In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly underinclusive because it does nothing to impact defendant discovery abuse. Additionally, the Court emphasized the universality of the new plausibility pleading standard in a qualified immunity context that may have caused it to misconceive a right to avoid discovery. All of this has greater implications for access to justice than for addressing the perceived deficiencies in our discovery procedures that so concerned the Court.
Discovery reform — not pleading reform — is a better option. Though the Rules Advisory Committee has recently campaigned to reform discovery, it has unwisely sought to bring discovery into accord with plausibility pleading, as evidenced by proposals to tighten and reduce discovery and to eliminate form complaints. These proposed reforms are misguided because what is needed is not less discovery but better-tailored discovery. In an effort to broaden the discussion, this article closes by surveying numerous discovery reform options.
80 Brook. L. Rev. 1487 (2015)
80 Brook. L. Rev. 1487