In re Bard IVC Filters Products Liability Litigation, 317 F.R.D. 562

This is an order resolving a discovery dispute in MDL litigation over Bard IVC filters following a status conference and focused briefing.
Plaintiffs sought ESI from Bard’s foreign subsidiaries/divisions showing communications with foreign regulatory bodies about IVC filters (2003–present).
Bard explained its U.S. regulatory division compiles and supplies documentation to foreign affiliates and handles most regulator communications; some foreign affiliates, however, sometimes communicate independently with their regulators.
Plaintiffs argued foreign regulator communications might be inconsistent with Bard’s U.S. communications and therefore relevant.
Bard argued searching ESI from ~18 foreign entities over 13 years would be highly burdensome and duplicative because most relevant communications originate in the U.S. and are already being searched.
The court denied Plaintiffs’ request, applying the amended Rule 26(b)(1) emphasizing relevance plus proportionality.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Discoverability of foreign-entity ESI re: communications with foreign regulators	Seek all communications to find any inconsistencies with U.S. regulator communications	Burdensome; most responsive communications originate in U.S. and are captured by current discovery	Denied — not required to search foreign entities’ ESI
Proper relevance standard under amended Rule 26(b)(1)	Old "reasonably calculated" standard permits broad discovery	Amended Rule limits scope to information "relevant" to a claim or defense and proportional	Court applies amended Rule 26(b)(1), rejecting the broader "reasonably calculated" test
Whether foreign communications are likely to yield useful evidence	Could reveal inconsistencies material to plaintiffs’ claims	Only marginal relevance here: no foreign plaintiffs and only speculative inconsistency	Court finds marginal relevance, so low likely benefit
Proportionality: burden vs. benefit of foreign ESI searches	Importance justifies additional searches	Burden of collecting/searching ESI from many foreign entities over 13 years outweighs benefit	Denied on proportionality grounds — burden/expense outweigh likely benefit

Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625 (9th Cir.) (applied pre-2015 Rule 26 standard that discovery need only be "reasonably calculated" to lead to admissible evidence)
Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir.) (another Ninth Circuit decision applying the pre-2015 discovery scope)