Supreme Court Should Address Ambiguous Federal Pleading Standards

The predominant factor driving litigation costs today is e-discovery. In a recent study analyzing the cost of litigation across 57 large cases, the RAND Institute for Civil Justice concluded that the cost of pre-trial document production alone was as high as $27 million in a single case and had a median cost per action of approximately $1.8 million.

These costs have rendered illusory the goal of the Federal Rules of Civil Procedure to “secure the just, speedy, and inexpensive determination of every action and proceeding.”

The Supreme Court therefore should seize the opportunity to provide much needed elucidation concerning the federal pleading standards, so that cases that lack merit are more likely to be dismissed before they reach the document production stage.

An upcoming case will give the Court a new chance to offer guidance. In Dart Cherokee Basin Operating Co. v. Owens, likely to be argued in early October, the justices will decide whether a defendant seeking removal of a class action lawsuit from state to federal court should first be required to meet certain evidentiary requirements.

That case could have implications for federal pleading standards because language outlining the statutory requirements for removal of a class action closely mirrors pleading requirements applied to all complaints filed in federal court. The ruling could shine light on how the Supreme Court interprets the requirement of plausibility in the pleading context, and corporate defendants and their lawyers will be watching closely.