United States: In Re: Bard IVC Filters Products Liability Litigation

Under the Amended Discovery Rules Requiring Proportionality, the District of Arizona Refused to Compel Bard to Search For Foreign Communications

On September 16, 2016, the District of Arizona held that the costs and burden to Bard of the plaintiff's discovery demand was "not proportional to the needs of the case."²² The case demonstrates the importance of the 2015 Amendment to Rule 26 of the Federal Rules of Civil Procedure.

First, stating that Federal Rule of Civil Procedure 26(b)(1) was amended on December 1, 2015 to provide that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case," the Court noted that the amended rule included a "direct declaration" that information "need not be admissible in evidence to be discoverable" and that the amended rule "thus eliminated the 'reasonably calculated' phrase as a definition for the scope of permissible discovery."²³ Second, the Court noted that relevancy is "no longer sufficient—discovery must be proportional to the needs of the case" and that "the parties and the court have a collective responsibility to consider the proportionality of all . . . disputes."²⁴

Turning to the case, the Court held that while most of the relevant communications would be captured by Bard's undisputed discovery searches, there were some communications that originated outside those discovery searches that may not be captured.²⁵ As to proportionality, the Court agreed with Bard that the "burden or expense of the proposed discovery outweigh[ed] its likely benefit," noting that the demanded search included entities from 18 countries around the world from which Bard would be "required to identify the applicable custodians . . . for the last 13 years, collect ESI from these custodians, and search for and identify communications with foreign regulators."²⁶ Noting Bard's "substantial discovery" should capture most relevant communications, the Court held that the burden and expense of the challenged discovery demand outweighed the benefit, which was "a mere possibility" of finding relevant information.²⁷ Accordingly, because the demand was "not proportional to the needs of the case," the Court found in Bard's favor.²⁸

In re Bard is an excellent interpretation for defendants of the new proportionality discovery rules and one that can be cited frequently in discovery briefing.

Footnotes

22. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. Sept. 16, 2016).

23. Id. at 564.

24. Id. (quoting Fed. R. Civ. P. 26, Advis. Comm. Notes for 2015 Amends).

25.  Id. at 566.

26.  Id.

27.  Id.

28.  Id

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