Discovery Issues

• Pages: 165-179

165

CHAPTER IV

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).

2. See ABA SECTION OF ANTITRUST LAW, ANTITRUST DISCOVER Y

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).