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Sturm College of Law


Discovery, Federal Courts, Federal Rules of Procedures, Litigation cost, Motion to Stay Discovery


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.

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Originally published as Kevin J. Lynch, When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss Is Pending, 47 Wake Forest L. Rev. 71 (2012).