D O W E G O F ROM H ERE ? 44 th 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 „careful in the discovery process through 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 [2009] Iqbal 2010 [2007] Twombly [2002] Swierkiewicz 2000 [1998] Crawford-El [1993] Leatherman [1989] Hoffman-LaRoche 1990 1980 [1975] Blue Chip Stamps 1970 1960 [1957] Conley 1950 [1947] Hickman 1940 [1938] FRCP
2020 Preservation [20??] Rule 45 [2013] Rule 26(a)(2); Rule 56 [2010] [2009] Iqbal 2010 [2007] Twombly E-Discovery [2006] [2002] Swierkiewicz Rule 26(a), (b), (f) [2000] 2000 [1998] Crawford-El [1993] Leatherman Rule 16; Rule 26(a), (f) [1993] [1989] Hoffman-LaRoche 1990 Rule 16; Rule 26(b), (g) [1983] 1980 [1975] Blue Chip Stamps Rule 34 [1970] 1970 1960 [1957] Conley 1950 [1947] Hickman 1940 [1938] FRCP
P OST – I QBAL Q UESTIONS 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?
E FFECTIVE D ISCOVERY • Phased • Focused • Iterative • Less Fear-Driven • Cooperative
E FFECTIVE D ISCOVERY • Phased • Old way: • “Go get it all in one • Focused wave” • New way: • Iterative • Structured • Less Fear-Driven • Integrated with phased SJ • Cooperative
E FFECTIVE D ISCOVERY • Phased • Low Hanging Fruit • Focused • Start with the “best” sources • Iterative • ease of access • Less Fear-Driven • most relevant content • Cooperative
E FFECTIVE D ISCOVERY • Phased • Start in the center • Focused • Work your way out as needed • Iterative • Inherently proportional • Less Fear-Driven • Cooperative
E FFECTIVE D ISCOVERY • Phased • Preservation • Focused • Scope • Iterative • Privilege Review • F.R.E. 502 • Less Fear-Driven • Cooperative
E FFECTIVE D ISCOVERY • Phased • Change “shoot first, ask later” attitude • Focused • “Ask first” Rules • Iterative • 26(d) • 26(f) • 34(b) • Less Fear-Driven • More important than • Cooperative ever
A CTIVE C ASE M ANAGEMENT • “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
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