Ashcroft v. Iqbal, 556 U.S. ____ (2009) was a case in which the United States Supreme Court ^[1] held that top government officials were not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity. The Supreme Court held that conclusionary facts, without more evidence, were insufficient to defend against a motion to dismiss. Iqbal sought to sue government officials for purposeful and unlawful discrimination. Then Attorney General John Ashcroft and other government officials, while responding to 9/11, had put forth programs to investigate and detain persons of Arab descent.

The Court made very clear that the holding of Twombly, once thought to be narrowly applied in certain antitrust cases, “expounded the pleading standard for all civil actions.” In Twombly, the justices put forth the expectation that, while legal conclusions can provide a foundation for a pleading, it is necessary that the facts must “nudge” the claim “across the line from conceivable to plausible.”

As in Twombly, in Ashcroft v. Iqbal the Supreme Court identified discovery as one of the reasons to place a higher bar for plaintiffs. Rejecting a concept called “cabin discovery,” the Court also rejected a judicially controlled discovery process, quoting this passage from Twombly:

It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side.

A return to fact pleading is one of the major recommendations of trial lawyers in a recent report on discovery. In the report, entitled Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS), ^[2] the trial lawyers are recommending many changes to the Federal Rules of Civil Procedure (FRCP) to reduce the costs and burden of electronic discovery, including reducing the number of cases by replacing notice pleading with fact pleading.

The Supreme Court rejected deferring the discovery of government officials (with their qualified immunity) while other parties were actively engaged in discovery, since “even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.” The Court anticipated that petitioners and their counsel would want to participate in the process to “ensure the case does not develop in a misleading or slanted way that causes prejudice to their position.”

Net impact on e-discovery: Fewer civil cases will survive at the “motion to dismiss” stage, reducing the management burden of multiple meet-and-confers and productions. Early case assessment will increase for business-to-business plaintiff actions. More risk will be assumed by organizations choosing not to preserve.

Momentum for the trial lawyers’ effort is mounting.

The Defense Research Institute (DRI) issued the DRI Future of Litigation Report ^[3] this month and supported the trial lawyers’ opinion that e-discovery is driving costs and causing settlements. An overwhelming majority believes that it will be incumbent on judges to bring e-discovery under control via effective rule enforcement, limiting fishing expeditions, imposing meaningful sanctions for abuse and providing sufficient guidance to both parties regarding appropriate document production and related processes.

Thomas A. Gottschalk is also urging his colleagues in the Lawyers for Civil Justice, to support the “audacious” and “breathtaking” recommendations of the College of Trial Lawyers. You can read his article in this month’s edition Metropolitan Corporate Counsel here ^[4].

As I discussed in my April column ^[5] and on my Sound Evidence ^[6] blog on DiscoveryResources.org ^[7], the changes recommended by the trial lawyers would require us to rethink almost the whole body of pretrial management rules and procedures, including pleadings and discovery. This revolutionary proposal needs to be engaged by a broad cross section of the best minds and hearts of those who are stewards of justice. And the engagement has begun.