Wednesday, May 2, 2012
Prof. Kevin Lynch (Denver) has posted on SSRN his article, When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending, which appears in the Wake Forest Law Review. Here’s the abstract:
Discovery plays a central role in our judicial system, and while discovery provides many benefits to the parties and to the courts, it also imposes burdens and costs. Discovery reduces informational asymmetries, clarifies claims and defenses for trial, and encourages settlement. But it costs money to take depositions of witnesses, produce documentary evidence, and pay for the time of experts and lawyers. When a motion to dismiss is filed, the possibility that discovery will not be necessary presents a risk of wasted resources if discovery is not stayed while the motion to dismiss is resolved. However if discovery is stayed and the motion to dismiss is ultimately denied, even in part, then the entire case was delayed unnecessarily. Delay also presents a risk of deterioration of evidence as documents are lost, memories fade, or witnesses become unavailable. These are the considerations that judges must weigh against one another when deciding a motion to stay discovery due to a pending motion to dismiss.
Despite the importance of judicial decisions regarding discovery stays, this issue has received hardly any attention from legal scholars. This may be due to the relative scarcity of appellate decisions laying out standards for deciding motions to stay discovery, or it may be due to the difficulties in gathering reliable data on the discovery process. This Article fills this gap by examining what judges are doing currently on motions to stay discovery and recommending prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure. Relying on extensive research into federal court cases discussing discovery stays, the Article identifies eight primary considerations that affect discovery stays and provides guidance to judges regarding the appropriate standard to apply based on the characteristics of individual cases, focusing on the benefits of efficiency and transparency.
The Article proceeds in five parts. Part I lays out the issue of discovery stays when a motion to dismiss is pending. Part II provides background on the costs and burdens of discovery, the various interests at stake, and the judicial role overseeing discovery. Part III presents the current state of the law by looking at the various standards that courts have explicitly applied when deciding motions to stay discovery. Part IV develops a framework for understanding and reconciling existing precedent on discovery stays with reference to eight primary considerations. Part IV also lays out a prescription for judges to use in exercising their discretion in this context. Part V examines the broader issue of “discovery abuse” and specific cases where discovery is automatically stayed while also noting areas for further inquiry into this issue.