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.

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