Discovery plays a key role in our modern federal courts. Discovery can be costly and burdensome, but it also enables settlement, reduces informational disparities between parties, and clarifies issues for trial. Under the Federal Rules of Civil Procedure, discovery is intended to occur with limited intervention by the court, absent a dispute arising. However, in cases where a motion to dismiss is filed, judges are routinely asked to stay discovery while that motion is pending. Because the decision whether or not to stay discovery in this situation is so consequential, this Article examines what judges are doing currently on motions to stay discovery and recommends prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure.
By far the largest driver of litigation costs is the cost associated with discovery, and thus access to discovery can have significant effects on parties and the outcomes of cases. Discovery can impose significant costs on both parties and may even take up the court’s time if discovery disputes arise. Some people also take the view that our discovery system allows for “discovery abuse.” However, despite these costs and burdens, discovery has many benefits as well. Discovery equalizes information asymmetries, thereby enhancing settlement prospects and also reducing surprises and gamesmanship at trial. Engaging in discovery allows both sides to more fully assess the strengths and weaknesses of claims and defenses. The current discovery system is also designed to proceed without the direct involvement of judges unless a dispute arises.
Due to the important costs and benefits of discovery, decisions that affect the scope, timing, or availability of discovery are enormously consequential. For civil litigation in federal court, district and magistrate judges make many decisions about discovery that affect the cases before them. They decide the length and number of depositions that may be taken, compel or protect against the production of large numbers of documents and electronic data searches, serve as gatekeepers for expert witness testimony, and even decide whether the parties may take discovery at all until any motions to dismiss have been resolved. This Article focuses squarely on the last issue, by both developing a framework for understanding the principles and considerations that affect whether a particular judge will stay discovery in a case pending resolution of a motion to dismiss and providing recommendations for how judges should exercise their discretion to control the discovery process. The principal goal of judges should be to reduce or balance the costs and burdens of unnecessary discovery against those of undue delay. In determining which test should be applied to achieve those ends, my principal goal is to align the burden on the judges with the risk of error in deciding a motion to stay discovery.
Rule 1 of the Federal Rules of Civil Procedure directs that the Rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Although the Rules go into some (limited) detail as to how judges are to achieve those goals in specific situations, in other areas the Rules are silent. One such area of particular importance is whether a case should proceed, including the potentially expensive and time-consuming discovery process, when a motion to dismiss is pending. In this context, the goals create readily apparent tensions. A speedy determination would ordinarily involve moving quickly to discovery so that the ultimate resolution of the case would not be delayed if the motion to dismiss were denied, at least in part. At the same time, if a case might be dismissed entirely, or narrowed significantly, by the resolution of the motion to dismiss, then commencing broad-based discovery would add unnecessary expense to the case. This raises the question: when does a stay of discovery effectively stay justice? The Rules and appellate decisions make clear this issue is left to the discretion of judges at the trial level. In exercising this discretion, courts might automatically stay discovery when a motion to dismiss is pending, never stay discovery in that circumstance (or disfavor it), or apply some kind of balancing test to weigh the competing interests and the potential harms due to delay or due to unnecessary discovery.
This Article examines how courts determine whether to stay discovery when motions to dismiss are pending,10 a critical procedural issue that has heretofore received relatively scant academic interest.
