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American Constitution Society for Law and Policy Brief Plausibility Discovery and Twombly and Iqbal 2010

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Salvaging Civil Rights Claims:
How Plausibility Discovery Can Help
Restore Federal Court Access
After Twombly and Iqbal
By Suzette M. Malveaux
November 2010

American Constitution Society 11333 H Street. NW, 11th Floor

IWashington, DC 20005

Salvaging Civil Rights Claims: How Plausibility Discovery Can
Help Restore Federal Court Access After Twombly and Iqbal
Suzette M. Malveaux *
For over half a century, federal courts have opened their doors to all plaintiffs who could
craft a complaint that provided basic notice to the defendant of their claims. This threshold,
called “notice pleading,” was established by the Supreme Court in Conley v. Gibson 1—a civil
rights case brought by African-American railway workers challenging their union for failing to
fairly represent their interests without regard to race. This seminal case established the rule that
a complaint should only be dismissed if the plaintiff could prove “no set of facts in support of his
claim that would entitle him to relief.” 2 This made it easy for a plaintiff to initiate a lawsuit
because the system was designed to test the merits of the plaintiff’s case later on, once both sides
had the chance to collect evidence through the discovery process and to use other pre-trial
procedures. It was important not to let procedural gamesmanship bar ordinary people from
seeking justice and relief through the courts.
Anchored in these principles, the Supreme Court consistently rejected efforts by the
lower courts to raise the pleading standard, particularly in civil rights cases. 3 The Court
remained steadfast in enforcing Conley’s “no set of facts” standard, only requiring plaintiffs to
set forth a “short and plain statement of the claim” that would give the defendant notice, as stated
in Rule 8 of the Federal Rules of Civil Procedure. 4 It was important to give civil rights
complainants, like everyone else, their day in court and let their cases be decided on the merits.
After over half a century, however, this generous pleading standard upon which courts
had historically relied has come to an abrupt halt. In Bell Atlantic Corp. v. Twombly 5 (an
antitrust class action by consumers against Internet and telephone service providers), the
Supreme Court “retired” Conley’s permissive “no set of facts” language. 6 Instead of requiring
plaintiffs to put forth facts showing their claims were possible, they now had to put forth facts
showing their claims were plausible. 7 In Ashcroft v. Iqbal 8 (a constitutional civil rights case by
Javaid Iqbal against top government officials), the Court clarified that the new standard applies

*

Suzette M. Malveaux is an Associate Professor of Law at Catholic University’s Columbus School of Law. Much
gratitude goes to the following people for their insights and invaluable feedback: Judge Thomas J. Motley, Judge
Ivan L.R. Lemelle, Cyrus Mehri, Esq., Professor Patrick Wooley, Professor Stephen Burbank, and my colleagues at
the Columbus School of Law. A special thanks goes to Alfred Dumetz Carry and Christina Downs for their
excellent editorial and research assistance.
1
Conley v. Gibson, 355 U.S. 41 (1957).
2
Id. at 45-46.
3
See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Leatherman v. Tarrant Cnty. Narcotics Intelligence
& Coordination Unit, 507 U.S. 163 (1993).
4
FED. R. CIV. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to
relief.”).
5
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
6
Id. at 1969.
7
Id. at 1966-69.
8
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

1

to all civil actions, including discrimination claims. 9 And the way a judge would determine if
something is plausible would be to use his “judicial experience and common sense.” 10
Today, all plaintiffs must clear this higher hurdle to get into federal court. The Federal
Rules of Civil Procedure, which govern civil actions in federal court, apply to all cases in the
same manner, regardless of the substantive right being pursued. In other words, the rules are
supposed to be trans-substantive. But surviving this new bar has proved particularly formidable
for civil rights plaintiffs. More than others, civil rights claimants are facing a tougher time
getting access to the federal courts. Twombly and Iqbal threaten the viability of their potentially
meritorious claims.
In this Issue Brief, I describe why civil rights claimants have a more difficult time
surviving dismissal under the new pleading standard, and why this is a significant problem. I
then explore what can be done about a particularly troubling issue—unequal access to
information at the pleading stage. In the absence of a legislative act or Rules amendment—
which could be months, if not years away—I suggest that judges permit plaintiffs to discover
facts at the beginning of a case to show that their claims are plausible. I analyze the pros and
cons of plausibility discovery and provide a roadmap that judges can use to permit such
discovery. Finally, I conclude that plausibility discovery is an important tool to consider in the
fight for court access and greater civil rights enforcement. 11
I.

Why Civil Rights Claims Are More Vulnerable to Dismissal Now

One of the problems with the higher pleadings bar is the harsher impact it may have on
plaintiffs challenging discrimination. Intentional discrimination claims are more vulnerable to
dismissal following Twombly and Iqbal for a number of reasons.
First, a plaintiff alleging intentional discrimination in her complaint often tells a story
whose facts are consistent with both legal and illegal behavior; it could go either way. This is
not surprising because, at the very beginning of a lawsuit, plaintiffs can only put forward
information that they were able to gather through their own diligent investigation. No one has
had a chance to engage in the formal discovery process, where the parties are compelled to turn
over important information to the other side. But under the new pleading standard, plaintiffs
must allege facts “plausibly suggesting (not merely consistent with)” illegal conduct. 12
This makes it tricky for civil rights claims to survive dismissal. If a plaintiff alleges
intentional discrimination, she ultimately has to prove that the defendant’s adverse action was
because of some impermissible factor; the plaintiff has to prove what motivated the defendant.
But a defendant’s conduct can suggest a discriminatory motive or a purely innocent one—
9

Id. at 1953 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions,’ . . . and it applies to
antitrust and discrimination suits alike.”).
10
Id. at 1950.
11
This Issue Brief is based on a prior article. See Suzette M. Malveaux, Front Loading and Heavy Lifting: How
Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 LEWIS & CLARK L.
REV. 65 (2010).
12
Twombly, 127 S. Ct. at 1966.

2

indistinguishable from each other at the early pleading stage. For example, an applicant may not
have been hired because of her gender (i.e., an illegitimate reason) or her poor qualifications
(i.e., a legitimate reason). Until there has been some discovery, the facts available to the plaintiff
may be consistent with both theories.
This was true in Iqbal. There, Javaid Iqbal was detained and held on various charges
immediately following the 9/11 terrorist attack because of his designation as a person of “high
interest.” Iqbal, a Pakistani who ultimately pled guilty to criminal charges and served his time,
alleged that he had been mistreated by federal officials while in a special, maximum security
unit, in violation of his constitutional rights. In particular, he contended that former Attorney
General John Ashcroft and FBI Director Robert Mueller designated him a person of “high
interest” and subjected him to harsh conditions of confinement on account of his race, religion,
or national origin in violation of the First and Fifth Amendments. His complaint alleged that
these constitutional violations were a matter of policy for which Ashcroft and Mueller were
personally responsible. Iqbal’s factual allegations were consistent with both illegal and legal
conduct. The facts could explain invidious discrimination, on the one hand, or legitimate antiterrorism activity, on the other. At the pleading stage, without the benefit of discovery, it was
too early to tell.
Second, the new plausibility test—defined by “judicial experience and common sense”—
is so subjective that it fails to give judges enough guidance on how to determine if a complaint
should be dismissed. Based on differences among judges, one judge may dismiss a complaint
while another concludes it should survive, solely because of the way each judge applies his or
her “judicial experience and common sense.” This is bound to create unpredictability, lack of
uniformity, and confusion.
For example, studies indicate that there are significant differences in perception among
racial groups over the existence and pervasiveness of race discrimination. 13 With the election of
Barack Obama, the first African-American President, there has been a particularly acute focus on
whether American society has become “post-racial.” Following this historic election, many
Americans have concluded that race discrimination is no longer a significant issue. 14
13

See Gary Langer & Peyton M. Craighill, Fewer Call Racism a Major Problem Though Discrimination Remains,
ABC NEWS (Jan. 18, 2009), http://abcnews.go.com/PollingUnit/Politics/story?id=6674407&page=1 (“[AfricanAmericans] remain twice as likely as whites to call racism a big problem (44 percent vs. 22 percent), and only half
as likely to say African-Americans have achieved equality.”); K.A. DIXON ET AL., A WORKPLACE DIVIDED: HOW
AMERICANS VIEW DISCRIMINATION AND RACE ON THE JOB 8 (2002), available at
http://www.heldrich.rutgers.edu/sites/default/files/content/A_Workplace_Divided.pdf (finding that AfricanAmerican employees are five times more likely than their white counterparts to believe that African-Americans are
the most likely victims of discrimination; 50% of African-American employees believe employment practices are
fair, in comparison to 90% of their white counterparts); Kevin Sack & Janet Elder, Appendix, The New York Times
Poll on Race: Optimistic Outlook But Enduring Racial Division, in CORRESPONDENTS OF THE NEW YORK TIMES,
HOW RACE IS LIVED IN AMERICA: PULLING TOGETHER, PULLING APART 385 (2001) (44% of African-Americans
believe they are treated less fairly than whites in the workplace, while 73% of whites believe African-Americans are
treated fairly).
14
See Ian F. Haney López, Post-Racial Racism: Policing Race in the Age of Obama (forthcoming 2010)
(manuscript at 142, 147), available at http://ssrn.com/abstract=1418212 (“Partly through colorblindness and partly
through the accumulated weight of cultural beliefs and historical practices, most Americans accept that major
American institutions are race-neutral and that these institutions produce vast racial disparities.”); see, e.g., PBS

3

Consequently, some judges, like many Americans, may operate from the presumption that race
discrimination is a thing of the past. This perception may lead to a judge’s concluding that,
based on the facts before him, intentional discrimination is implausible, especially in light of
other alternative explanations available. Without a suitable legal standard in which to anchor the
plausibility determination, judges are vulnerable to the criticism that their decisions are based on
factors outside of the law. This excessive subjectivity can result in different outcomes depending
not on the facts, but on who the judge is.
In Iqbal itself, the Supreme Court concluded that the factual allegations, taken as true,
were consistent with intentional illegal discrimination. 15 The arrest and detention of thousands
of Arab Muslim men as part of the FBI’s post-9/11 terrorism investigation could mean that
Ashcroft and Mueller intentionally designated such detainees as persons of “high interest” on the
grounds of race, religion, or national origin. But a more benign reason could explain the same
conduct. Perhaps Ashcroft and Mueller instituted a legitimate anti-terrorism policy that
happened to have a disparate impact on Arab Muslim men because of the connection between
the 9/11 attack and its perpetrators. 16 In comparing the plaintiff’s intentional discrimination
theory to the defendants’ more innocent one, the Court rejected the plaintiff’s as implausible on
the grounds that it was less likely. 17 But a court is not supposed to weigh the relative merits of
alternative theories at the pleading stage before both parties have had an opportunity to collect
evidence to prove their case. These kinds of judgment calls are to be made by a jury after
everyone has had a chance to gather evidence and make their case.
Finally, discriminatory intent is often difficult, if not impossible, to unearth before the
parties have had some discovery. One reason for this is that discrimination has become more
subtle and institutional. It can be harder to detect because it is less overt and transparent; instead
it takes the form of stereotypes and unconscious bias.
Another reason it is hard for plaintiffs to unearth discrimination is the unequal access the
parties have to evidence. In the absence of discovery, it is particularly difficult for civil rights
claims to survive dismissal when plaintiffs cannot get access to information that is exclusively in
Newshour: Debate on Race Emerges as Obama’s Policies Take Shape (PBS television broadcast Sept. 16, 2009),
available at http://www.pbs.org/newshour/bb/politics/july-dec09/rage_09-16.html. For example, in a discussion
among columnists and academics with Gwen Ifill, Democratic pollster Cornell Belcher concluded:
We’re two very different countries racially, where right now you have a majority of whites who,
frankly, do think we’re post-racial because they think African-Americans have the same
advantages as they do, while African-Americans do not. And you have a large swath of whites
right now who are just as likely to see reverse discrimination as an issue as classic discrimination.
Id. But see Associated Press, Ex-President Sees Racism in Outburst, N.Y. TIMES, Sept. 16, 2009, at A14 (attributing
Joe Wilson’s outburst during President Obama’s health care speech as “based on racism” and noting that “[t]here is
an inherent feeling among many in this country that an African-American should not be president”); Jeffrey M.
Jones, Majority of Americans Say Racism Against Blacks Widespread, GALLUP, Aug. 4, 2008,
http://www.gallup.com/poll/109258/Majority-Americans-Say-Racism-Against-Blacks-Widespread.aspx.
15
Iqbal, 129 S. Ct. at 1951 (“Taken as true, these allegations are consistent with petitioners’ purposefully
designating detainees ‘of high interest’ because of their race, religion, or national origin.”).
16
Id.
17
Id.

4

the defendant’s possession, such as defendant’s intent or institutional practices. This unequal
access to information—informational inequality—between the parties is unfair. A good
illustration of this was found in Ledbetter v. Goodyear Tire & Rubber Co. 18 There, the plaintiff,
Lilly Ledbetter, brought suit against her employer, Goodyear, well after the statute of limitations
had expired because she was not aware of her employer’s initial discriminatory decision to pay
her less than her male colleagues. 19 Not surprisingly, like so many employees, 20 she was not
privy to the fact that she was being systematically underpaid 21—an inequity that did not escape
Congress. 22 In numerous ways, ordinary people are at a significant disadvantage when
challenging the misconduct of employers, corporations, and other institutions because of this
informational inequality.
Plaintiffs are caught in a Catch-22. They must put facts in their complaint to nudge their
claim from possible to plausible. Often the only way to get such facts is through discovery. But
the court will not permit discovery unless the plaintiffs provide the very facts they cannot
discover. Thus, plaintiffs’ complaint dies on the vine, not because it lacks merit, but because
plaintiffs do not have the same access to information that the defendant does. By raising the
pleading bar to plausibility, the Supreme Court has created an untenable situation for plaintiffs
challenging discrimination where there is informational inequality.
II.

Why the Increased Risk of Dismissals is a Problem

The fact that civil rights cases now run the risk of being dismissed more often in federal
courts is a major problem. This risk undermines civil rights enforcement and compromises
deterrence. Pursuant to the legislative scheme of various civil rights statutes, everyday people
are empowered to act as private attorneys general to enforce the law. The federal courts, in
particular, have historically been a forum civil rights plaintiffs have relied on for justice. 23
Where the legislative and executive branches have been unwilling or unable to enforce civil
rights, the judicial branch has stepped in to play a vital role. Preliminary studies of civil rights

18

Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2177 (2007) (holding plaintiff’s claim was barred
because of the statute of limitations).
19
Id. at 2165–66.
20
Pay information is often confidential, and disparities in pay may not evince discrimination until years of salary
data can be accumulated. Id. at 2178–79 (Ginsburg, J., dissenting); see Leonard Bierman & Rafael Gely, “Love, Sex
and Politics? Sure. Salary? No Way”: Workplace Social Norms and the Law, 25 BERKELEY J. EMP. & LAB. L. 167,
168 (2004) (discussing how social norms and corporate policy may discourage discussion of salaries in the
workplace and citing, for example, that one-third of U.S. private sector employers have policies prohibiting
employees from discussing salaries).
21
Ledbetter, 127 S. Ct. at 2182.
22
The effect of this holding was ultimately reversed by the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2,
123 Stat. 5 (2009) (codified as amended in scattered sections of 29 and 42 U.S.C.).
23
See Suzette M. Malveaux, Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigation, 74
GEO. WASH. L. REV. 68, 84 (2005) (“[T]he federal judicial system has often protected minorities and other
disenfranchised groups from the tyranny of local government and private actors.”); see also England v. La. State Bd.
of Med. Exam’rs, 375 U.S. 411, 427 (1964) (Douglas, J., concurring) (“[F]ederal judges appointed for life are more
likely to enforce the constitutional rights of unpopular minorities than elected state judges.”).

5

cases post-Twombly and Iqbal suggest that the more rigorous pleading standard is resulting in a
greater dismissal rate for such cases. 24 Examples are appearing across the country. 25
The tougher pleading standard also undermines one of the most fundamental rights upon
which the American legal system is based—the right to be heard. The Supreme Court has long
recognized the importance of this value, as expressed in the Constitution: “The due process
clause requires that every man shall have the protection of his day in court, and the benefit of the
general law, a law which hears before it condemns . . . .” 26 Depriving someone of access to the
court system undermines fundamental notions of fairness and due process that are the
cornerstones of our legal system. Moreover, denying plaintiffs access to the courts undermines
the well-established preference that cases be decided on the merits rather than on procedural
grounds. Whenever possible, the merits should not be subordinated to procedural
“technicalities.”
Finally, the plausibility pleading standard’s detrimental impact on civil rights claims and
claimants may lead individuals to call into question the legitimacy of the legal system. Where
some victims of injustice are selectively excluded and denied the laws’ benefits, they may view
the legal system as illegitimate and unworthy of respect.
III.

What Can Be Done to Address the Problem?

In response to these problems, numerous scholars, practitioners, and advocacy groups
have generated a variety of innovative and promising potential solutions. They include
legislation that would turn the clock back to the notice pleading standard, 27 amendments to the
24

See Kendall W. Hannon, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly
on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1838 (2008) (“[A] Twombly civil rights action was 39.6%
more likely to be dismissed than a random case in the set. This result was statistically significant to the 0.05
level.”); Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L.
REV. 553, 556 (2010); Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for
Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011, 1030, 1041–42 (2% increase in dismissal rate of
employment discrimination cases post-Twombly).
25
See, e.g., Diaz-Martinez v. Miami-Dade Cnty., No. 07-20914-CIV, 2009 WL 2970468, at *9 (S.D. Fla. Sept. 10,
2009) (relying on Twombly, court dismissed § 1983 claim for conspiracy to deprive plaintiff his civil rights on
grounds that allegations of parallel constitutional violations alone did not suggest an agreement between police
defendants, and discovery was not appropriate); Dorsey v. Ga. Dep’t of State Rd. & Tollway Auth. SRTA, No. 1:09CV-1182-TWT, 2009 WL 2477565, at *5–7 (N.D. Ga. Aug. 10, 2009) (dismissing § 1983 hostile work environment
claim and others on grounds that plausibility standard under Twombly not met under Rule 12(c) motion on the
pleadings); Ibrahim v. Dep’t of Homeland Sec., No. C 06-00545 WHA, 2009 WL 2246194, at *8–10 (N.D. Cal. July
27, 2009) (dismissing claims of discrimination on basis of national origin, religious beliefs, and other constitutional
violations because plaintiff did not show discriminatory purpose under Iqbal); Kyle v. Holinka, No. 09-cv-90-slc,
2009 WL 1867671, at *1–3 (W.D. Wis. June 29, 2009) (dismissing equal protection claims brought by prisoners
against prison officials for alleged racial segregation).
26
Truax v. Corrigan, 257 U.S. 312, 332 (1921); Grannis v. Ordean, 234 U.S. 385, 394 (1914) (“The fundamental
requisite of due process of law is the opportunity to be heard.”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW 666 (2d ed. 1988) (“[T]here is intrinsic value in the due process right to be heard” because “[w]hatever its
outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the
satisfaction of participating in the decision that vitally concerns her . . . .”).
27
See, e.g., Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009); Notice Pleading Restoration Act of
2009, S. 1504, 111th Cong. (2009).

6

Federal Rules, 28 and various other approaches. Many are collecting data and studying the issue,
including the Federal Judicial Center, the Civil Rules Advisory Committee, and various
academics. 29 These efforts to construct a permanent, institutional fix to the pleadings problem
are laudable and important work.
However, in the absence of a change in the Federal Rules or Congressional action—
which may be months, if not years, away—it is imperative that civil rights litigators figure out
how they can use the tools currently available to them to fight for access to the courts and
continued enforcement of the civil rights statutes. The question becomes: What can be done in
the meantime?
One such alternative is “plausibility discovery.” Plausibility discovery is limited,
targeted discovery made available to the parties at the pleading stage in response to a defendant’s
Rule 12(b)(6) motion to dismiss on the grounds that a plaintiff’s claims are implausible.
Plaintiffs should consider requesting plausibility discovery and courts should consider granting it
where there is informational asymmetry between the parties. Adapting discovery in this way
would level the playing field for civil rights claimants and ensure that the trans-substantive
application of the Rules does not work an injustice against civil rights claims.
IV.

Making the Case for Plausibility Discovery
A.

Plausibility Discovery is Authorized

Federal judges have considerable discretion when managing the cases that come before
them. This authority appropriately ensures that cases move smoothly and fairly through the
system. As stated in the very first rule of the Federal Rules of Civil Procedure, judges are
required to balance the twin goals of efficiency and justice when managing cases. 30 They have a
duty to construe and administer the procedural rules in a “just, speedy, and inexpensive”
manner. 31
Among the many management tools at a judge’s disposal is discovery. Discovery is most
often used once the case has gotten underway so the parties can gather information about the
merits of the case. The parties are forced to answer tough questions under oath (in writing or
perhaps in front of a court reporter) and to exchange documents and other valuable evidence.

28

Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60
DUKE L.J. 1, 95-105 (2010) (comparing rulemaking and legislative options).
29
See, e.g., Alexander A. Reinert, The Costs of Heightened Pleading, 86 IND. L.J. (forthcoming 2010), available at
http://ssrn.com/abstract=1666770 (providing empirical data challenging assumptions regarding benefits and costs of
heightened pleading).
30
Id.
31
Rule 1 of the Federal Rules of Civil Procedure states: “These rules govern the procedure in all civil actions . . . in
the United States district courts . . . . They should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1.

7

Discovery plays a critical role, often leading the parties to settle the case or to challenge its
viability in a summary judgment motion. 32
While discovery normally takes place in the middle of a lawsuit, it is not uncommon for
discovery to occur earlier. Judges regularly order discovery to deal with a variety of threshold
matters—a practice the Supreme Court has endorsed.
For example, when a plaintiff wants to challenge systemic discrimination, he might
choose to bring the case as a class action so he can act on behalf of himself and others like him.
In order to proceed as a class action, the plaintiff has to persuade the judge that the criteria of
Rule 23 of the Federal Rules of Civil Procedure are satisfied. It is common practice for judges to
permit the parties to take limited, narrow discovery on the question of whether a case should be
certified as a class action. This is especially important for plaintiffs, who often do not have a
corporation’s policies or records that would demonstrate a company-wide pattern or practice that
makes class certification appropriate.
Another example of when judges permit early, targeted discovery is in the context of
qualified immunity. When a plaintiff sues a government official for violating her constitutional
or federal rights, the defendant may assert qualified immunity as a defense. This safe haven is
available if the officer’s conduct did not violate clearly established law of which a reasonable
person would have known. 33 Qualified immunity balances two competing interests—holding
government officials accountable for abuse of power, while also protecting them from
“harassment, distraction, and liability” unreasonably incurred in the line of duty. 34 Because
qualified immunity is meant to protect an official not only from liability, but the lawsuit itself,
defendants will raise the defense as soon as possible in a Rule 12(b)(6) motion. 35 In an effort to
protect a government official before litigation really gets underway, judges permit early, targeted
discovery to determine if the official is entitled to the defense. A judge may hold off ruling on
the 12(b)(6) dismissal motion or may deny it altogether, so that some discovery can be taken on
this crucial question. Narrow and early discovery on the immunity issue enables courts to strike
the right balance between protecting government officials from meritless litigation and giving
plaintiffs with meritorious claims access to the court.
Another circumstance where judges will permit the parties to take some focused
discovery at the beginning of a lawsuit is to determine jurisdiction. When a defendant challenges
the underlying facts of a complaint on the grounds that the court lacks either subject matter
jurisdiction or personal jurisdiction, a judge may order discovery on this gateway issue. At the

32

See FED. R. CIV. P. 56(c)(2) (“The judgment should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”).
33
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
34
Id; see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Litigation, though necessary to ensure that officials
comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that
might otherwise be directed to the proper execution of the work of the Government.”).
35
See FED. R. CIV. P. 12(b)(6) (“failure to state a claim upon which relief can be granted”).

8

very outset, the judge can determine if the case should be dismissed or can go forward based on
this limited exploration. 36
As demonstrated, judges are already front-loading discovery and using it to resolve a
variety of preliminary litigation matters. 37 Judges should consider doing the same to resolve the
plausibility question.
B.

Plausibility Discovery is Justified on Policy Grounds

Not only is plausibility discovery authorized, it is justified on policy grounds. Prior to
the plausibility pleading standard, there was very little need for a judge to give a plaintiff an
opportunity to discover facts showing he was entitled to relief. The generous notice-pleading
standard under Conley enabled plaintiffs to plead cases more easily and to more likely survive
dismissal, as many courts readily admit. 38 The informational inequality between the parties,
while always there, did not have the same deleterious effect on a plaintiff’s capacity to overcome
a Rule 12(b)(6) challenge. Whether the complaint’s factual allegations were true could be
fleshed out in discovery and tested later through summary judgment or at trial. But post-Iqbal,
this is not the case. The same plaintiff may find his complaint vulnerable to premature dismissal
because of the more rigorous pleading standard. Consequently, a different approach is needed.
In arguing that the parties should be allowed plausibility discovery at the pleading stage,
plaintiffs’ biggest obstacle is that the complaint admittedly has not met the pleading standard.

36

However, where a defendant challenges a complaint on its face as lacking jurisdiction, the courts have not
engaged in the same discovery.
37
Moreover, nothing explicitly prohibits plausibility discovery in the rules.
38
See Ocasio-Hernandez v. Fortuno-Burset, 639 F. Supp. 2d 217, 226 n.4 (D.P.R. 2009):
As evidenced by this opinion, even highly experienced counsel will henceforth find it extremely
difficult, if not impossible, to plead a section 1983 political discrimination suit without “smoking
gun” evidence. In the past, a plaintiff could file a complaint such as that in this case, and through
discovery obtain the direct and/or circumstantial evidence needed to sustain the First Amendment
allegations.
Id.; Young v. City of Visalia, No. 1:09-CV-115 AWI GSA, 2009 WL 2567847, at *6–7 (E.D. Cal. Aug. 18, 2009)
(concluding “In light of Iqbal, it would seem that the prior Ninth Circuit pleading standard for Monell claims (i.e.,
‘bare allegations’) is no longer viable” and dismissing complaint that lacked facts sufficient to plausibly state a valid
Monell claim (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978))); Coleman v. Tulsa Cnty. Bd. of Cnty.
Comm’rs, No. 08-CV-0081-CVE-FHM, 2009 WL 2513520, at *3 (N.D. Okla. Aug. 11, 2009) (dismissing Title VII
hostile work environment and retaliation claims, and noting that “[p]laintiff’s second amended complaint may have
survived under Conley v. Gibson” for a claim that was conceivable but not plausible); Ansley v. Fla. Dep’t of
Revenue, No. 4:09CV161-RH/WCS, 2009 WL 1973548, at *2 (N.D. Fla. July 8, 2009) (dismissing Title VII
employment discrimination case, and concluding: “These allegations might have survived a motion to dismiss prior
to Twombly and Iqbal. But now they do not.”); Argeropoulos v. Exide Techs., No. 08-CV-3760 (JS), 2009 WL
2132443, at *6 (E.D.N.Y. July 8, 2009) (dismissing Title VII hostile work environment claim that might have
survived Conley’s “no set of facts” standard, but fails under Iqbal because without more information about national
origin, animus claim is conceivable but not plausible); Kyle v. Holinka, No. 09-cv-90-slc, 2009 WL 1867671, at *1
(W.D. Wis. June 29, 2009) (“[Iqbal and Twombly] implicitly overturned decades of circuit precedent in which the
court of appeals had allowed discrimination claims to be pleaded in a conclusory fashion. . . . Under the Supreme
Court’s new standard, an allegation of discrimination needs to be more specific.”).

9

Indeed, in Iqbal itself, the Supreme Court concluded that “[b]ecause [Iqbal’s] complaint is
deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.” 39 How can such
discovery be justified?
For starters, the Supreme Court did not address—much less reject—permitting discovery
solely to discern if a complaint makes a plausible claim where informational inequality exists.
Given the Catch-22 civil rights complainants find themselves in, how could their complaint meet
the pleading standard? Plausibility discovery directly addresses this unfairness.
Moreover, in Iqbal, the Court’s unwillingness to permit even cabined discovery was in
the context of plaintiff’s asking the Court to relax the pleading standard on the ground that
subsequent merits discovery would be limited. 40 In contrast, plaintiffs requesting plausibility
discovery would not be asking for a lower pleading standard, but simply a means to meet the
current one.
Finally, the Iqbal Court expressed significant skepticism, within a particularly unique and
tragic context, over whether judges could use careful case management to reign in discovery
against high level government officials. It was in the direct aftermath of the 9/11 terrorist attack
that the Court grappled with whether and how to protect the nation’s top law enforcement leaders
from potentially distracting and intrusive discovery. The question of qualified immunity was
particularly acute. 41 The Court’s skepticism, however, is belied by its general approval of the
lower courts’ broad power and discretion to manage discovery to address various preliminary
litigation matters.
In fact, plausibility discovery arguably furthers, rather than contravenes, the Supreme
Court’s goal of prohibiting defendants from being forced to engage in burdensome discovery and
expending significant time, resources, and attention on meritless litigation. By permitting the
parties plausibility discovery, district courts can more easily resolve those cases that are close
calls—resulting in early dismissals that protect defendants from burdensome merits discovery
where appropriate. This approach not only benefits plaintiffs, but defendants as well.
For example, in Kregler v. City of New York, 42 the district court permitted plausibility
discovery where a former firefighter’s First Amendment § 1983 retaliation claim was a close
call. 43 Rather than deny the defendant’s motion to dismiss outright and subject the defendant to
potentially expensive and time consuming merits discovery, 44 the court instead permitted the
parties to engage in targeted discovery on the plausibility issue. 45 Although the court ultimately
granted defendant’s 12(b)(6) motion on the pleadings alone, its consideration of additional
39

Iqbal, 129 S. Ct. at 1954.
Id. at 1953-54.
41
See Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 509-12 (2010).
42
Kregler v. City of New York (Kregler I), 608 F. Supp. 2d 465 (S.D.N.Y. 2009).
43
Id. at 476 (complaint would “barely survive dismissal at this point”).
44
See id. at 476–77 (describing how denying defendants’ dismissal motion would likely lead to extensive merits
discovery that would “culminate—many months, or even years from now, and at a financial cost of tens if not
hundreds of thousands of dollars in a motion for summary judgment that in all probability would turn on resolution
[of] the same threshold issues . . . .”).
45
Id. at 475; see also Kregler v. City of New York (Kregler II), 646 F. Supp. 2d 570, 581 (S.D.N.Y. 2009).
40

10

evidence—through documents and testimony by the plaintiff—persuaded the court that plaintiff’s
retaliation claim was implausible. 46 But for this targeted plausibility discovery, the defendant
might have had to engage in full blown merits discovery prior to challenging plaintiff’s
retaliation claim again through summary judgment—a more time consuming and costly
alternative. 47
Another objection to plausibility discovery is the valid concern that plaintiffs should not
be permitted to go on a “fishing expedition,” especially at a defendant’s expense. Plaintiffs are
expected to conduct an adequate investigation before filing a lawsuit, as required by Rule
11(b)(3) of the Federal Rules of Civil Procedure. 48 This objection would be fair if plaintiffs
failed to act diligently as required by the rule. But here, plaintiffs’ shortfall does not arise from
any wrongdoing on their part. They are requesting plausibility discovery at the pleading stage
because the defendant is the one with all the information. The rationale for forbidding such
discovery falls away. Rule 11(b)(3) only requires that plaintiffs conduct an “inquiry reasonable
under the circumstances,” which may mean that sometimes plaintiffs cannot draft a complaint
with facts demonstrating plausibility. 49
A similar rationale justifies the more liberal construction given to complaints filed by
prisoners who proceed in forma pauperis. 50 Because they have virtually no opportunity to
conduct a pre-complaint investigation, the courts give them a break. For example, in Rodriguez
v. Plymouth Ambulance Service, a prisoner who filed a § 1983 claim pro se 51 was given the
“opportunity to engage in limited discovery to ascertain the identity” of certain individual
medical staff members who were allegedly deliberately indifferent to his serious medical
condition in violation of the Eighth Amendment. 52 Recognizing the prisoner’s “opportunities for
conducting a precomplaint inquiry” as “virtually nil,” 53 the court refrained from dismissing the
46
47
48

See Kregler II, 646 F. Supp. 2d at 574–75, 578–81.
See id. at 581.
Rule 11(b) states:
By presenting to the court a pleading . . . an attorney or unrepresented party certifies that to the
best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances: . . . (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery . . . .

FED. R. CIV. P. 11(b)(3).
Post-Iqbal, it behooves a plaintiff facing this type of evidentiary inequality to specifically identify those factual
contentions that “will likely have evidentiary support after a reasonable opportunity for further investigation or
discovery,” FED. R. CIV. P. 11(b)(3), in the event they are lacking at filing. This explicit acknowledgment places the
court on notice that plausibility discovery is warranted, and potentially shields plaintiffs from a Rule 11(b)(3)
challenge. See, e.g., Kregler I, 608 F. Supp. 2d at 475 (deciding to hold a pre-dismissal preliminary hearing to flesh
out the complaint’s plausibility and to discern if plaintiff properly conducted a pre-suit investigation required by
Rule 11(b)(3)).
50
Latin for “in the manner of a pauper,” meaning “[i]n the manner of an indigent who is permitted to disregard
filing fees and court costs.” BLACK’S LAW DICTIONARY 783 (7th ed. 1999).
51
Latin for “on one’s own behalf; without a lawyer,” meaning “[o]ne who represents oneself in a court proceeding
without the assistance of a lawyer.” BLACK’S LAW DICTIONARY 1236-37 (7th ed. 1999).
52
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 819, 821–22, 832 (7th Cir. 2009).
53
Id. at 821.
49

11

complaint and instead ordered discovery before ruling on the dismissal motion. 54 The Seventh
Circuit explained that the “principle is not limited to prisoner cases” but instead “applies to any
case in which . . . identification of the responsible party may be impossible without pretrial
discovery.” 55 The court recognized that while eventually the plaintiff would have to discover
information sufficient to overcome a Rule 12(b)(6) dismissal under Twombly and Iqbal, his
initial inability did not warrant immediate dismissal. 56 This rationale would seemingly apply to
civil rights cases in other contexts.
V.

How Plausibility Discovery Would Work in Practice: A Roadmap for Judges

So how would plausibility discovery actually work in practice? Let’s assume someone
believes her civil rights have been violated, so she conducts a thorough investigation and then
files a lawsuit in federal court alleging discrimination based on the facts available at this time.
She and her lawyer have done their best to gather evidence about the case, but because there has
been no formal discovery, they do not have the defendant’s policy documents or testimony
indicating discriminatory motive. Not surprisingly, the defendant counters that plaintiff’s claim
is implausible because her facts could suggest discrimination or some other perfectly innocent
explanation. Thanks to Iqbal, the defendant files a Rule 12(b)(6) motion to dismiss plaintiff’s
case, believing that he has a greater shot at it being granted. So how can a plaintiff get access to
the federal court where she has a potentially meritorious civil rights case but informational
inequality has compromised her ability to demonstrate she has a plausible claim for relief? The
following is a roadmap for how a judge can preserve court access, while adhering to his mandate
to provide efficient and just procedural outcomes.
First, the judge should establish that informational inequality exists. Informational
inequality exists where the defendant has exclusive or primary control over the information
necessary for the plaintiff to make a plausible showing to the court. Examples include facts
about a defendant’s state of mind (such as intent to discriminate), secret agreements (such as
conspiracies), and companywide policies and statistics. 57 Given that plausibility discovery is
justified where there is unequal access to information between the plaintiff and defendant, this
must be the starting point. It is important for the judge to understand that despite the plaintiff’s
due diligence, she came up empty handed because the cards were stacked against her. To make
sure that a plaintiff acted diligently, a judge may order the plaintiff to explain what efforts she
made pre-filing and why she should get pre-dismissal discovery to bridge the plausibility gap. 58
Upon this showing by the plaintiff, a judge should recognize the informational inequality.
54

Id.
Id.
56
Id.
57
Claims most likely implicated include civil rights (such as § 1983 and employment discrimination), antitrust,
products liability, and environmental law.
58
The court may consider using an iteration of some or all of the criteria for a Rule 56(f) request for discovery:
55

To request discovery under Rule 56(f), a party must file an affidavit describing: (1) what facts are
sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a
genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why
the affiant’s efforts were unsuccessful.

12

Second, the judge should defer ruling on the motion to dismiss. A judge should not rule
on the Rule 12(b)(6) motion because if he does, he may lack jurisdiction to order any discovery.
Third, the judge should order plausibility discovery. Having determined that there is
informational asymmetry and put the motion to dismiss on hold, the judge may order plausibility
discovery at the plaintiff’s request. Of course, ordering this discovery only makes sense if there
is a reasonable chance it will bear fruit. The scope and form of the discovery should be worked
out by the parties with the court’s approval. At this juncture, the goal is for the court to order
very narrow discovery, focused exclusively on unearthing facts identified as necessary for
demonstrating plausibility. Having initially persuaded the court that the playing field is tilted
against her, she should now demonstrate that it would not take much to level it. Care must be
taken to ensure that plausibility discovery does not become merits discovery. To protect the
defendant from the cost and burden of unwarranted merits discovery, plausibility discovery must
be narrowly-defined and limited to just what is necessary to cross the viability threshold. To
facilitate this process, a court may request that the parties meet and confer and create a proposed
discovery plan, using Rule 26(f) for guidance, which the court can approve or modify as needed.
Fourth, the judge should allow plaintiff to amend her complaint. Once the parties have
had an opportunity to take limited discovery on the question of plausibility, the plaintiff will
likely move to amend her complaint to incorporate the new facts she has found. Pursuant to Rule
15(a)(2), “[t]he court should freely give leave when justice so requires” 59 and under Rule 8(e),
“[p]leadings must be construed so as to do justice.” 60 Judges generally promote a liberal leave
policy, permitting leave whenever possible. 61 In fact, under the new pleading standard, as
complaints fail to meet the plausibility test, many judges are liberally granting plaintiffs leave to
amend. However, where the complaint’s implausibility is due to an informational inequality, an
opportunity to re-plead does little good without some narrow discovery to ameliorate the
problem.
Fifth and finally, the judge should rule on the motion to dismiss. Considering the
plaintiff’s amended complaint, the judge should rule on the defendant’s 12(b)(6) motion to
dismiss.62 The plaintiff will have had a fair opportunity to enhance her complaint with facts

Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004).
FED. R. CIV. P. 15(a)(2).
60
FED. R. CIV. P. 8(e).
61
See Foman v. Davis, 371 U.S. 178, 182 (1962).
62
Plausibility discovery does not require a court to convert a defendant’s 12(b)(6) motion into a Rule 56 summary
judgment motion. If a defendant takes some limited discovery to counter plaintiff’s evidence of a plausible claim,
and the judge considers such extrinsic evidence, he will be required under Rule 12(d) to convert the Rule 12(b)(6)
motion into a Rule 56 summary judgment motion. See Rule 12(d), which states:
59

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56.
All parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.
FED. R. CIV. P. 12(d).

13

revealed through plausibility discovery and the defendant will have a renewed opportunity to
rebut the amended complaint. Under this approach, a judge appropriately balances the goals of
justice and efficiency.
VI.

Plausibility Discovery as the Next Step

The concept of discovery at the pleading stage to determine plausibility is admittedly in
its infancy. However, it is starting to gain some traction. 63 For example, in Swanson v. Citibank,
N.A. 64—a civil rights case alleging discrimination—prolific scholar and Seventh Circuit Judge
Richard Posner recognized in his dissenting opinion, “If the plaintiff shows that he can’t conduct
an even minimally adequate investigation without limited discovery, the judge presumably can
allow that discovery, meanwhile deferring ruling on the defendant’s motion to dismiss.” 65
Preeminent procedural scholar and professor for 40 years, Arthur R. Miller, also recognizes
plausibility discovery as a viable option for dealing with informational inequality:
A . . . possibility might be authorizing early, limited, and carefully
sequenced discovery following the interposition of a motion to
dismiss . . . . Contained discovery before the motion’s resolution
could provide a fruitful middle ground for evaluating challenges to
cases that lie between the traditional Rule 12(b)(6) motion based
on the complaint’s legal or notice-giving sufficiency and a motion
based on the complaint’s failure to meet the factual plausibility
precepts of Twombly and Iqbal. 66 . . .
***
The Iqbal Court indicated that the current structure of Rule 8
forbids any access to discovery if the plausibility standard has not
been met. That point is neither irrefutable nor immune from rule
revision. . . . Nor is there any mandatory or automatic stay of
discovery while a Rule 12(b)(6) motion is pending. . . . The
district court judge therefore could permit discovery—presumably,
but not necessarily, limited to matters relating to the issue of
plausibility—prior to or during the pendency of the motion to
dismiss and could then consider anything relevant that emerged. 67

63

See Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 932–
35, 934 n.256 (2009) (describing pleading-stage discovery as “promising”); A. Benjamin Spencer, Pleading Civil
Rights Claims in the Post-Conley Era, 52 HOW. L.J. 99, 161 (2008) (arguing for limited initial discovery on specific
issues at the pleading stage for civil rights cases); Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV.
1293, 1351-56 (2010).
64
Swanson v. Citibank, N.A., 614 F.3d 400, 412 (7th Cir. 2010).
65
Id. at 412 (Posner, J., dissenting) (citing cases; Malveaux, supra note 11; and Hartnett, supra note 41, at 507-14).
66
Miller, supra note 28, at 107.
67
Id. at 109 (citing cases; congressional testimony; Malveaux, supra note 11, at 69; and Hartnett, supra note 41, at
507-14).

14

The justices dissenting in Twombly and Iqbal recognized the value of a similar procedure,
“phased discovery,” 68 based on the same concept of protecting the defendant from merits
discovery while permitting the parties some threshold discovery rather than granting defendant’s
Rule 12(b)(6) motion. In Justice Stevens’s dissent in Twombly, he suggested that had he been
the district court judge, he would have permitted plaintiffs to take some targeted depositions of
executive defendants rather than summarily dismissing plaintiffs’ claims. 69 In Twombly, the
plaintiffs had proposed a plan of “phased discovery,” comprised of an initial phase of discovery
“limited to the existence of the alleged conspiracy and class certification,” to be followed by
“more expansive, general discovery” if the class claims survived summary judgment. 70 This
phased discovery proposal was, according to Justice Stevens, “an appropriate subject for
negotiation.” 71
Similarly, the Second Circuit in Iqbal was receptive to a phased discovery plan that
would have protected senior government officials from premature merits discovery by requiring
front-line officials to be subjected to discovery first. 72 The Second Circuit noted that even if a
complaint survives a Rule 12(b)(6) challenge, the district court may “exercise[] its discretion to
permit some limited and tightly controlled reciprocal discovery so that a defendant may probe for
amplification of a plaintiff’s claims and a plaintiff may probe” issues pertaining to qualified
immunity. 73 In Justice Breyer’s dissent in Iqbal, he cited with approval the ways in which
discovery can be structured and cases managed to protect government officials from unwarranted
litigation, as described by the Second Circuit. 74
Others have recognized the utility of plausibility discovery75 and proposed similar ways
discovery can address the informational inequality issue. 76 Indeed, it was the topic of discussion
68

See Bone, supra note 63, at 933 n.251.
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1986–87 (2007) (Stevens, J., dissenting).
70
Brief for Respondents at 25, Twombly, 127 S. Ct. 1955 (No. 05-1126).
71
Twombly, 127 S. Ct. at 1987 (Stevens, J., dissenting).
72
See Iqbal v. Hasty, 490 F.3d 143, 158, 178 (2d Cir. 2007).
73
Id. at 158.
74
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1961–62 (2009) (Breyer, J., dissenting).
75
Miller, supra note 28, at 107 (“There is considerable support for this.”); see Memorandum from Mark R. Kravitz,
Chair, Advisory Comm. on Fed. Rules of Civil Procedure to Lee H. Rosenthal, Chair, Standing Comm. on Rules of
Practice and Procedure 15 (May 17, 2010) [hereinafter Memorandum], available at
http://ftp.documation.com/references/ABA10a/PDfs/4_1.pdf (“[S]taged discovery to support pleading may become
a useful means of addressing the problems of a plaintiff who needs access to information controlled by the defendant
in order to frame a complaint.”); Bone, supra note 63, at 932–35, 934 n.256 (describing pleading-stage discovery as
“promising”); Spencer, supra note 63, at 161 (arguing for limited initial discovery on specific issues at the pleading
stage for civil rights cases); Steinman, supra note 63, at 1351-56.
76
See, e.g., SPECIAL COMM., AM. BAR ASS’N SECTION OF LITIG., CIVIL PROCEDURE IN THE 21ST CENTURY: SOME
PROPOSALS 8 (2010), available at http://www.abanet.org/litigation/docs/civil-procedure-proposals.pdf; Letter from
Albert A. Foer, President, Am. Antitrust Inst., to the Standing Comm. on Rules of Practice & Procedure of the U.S.
2 (May 27, 2010), available at
http://www.antitrustinstitute.org/sites/default/files/Iqbal%20letter%205%2027%2010_052720101301.pdf
(encouraging “limited, non-burdensome discovery prior to consideration of the motion to dismiss”); Inst. for the
Advancement of the Am. Legal Sys., Fact-Based Pleading; A Solution Hidden in Plain Sight, UNIV. OF DENVER,
http://www.du.edu/legalinstitute/pubs/Fact-BasedPleading.pdf. See also Scott Dodson, Federal Pleading and State
Presuit Discovery, 14 LEWIS & CLARK L. REV. 43 (2010) (discussing potential role of state presuit discovery in
addressing informational asymmetry); Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The
69

15

among several scholars, practitioners, and judges at the Judicial Conference of the United
States’s Civil Rules Advisory Committee meeting held on May 10 and 11, 2010, at Duke
University School of Law. 77
While plausibility discovery may offer a lifeline to civil rights plaintiffs struggling to get
federal court access post-Iqbal, it is not a panacea. It clearly does not address all of the problems
the more rigorous pleading standard poses. It does nothing to address the overly subjective
nature of how judges go about determining if a claim is plausible by using their “judicial
experience and common sense.” If anything, this approach may rely more heavily on a judge’s
discretion by conditioning the availability of plausibility discovery on individual judges’ caseby-case determinations. While recognizing the value of plausibility discovery, Professor Miller
notes this limitation:
A matter of this magnitude should not be left to the inclinations of individual
judges, however. Whether or not the Supreme Court’s prescription is taken
literally, a significant revision of the pleading and motion rules appears to be
necessary to create a more textured and balanced solution to the informationaccess problem. 78
Others have made similar observations but concluded that a legislative fix is the
answer. 79 Nor does plausibility discovery address the fact that a judge may still conclude that
plaintiff’s theory is implausible because it pales in comparison to a more benign explanation,
given the facts set out early in the case.
VII.

Conclusion

Plausibility discovery admittedly functions as a stop gap measure; it offers a temporary
lifeline for civil rights plaintiffs to get access to the federal courts until a more institutional
solution comes along. Given the very real possibility that a Rules change or act of Congress may
be months, if not years, away, plausibility discovery creates an opportunity for potentially
meritorious cases to survive rather than die on the vine. This reason alone justifies creative
lawyering and judicial decisions that consider all of the tools in a judge’s toolbox. Indeed, some
lawyers and judges are catching on. 80

Role of Presuit Investigatory Discovery, 40 U. MICH. J.L. REFORM 217, 222–23 (2007) (describing pre-suit
discovery as an option).
77
See Memorandum, supra note 75, at 4 (“Various proposals were explored to ensure an opportunity for targeted
discovery before dismissal for failure to state a claim, particularly in ‘asymmetrical information’ cases.”).
78
Miller, supra note 28, at 110.
79
See Joshua Civin & Debo P. Adegbile, Restoring Access to Justice: The Impact of Iqbal and Twombly on
Federal Civil Rights Litigation, AM. CONSTITUTION SOC’Y ISSUE BRIEF, Aug. 2010, at 18.
80
See Memorandum, supra note 75, at 3:
At least some trial judges achieve a tacit accommodation [to the information asymmetry problem]
by allowing discovery to proceed while considering a motion to dismiss. It may be that the most
effective response for plaintiffs who lack equal access to essential information will be to focus on
some new means of controlled discovery in aid of pleading, not on the 1938 language of Rule
8(a)(2) that construed in the Twombly and Iqbal opinions.

16

While plausibility discovery may not address every problem posed by the more rigorous
pleading standard, it addresses one of most pernicious ones. According to Professor Miller
“inequality of information access” is “a significant—if not the most significant—problem for
many people seeking affirmative relief.” 81
The courts are in unchartered territory post-Iqbal. The challenge of preserving court
access for those civil rights plaintiffs struggling with informational inequality is great. This is an
important moment in the history of modern civil procedure. The new plausibility pleading
standard may threaten the viability of claims that protect fundamental American values, such as
civil rights. Given their charge to administer and interpret the rules to promote efficiency and
justice, judges are empowered and encouraged to consider how plausibility discovery can help
ameliorate this threat.

Id.; see, e.g., Kregler I, 608 F. Supp. 2d 465 (S.D.N.Y. 2009); see also Kregler II, 646 F. Supp. 2d 570, 581
(S.D.N.Y. 2009).
81
Miller, supra note 28, at 105.

17

 

 

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