This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal - when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results that they can have when the plaintiff is confronted with information asymmetry. Third, this Article describes various state law presuit discovery tools that are available to be used by plaintiffs who fear dismissal under the federal pleading standards. It then considers whether they can be an effective tool for avoiding dismissal, in light of both their utility and their limitations. Finally, this Article argues that both the availability and limitations of state presuit discovery options support amending the federal rules to provide for federal presuit discovery.
14 Lewis & Clark Law Review 43-64 (2010)
Dodson, Scott, "Federal Pleading and State Presuit Discovery" (2010). Faculty Publications. 30.