In antitrust litigation, defendants routinely resist discovery pending a motion to dismiss.  They rely on Bell Atlantic Corp. v. Twombly, arguing that they should not be put through the expense of discovery until the Court decides whether the claims are plausible.  On September 8, 2011, the United States District for the District of Colorado rejected such tactics.  SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 11-CV-01468-WJM-BNB, 2011 WL 4018207 (D. Colo. Sept. 8, 2011).  The Court held that Twombly “does not erect an automatic, blanket prohibition on any and all discovery before an antitrust plaintiff’s complaint survives a motion to dismiss.”  (citation omitted).  It explained that “[w]hen the discovery would not be so burdensome, a closer question is presented, a question calling for the exercise of discretion and the balancing of competing factors.” (citation omitted).  The Court noted that “[a] party seeking a protective order under Rule 26(c) has the burden of demonstrating good cause and cannot sustain that burden simply by offering conclusory statements.  Accordingly, the party moving for a protective order must make a particular and specific demonstration of fact in support of its request.”  The Court denied the stay because the defendant did not make a factual showing of burden.

Plaintiffs would be well advised to press for at least targeted discovery, such as documents produced in government investigations.  To extent that no genuine burden exists, such discovery should be obtainable pending a motion to dismiss regardless of its strength.