For the second time within a month, an MDL court has rejected wide-ranging and potentially abusive discovery on the basis that the requests were out of proportion to the needs of the case. This is a welcome development. We have written multiple times about the 2015 amendments to the Federal Rules of Civil Procedure, including the amendments elevating proportionality to a marquee spot in Rule 26(b) and placing the “reasonably calculated to lead to discovery of admissible evidence” standard on the ashbin of history (at least in federal court). We have lamented (particularly here) that multiple district courts continue to apply that now-obsolete standard, relying on case authority that predates the amended Rule 26(b) by nearly 30 years.
We particularly appreciated the recent order in the Bard IVC Filter MDL, where the MDL judge also happens to chair the Advisory Committee on the Federal Rules. That court thus took the opportunity to remind his colleagues about the applicable rules and also to emphasize that discovery requests must be proportional to their burden, even when there are hundreds or thousands of plaintiffs. See In re Bard IVC Filters Products Liability Litigation, ___ F.R.D. ___, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016).
Last week, the district judge in the Benicar MDL demonstrated that he too knows the rules. In that proceeding, the plaintiffs moved to compel the depositions of employees of the defendant drug manufacturer’s European affiliate and to compel production of documents from Europe. See In re Benicar (Olmesartan) Prods. Liab. Litig., No. 15-2606, 2016 U.S. Dist. LEXIS 137839, at **196-97 (D.N.J. October 4, 2016). The court denied both motions, and before the court explained why, it observed that “it is helpful to summarize the discovery to date.” Id. at *198.
Calling a summary of completed discovery “helpful” turns out to be a vast understatement. In fact, this district court had invested a tremendous amount of time in planning discovery in this MDL, and it gave the plaintiffs abundant leeway. The court permitted discovery of electronically stored information from both the U.S. and Japan from “extensive custodial files” with “a long list of English and Japanese search terms”; the plaintiffs took nearly 40 company depositions in just the first phase of discovery; and the defendant had already produced 64 million pages of documents. Id. at **198-99. The court had permitted all this after “several oral arguments and discovery conference.” Id.
In other words, this district placed a priority on managing discovery at the front end with intense involvement of the parties. Sure, it would be burdensome—discovery always is when you’re facing 1,800 plaintiffs. But the parameters were set through a contested and deliberative process, and the parties went on their way knowing what to expect.
Until the plaintiffs asked for more. Denying the depositions of employees of the defendants’ European affiliate seems non-controversial. The Federal Rules clearly do not allow a party to compel a non-party to appear for a deposition in the United States with a deposition notice. Id. at *205. There are, however, two interesting notes. First, the court rejected the plaintiffs’ argument that the two proposed deponents were within the defendants’ “control.” People are not documents, and “control” is not the test. Id. at **208-211.
Second, and more importantly, this is where proportionality became the lynchpin of the court’s order. Even if the plaintiffs were properly to pursue the European depositions under the Hague Convention, the court was still not inclined to allow the depositions because the plaintiffs had not shown that the depositions were needed:
To date plaintiffs’ discovery directed to defendants has been extensive, lengthy and costly. Defendants have produced tens of millions of documents and thus far plaintiffs have taken thirty-eight (38) . . . fact depositions. Give the breadth of plaintiffs’ discovery the Court is disinclined to authorize more depositions unless the new testimony is likely to be materially important and non-cumulative. Stated differently, the requested depositions must be “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). . . . [T]he Court finds that in this instance the proportionality analysis weighs in defendants’ favor.
Id. at *212 (emphasis added). There you have it. Proportionality takes center stage, complete with a citation to the amended rule. Significantly, the plaintiffs argued that the proposed European deponents knew information on health and regulatory issues in various regions. This sounds to us like an argument that their depositions were reasonably calculated to lead to the discovery of admissible evidence.
The district court’s rebuke again focused on reason and proportionality:
If the Court permitted depositions to be taken to answer every conceivable question litigants raise, and fill every “gap” a party raises, discovery would never end. Moreover, the Court would be abdicating its role to efficiently manage the litigation. See Fed. R. Civ. P. 26(b)(1) Advisory Committee Note to 2015 Amendment. (“The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”).
Id. at *2015. Another citation to the 2015 Amendment, along with a quote on proportionality from the Advisory Committee’s notes. Having received 64 million pages and taken nearly 40 depositions, the plaintiffs had not shown that they were seeking “materially relevant non-cumulative information” that was “not otherwise available.” Id. at **215-16.
Which brings us to the plaintiffs’ requests for European documents. Here, “control” is the test, and “clearly yes[,] Defendants are required to produce documents within their control,” even if the documents are in Europe. Id. at **216-17. But proportionality was again the plaintiffs’ undoing. Now, we do not necessarily agree that proportionality was the only reason for denying the motion to compel European documents. If, for example, the plaintiffs were all or mostly from the U.S. and were treated in the U.S., experienced their alleged injuries in the U.S., etc., it is not obvious to us how documents from Europe would be relevant to any claim or defense in the first place. We also note that the defendants did not contest that they had “control” over documents in Europe, but the devil would be in the details, especially in light of the evolving and currently unclear European rules governing the cross-border transfer of data.
But proportionality was enough for this district court to deny the motion, and we agree. As the court observed,
[O]n the whole, the Court finds that plaintiffs’ document request are overbroad and far-reaching. . . . [¶] . . . Instead of general and overbroad requests, . . . plaintiffs’ requests must be specific, focused and narrow. In light of the tremendous efforts already devoted to this MDL, and the fact that fact discovery regarding causation issues is virtually complete, plaintiffs must specifically identify what they want rather than making omnibus requests.
Id. at *219. If you skipped the block quote, go back and read it, because the key to the entire order is hidden in there: “In light of the tremendous efforts already devoted to this MDL . . . .” Enough is enough. Defendants from time immemorial have argued that discovery is overly broad and unnecessarily repetitive to what they have already completed. That is what the defendants argued here. The court did not draw its all-important summary of “discovery to date” out of thin air. We are wagering that the defendants briefed it, probably with an attorney declaration laying it all out.
Proportionality made a difference because it gave this factual background a legal referent—a pillar of support, a hook on which to hang its hat. You can choose your own analogy. The point is that elevating proportionality makes these kinds of arguments more legally meaningful and significantly more compelling. Put another way, when judges have invested heavily in discovery the way this judge did and feel enough is enough, the rules now more explicitly back them up. Indeed, this judge may have been justified in cutting off discovery based on proportionality even earlier.
It may take a little while longer for judges fully to see the light, but we like what we have seen lately. With this order and the Bard IVC Filter order (which also involved foreign sources), discovery from foreign sources appears to be a good place for defendants to make vigorous proportionality arguments.