C. R. Bard Won't Have to Produce Foreign Communications

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By Tera Brostoff

Sept. 19 — C.R. Bard won't have to produce electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices under the new civil rules for discovery, a federal district court in Arizona ruled Sept. 16 ( In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16 ).

Judge David G. Campbell said the requesting party doesn't carry the burden of addressing proportionality considerations on its own under the new version of Federal Rule of Civil Procedure 26(b)(1).

The court said that courts in the circuit are still applying the old version of the rule even though it is no longer in force. “Old habits die hard,” the court said.

Campbell is former chair of the Advisory Committee on Federal Rules of Civil Procedure, which drafted the recent amendments to the Federal Rules of Civil Procedure, including changes to Rule 26(b)(1). Rule 26(b)(1) governs discoverability, with a new mandate that discovery should be proportional to the needs of the case.

Campbell expressed particular concern with recent citations in motion practice to the phrase “reasonably calculated to lead to admissible evidence,” even though that well-known language has been dropped.

He said discovery requests must focus on the relevancy of the requested information, and whether the request is proportional to the needs of the case.

Citing the rules' advisory committee note, Campbell emphasized that the parties and the court have a “collective responsibility” to consider proportionality.

New Language: Vague?

Not everyone in the field has warmed to the new burden for showing proportionality.

Ronald J. Hedges, senior counsel at Dentons, told Bloomberg BNA Sept. 19 that the “collective responsibility” language is vague.

“If there is no allocation of burden for showing discovery is proportional, and the committee note refers to a ‘collective responsibility,' then maybe the burden should fall on the judge, as opposed to both parties,” Hedges said.

Hedges pointed to Federal Rule of Civil Procedure 1, which places the burden of moving court proceedings along in a just, speedy and inexpensive manner on the courts first, followed by the parties.

New Rule Applied

Plaintiffs in a product liability multidistrict litigation that involves the malfunction of inferior vena cava (IVC) filter implants requested communications between defendant C. R. Bard's foreign entities that sell the filters abroad and foreign regulatory bodies.

The court said that it appeared that most of Bard's regulatory communications—including those with foreign regulators—were generated domestically within the United States and are subject to discovery. However, according to the opinion, some foreign Bard entities do communicate with foreign regulators on their own.

But for the purpose of discovery, the court found those foreign communications were minimally relevant.

“First, there are no Plaintiffs in this MDL from foreign countries…. All plaintiffs received their Bard filters and allegedly were injured in the United States,” the court said. “Second, Plaintiffs seek communications with foreign regulators for a narrow purpose—to determine if any of those communications have been inconsistent with Defendants’ communications with American regulators.”

The court said that the “mere conjecture” that foreign communications could be inconsistent with communications with American regulatory made the discovery only potentially relevant.

The court also analyzed Bard's argument that the discovery was not proportional to the needs of the case because the discovery's burden outweighed its likely benefit.

To comply with the requests, Bard said it would have to identify applicable custodians from foreign entities for 13 years, collect the custodians' ESI and then search for foreign communications.

The court determined that requiring the ESI search from foreign entities for foreign communications wasn't proportional to the needs of the case, given the extensive discovery already taking place to capture communications with American regulator.

Lopez McHugh LLP represented the plaintiffs.

McGrath North Law Firm represented Bard.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com, Carol Eoannou at ceoannou@bna.com

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