ADVERTISEMENTS

    Those in the know about the Civil Procedure pleading world are well versed in the controversial reception that has greeted the Supreme Court's Twombly (2007) and Iqbal (2009) decisions, which imposed a new "plausibility" standard for the adequacy of stating a valid claim in a federal complaint under Fed. R. Civ. P. 8(a)(2).  So, for example, in Iqbal the Court ruled that plaintiff's allegations of invidious discrimination in the post-9/11 roundup of Arab Muslim men (usually for immigration violations) were not "plausible."  (That would probably be news to the plaintiffs and their counsel in Korematsu v. United States, the infamous WWII Japanese internment case.)  The controversy is in the news again after the Senate held hearings yesterday on those two decisions and the status of federal pleading law.  A brief summary of the hearings can be found here.  University of Pennsylvania Law Professor Stephen Burbank testified.

    In Twombly and Iqbal, the Court denied that "plausibility" was a heightened standard, and distinguished it from the higher "particularity" pleading standard that applies to fraud claims under Fed. R. Civ. P. 9(b).    Most commentators reject these assertions.  Commentators also question how the new "plausibility" standard can be reconciled with Fed. R. Civ. P. Form 11, which provides an example of a very brief, supposedly adequate negligence pleading, which Fed. R. Civ. P. 84 declares is sufficient to satisfy Rule 8(a)(2).

    Two things seem clear from Twombly and Iqbal.  First, "notice pleading" under Rule 8(a)(2) no longer demands merely that the defendant understand what it is being sued for so that it can make a meaningful choice about how to defend.  Both the Twombly and Iqbal defendants knew what they were being sued for, and could adequately present a defense.  But under "plausibility," that is no longer enough.

    Second, Twombly and Iqbal were animated by a lost faith in litigation's discovery process, at least in so far as discovery has changed due to the rise of technology.  The federal court system has been struggling with how to respond to e-discovery changes, and at the end of 2006 even amended the Federal Rules of Civil Procedure to address e-discovery.  Apparently, the Supreme Court has no faith that those amendments will meaningfully avoid the Court's concern that discovery in general, and e-discovery in particular, can be unduly burdensome, as both Twombly and Iqbal were decided subsequent to the e-discovery amendments.

    The majorities in both Twombly and Iqbal denied that existing discovery rules could sufficiently cabin discovery.  Thus, suggestions for how to control discovery may offer meaningful responses to Twombly/Iqbal, which makes interesting a report jointly issued by the American College of Trial Lawyers and the Advancement of the American Legal System at the University of Denver, 21st Century Civil Justice System: A Roadmap for Reform.

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