We want to be clear that the burden of discovery is borne by a wide array of defendants, not just antitrust defendants.  We focused our previous discussion on the burdens of antitrust cases because that is what Twombly was addressing and Professor Mulligan said his arguments bore on both Twombly and Iqbal.  One case we just had was neither an antitrust case, nor a mass tort case, but the discovery extended over almost a decade and the burdens of discovery were extraordinary, only to have the jury acknowledge at the end that there was no merit to plaintiffs’ claims.  It is likely true that the discovery in a smaller cases is smaller, but defendants in smaller cases oftentimes have less means to pay for that discovery than the defendants in big litigation.  For an individual defendant, the cost of a half-dozen depositions can be ruinous, especially in the current economic climate.  It is not right to put a defendant, whether big or small, to the burden of discovery when plaintiff cannot plead actual facts which, if taken as true, show that he or she is entitled to relief.

 Additionally, discovery costs are not the only costs incurred in litigation.  Once a complaint proceeds beyond the pleading stage, the next exit for defendant is summary judgment.  That alone can be a very expensive production, requiring the amassing of declaration and evidence, as well as a carefully crafted brief.  Pre-trial preparations are even more costly for a defendant who foregoes summary judgment.  All of these matters and the uncertainties and costs they pose weigh on a defendant to settle a claim, meritorious or not, if it is not disposed of at the outset.  Oftentimes too, litigation can require pulling key decision makers and workers away from doing their daily duties to prepare for an participate in deposition and other court-related obligation.  Or in smaller claims, it can mean that the defendant has to miss work.  This too can take a toll on defendants.  All of these burdens and costs suggest that courts should be wary of liberalizing the pleading standard too readily.

 Although Professor Mulligan suggests that the discovery issue is raised in only a small number of cases, we believe the number of cases where a plaintiff with legitimate claims does not have access to sufficient facts to plead those claims is likely even smaller, if they exist at all.  Rather than letting all claims proceed through full-fledged discovery, it would be better to create an exception to Iqbal that allows a court to order limited discovery and the right to amend, under narrow circumstances.  If a plaintiff could show good cause why the key facts going to a particular element of a claim were under the sole control of defendant and inaccessible to plaintiff, then a limited right of discovery before amendment could be recognized.  Otherwise, the current Iqbal standard should control.  The benefit of such an approach is that discovery could be tailored to fleshing out whether plaintiff has a claim, rather than continuing the Conley practice of opening the floodgates to discovery on all subjects on the flimsiest of allegations.  

Drafting a narrow exception to Iqbal and Rule 8’s requirement that the plaintiff come forward with facts showing that the plaintiff is entitled to relief might well be an appropriate topic for amendment of the Federal Rules of Civil Procedure.  But no such amendment is necessary for the Supreme Court to interpret what the existing Rule 8 means.