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.