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November 30, 2016 Practice Points

Litigators Must Learn to Balance Relevance with Proportionality in Discovery

The chair of the Advisory Committee on the Federal Rules of Civil Procedure holds that all parties, as well as the court, have a collective responsibility to consider proportionality.

By Ronald Hedges

The discovery analysis in In re: Bard IVC Filters Products Liability Litigation, No. MDL 15-02641- PHX DGC, 2016 WL 4943393 (D. Arz. Sept. 16, 2016), should be of particular interest to attorneys who litigate in the federal district courts because its author, Judge David G. Campbell, chaired the Advisory Committee on the Federal Rules of Civil Procedure, which was responsible for the 2015 amendments. In Bard, the plaintiffs in this products-liability action sought discovery of communications between foreign subsidiaries or divisions of the defendant that sold the product in issue abroad, and foreign regulators. In holding that the defendant need not search its electronically stored information for such communications, the court analyzed the scope of discovery under the December 1, 2015, amendment of Fed. R. Civ. P. 26(b)(1). Judge Campbell focused on the elimination of the phrase “reasonably calculated to lead to the discovery of admissible information” as well as the requirement that discovery be “proportional to the needs of the case” set forth in the rule, and found that the discovery sought was “marginally relevant” and the purpose of the discovery—to show inconsistencies in communications between foreign and American regulators—was “more hope than likelihood.” Judge Campbell also held that all parties, as well as the court, had a collective responsibility to consider proportionality. Relying on Bard, a number of commentators have concluded that the scope of discovery has been narrowed. Narrowed or not, Bard emphasizes the need for federal litigators to balance relevance with proportionality when making or opposing discovery requests.

Ronald Hedges is with Dentons in New York, New York.

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