February 27, 2017 Top Story

Rule 26(b)(1) Proportionality Requirement No Paper Tiger

Focus on proportionality and forget “reasonably calculated,” court says

By Jamison L. Barkley

In a high-profile MDL discovery order, a federal court has disallowed wide-ranging discovery on the basis that the requests were disproportionate to the needs of the case. The judge, who also just completed his term as Chair of the Advisory Committee on the Federal Rules of Civil Procedure, took the opportunity to emphasize the central role of proportionality under the amended Rule 26(b)(1) and attempt to put the "reasonably calculated" standard to bed.

The Plaintiffs' Discovery Request

After engaging in significant discovery aimed at obtaining the defendant's communications with American regulators, the plaintiffs in the Bard IVC Filters MDL sought ESI in the control of eighteen of the defendant's foreign subsidiaries regarding communications with foreign regulators. The plaintiffs were looking for inconsistencies in what the defendant had told American regulators versus what it had told foreign regulators about the safety of the product at issue.

The U.S. District Court for the District of Arizona started by noting that the "reasonably calculated to lead to the discovery of admissible evidence" standard was never intended to define the scope of discovery because it was so broad as to "swallow any other limitation." While some courts still invoke the language, the In re Bard IVC Filters court held that the 2015 rule amendments abrogated all cases applying the prior version of Rule 26(b)(1). According to the court, making an argument in federal court that a discovery request is "reasonably calculated" is now obsolete.

With the removal of the "reasonably calculated" language, "the test going forward is whether evidence is 'relevant to any party's claim or defense,'" the court held. But relevancy alone is no longer sufficient. To be discoverable, the court held, information must be both relevant and proportional to the needs of the case. Applying the new standard, the In re Bard IVC Filters court held that the requested discovery was disproportionate and not permitted under Rule 26(b)(1).

Not Relevant

With regard to relevance, both parties had acknowledged that most of the defendant's regulatory communications were generated in the United States, all plaintiffs were American, and all alleged injuries took place in the United States. The court thus deemed the foreign regulatory communications only marginally relevant. Further, and critically, in the discovery already conducted, there was no apparent evidence of inconsistent statements to regulators. The court characterized the likelihood of the plaintiffs finding such evidence as "more hope than likelihood."

Not Proportional

Turning to proportionality, the court concluded that "the burden and expense of searching ESI from 18 foreign countries over a 13-year period outweighs the benefit of the proposed discovery—a mere possibility of finding foreign communications inconsistent with the United States communication." While the old rule may have allowed the additional discovery, the new rule would not. The plaintiffs were foreclosed from this line of discovery.

Advice to Counsel

Kevin J. Bruno, New York, NY, cochair of the ABA Section of Litigation's Environmental & Energy Litigation Committee, suggests having an informed discussion with opposing counsel about the needs of the case at the outset to identify the discovery the plaintiff needs to prove its case. "The proportionality and relevancy requirements now simply ask more of the parties—to make an informed assessment of what you have, and what you actually need in your case," observes Bruno. "Address the proportionality upfront and avoid extensive motion practice," he adds.

"Discovery is estimated to make up approximately 90 percent of the cost of litigation," says Kathryn Honecker, Scottsdale, AZ, cochair of the Section of Litigation's Consumer Rights Litigation Committee. "If we can get that cost down by focusing our discovery efforts, it will allow greater access to the courts."


Jamison L. Barkley is a contributing editor for Litigation News.

Keywords: Federal Rule of Civil Procedure 26, proportionality, discovery, amended rule 26, ESI, MDL

Related Resources

  • In Re Bard IVC Filters Products Liability Litigation.
  • Federal Rule of Procedure 26.
  • Michael J. Miles, "Proportionality Under Amended Rule 26(b)(1): A New Mindset," Pretrial Practice & Discovery (May 18, 2016).
  • Patricia Daza-Luu, "Proportionality: A Case Law Analysis," The Woman Advocate (Feb. 23, 2016).
  • David G. Campbell, "New Rules, New Opportunities," 99 Judicature 19 (2015).

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