When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending 47 Wake Forest Law Review 2012

47 Wake Forest L. Rev. 71 (2012)
When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending

handle is hein.journals/wflr47 and id is 73 raw text is: WHEN STAYING DISCOVERY STAYS JUSTICE:
ANALYZING MOTIONS TO STAY DISCOVERY
WHEN A MOTION TO DISMISS IS PENDING
Kevin J. Lynch*
INTRODUCTION
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,2 and thus access to discovery can have significant
* Environmental Law Clinic Fellow, University of Denver Sturm College
of Law, klynch@law.du.edu. I would like to thank those who provided feedback
on earlier drafts of this Article, especially Tammy Kuennen, Brittany Glidden,
Lindsey Webb, Eric Franklin, Alan Chen, and Beto Judrez, as well as the
participants in the 2010 Clinical Law Review Writer's Workshop.
1. Reliable data regarding the frequency of cases in which a stay of
discovery occurs are lacking. I intend, as discussed below in the Conclusion, to
address some of the many empirical questions raised by this issue in the future.
However, given the large number of published and unpublished opinions
available by searching Westlaw or other commercial databases, it is reasonable
to assume that motions to stay discovery are fairly common in cases where a
motion to dismiss is filed.
2. Estimates for litigation costs associated with discovery vary, yet the
estimates typically assert that more than half of all litigation costs are due to
discovery. In 1999, the Administrative Office of the U.S. Courts estimated that
discovery represented 50% of the litigation costs in an ordinary case, and up to
90% in cases where discovery is actively used. Judicial Conference Adopts
Rules Changes, Confronts Projected Budget Shortfalls, THIRD BRANCH (Admin.
Office of the U.S. Courts, D.C.) Oct. 1999, at 1, 2-3, available at
http://www.uscourts.gov/News/TheThirdBranchl99-10-Ol/JudicialConference
AdoptsRulesChangesConfrontsProjectedBudgetShortfalls.aspx. The

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