April 5, 2020

April 05, 2020

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April 03, 2020

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Marginal Discovery Disallowed Because It Was Not Proportional To Needs Of Case

Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig.2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices.

The decision is notable in part because it was issued by Judge David G. Campbell, who chaired the Rules Committee when the 2015 amendments were passed. Judge Campbell first reminded the litigants (and all other readers) that parties 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.  As to the first part of this test, the Court noted that the new formulation of the Rule eliminates the former provision that inadmissible evidence was discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”  The court further noted that “[d]espite this clear change, many courts continue to use the phrase. Old habits die hard” and cited to seven decisions issued in the month prior that relied on the “reasonably calculated” language to define the scope of permissible discovery.

Judge Campbell’s gentle scolding of the profession is a good reminder for litigators to update their standard objections to discovery requests as well as brief points when moving for the production of discovery or defending against a motion to compel discovery.

Judge Campbell next addressed the second half of the test – proportionality – and held that the amended Rule 26(b)(1) “does not place on the party seeking discovery the burden addressing all proportionality considerations.” Instead, he noted, the Committee Notes to the amendments say the parties and the court have a “collective responsibility” to consider the proportionality of all discovery in resolving discovery disputes.

Some commenters have suggested that the revision and this Committee guidance should mean the principal burden falls on the judge and not the parties. How that will play out remains to be seen.

In this case – a product liability multidistrict litigation involving the malfunction of inferior vena cava filter implants – the plaintiffs requested communications between foreign entities that sell the filters abroad and foreign regulatory bodies.  Judge Campbell found those foreign communications were only marginally relevant, including because there were no plaintiffs from foreign countries, and because plaintiffs were seeking communications with foreign regulators for the narrow purpose of determining if any of those communications were inconsistent with defendants’ communications with the American regulators. The “mere conjecture” that foreign communications may be inconsistent with communications with the American regulators made the discovery only potentially relevant and not proportional to the needs of the case because the burden of located and producing the requested discovery outweighed its likely benefit, especially given the extensive discovery already taking place to capture communications with the American regulator.

Jackson Lewis P.C. © 2020


About this Author

Joseph E Schuler, Real Estate Trust, Trade Secrets Action, Jackson Lewis Law Firm

Joseph E. Schuler is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He has litigated claims for breach of non-competition agreements, theft of trade secrets, and/or breach of the duty of loyalty in Maryland, Virginia, and the District of Columbia.

Mr. Schuler recently represented a publicly-traded real estate trust in a breach of trade secrets action against a former employee and start-up competitor backed by a national real-estate firm, resulting in a settlement that provided the client with a mid-six figure recovery and a non-compete...

Matthew F. Nieman, Jackson Lewis, employment discrimination lawyer, tort contract claims attorney
Principal and Office Litigation Manager

Matthew F. Nieman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He also serves as the Litigation Manager for the office.

Mr. Nieman represents employers in a broad spectrum of labor and employment law matters, including discrimination, retaliation, wage and hour, whistleblower claims (including Dodd-Frank, the False Claims Act, and Sarbanes-Oxley), questions related to the Uniformed Services Employment and Re-employment Rights Act of 1994 (“USERRA”), and workplace drug-testing issues. He is actively involved in all phases of the litigation process on the full range of employment discrimination and employment-related tort and contract claims, including the representation of employers in actions before the Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Mine Safety and Health Administration, and various state and local agencies.


Brett M. Anders is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He exclusively represents management in workplace law, including counseling and litigation.

Mr. Anders routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, reductions-in-force and restrictive covenants. He also regularly conducts training programs for employers on a variety of employment-related topics, such as performance management, sexual harassment awareness and...