One of the key changes to the Federal Rules of Civil Procedure that went into effect over a year ago was the updated definition of the scope of permissible discovery under Rule 26(b)(1). While there have been a number of court decisions that have interpreted this new language, some practitioners—and courts—still continue to cite to the old version of the Rule. In a recent decision, Judge David G. Campbell of the U.S. District Court of Arizona, who was the chair of the Advisory Committee on Civil Rules during the drafting and enactment process for the amended Rules, analyzed and applied the new version of Rule 26(b)(1) in finding requested e-discovery from a party’s non-U.S. subsidiaries to be out of scope. He also used the decision as an opportunity to remind the bench and bar that the Rule changed on Dec. 1, 2015 and that they should not rely on the old version of the Rule.
In In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562 (D. Ariz. Sept. 16, 2016), a products liability multidistrict litigation regarding allegedly malfunctioning inferior vena cava (IVC) Filter medical devices, the plaintiffs and the defendants, particularly defendant medical device manufacturing company C.R. Bard, disagreed over the discoverability of electronically stored information (ESI) from Bard’s subsidiaries or divisions located overseas. Specifically, the plaintiffs sought communications related to the Bard IVC Filters between non-U.S. regulators and Bard’s non-U.S. entities selling these medical devices abroad.
