Discovery Issues

A. Implications of the Notice Pleading Requirement
In Bell Atlantic Corp. v. Twombly,1 the U.S. Supreme Court
articulated a revised standard of notice pleading under Rule 8 of the
Federal Rules of Civil Procedure that has been applied not just to alleged
conspiracies to violate the antitrust laws but to other antitrust claims as
well.2 Describing the “no set of facts” language under Conley v. Gibson3
as “an incomplete, negative gloss on an accepted pleading standard” that
is “best forgotten,”4 the Court made clear that to survive a motion to
dismiss, a complaint must state enough facts to show that the claims are
plausible on their face.5 Stated another way, the allegations must “nudge
[the] claims across the line from conceivable to plausible[.]”6
Twombly is pertinent to a discussion concerning discovery because,
as the Court explained, the plausibility standard under Rule 8 has a
“practical significance”: it exposes groundless or factually deficient
antitrust claims “‘at the point of minimum expenditure of time and
money by the parties and the court.’”7 The Court was especially
1. 550 U.S. 544 (2007).
HANDBOOK (2d ed. 2003) for a broader discussion of discovery issues in
antitrust litigation.
3. 355 U.S. 41, 45–46 (1957) (articulating “the accepted rule that a
complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief”).
4. Twombly, 550 U.S. at 561.
5. Id. at 570 (“we do not require heightened fact pleading or specifics, but
only enough facts to state a claim to relief that is plausible on its face”);
see also id. at 557 (holding that Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires that the “plain statement” in a pleading “possess
enough heft” to show that pleader is entitled to the relief being sought).
6. Id.
7. Id. at 558 (quoting 5 CHARLES ALAN WRIGHT & ARTHUR MILLER,
FEDERAL PRACTICE & PROCEDURE Civil § 1216, at 233–34).

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