Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to utilize only predictive coding, with plaintiffs’ input.  The court concluded that Biomet’s efforts complied with its discovery obligations under the civil rules.

Despite being told “(occasionally in forceful terms)” by some plaintiffs’ counsel “not to begin document production until the Judicial Panel on Multidistrict Litigation decided whether to centralize,” Biomet, “neither sold on centralization nor free of judicial exhortations in other cases against it, started the process of identifying and producing documents” (in cases eventually centralized in the summer of 2012).  Biomet first utilized “keyword culling” to reduce its universe of documents and attachments from 19.5 million to 3.9 million and, after removing duplicates, was left with 2.5 million documents which were then subjected to predictive coding.  “To date, Biomet’s e-discovery costs are about $1.07 million and will total between $2 million and $3.25 million.”

Biomet invited the Steering Committee to suggest more search terms and “offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million so the Steering Committee can verify that Biomet is producing the relevant documents.”  The Steering Committee declined.  Instead, “[t]he Steering Committee [argued that] Biomet’s initial use of the keyword approach ha[d] tainted the process” and sought to require Biomet to redo its discovery, utilizing only predictive coding.  The Steering Committee also wanted plaintiffs to be involved in “entering the ‘find more like this’ commands” in the predictive coding process.  In response to Biomet’s objections based on the significant cost, the Steering Committee argued that “Biomet gambled when it spent millions on document production that several of plaintiffs’ counsel warned Biomet not to undertake until the Panel had centralized the cases.”

As stated by the court, the issue before it was not “whether predictive coding is a better way of doing things than keyword searching prior to predictive coding,” but rather, “whether Biomet’s procedure satisfies its discovery obligations, and, if so, whether it must also do what the Steering Committee seeks.”  The court concluded that “[w]hat Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2).”  In so deciding, the court reasoned that it saw no inconsistency with the Seventh Circuit’s Principles Relating to the Discovery of Electronically Stored Information, and more specifically noted that while Principle 1.02 requires cooperation, it does not require “counsel from both sides to sit in adjoining seats while rummaging through millions of files that haven’t been reviewed for confidentiality or privilege.”  Nor, the court concluded, did Biomet’s approach run afoul of any of the principles set forth by the many Sedona Conference materials cited by both sides.  In contrast, the court reasoned that the Steering Committee’s proposal to essentially start again (utilizing the initial set of 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C)” and further noted that starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

Addressing proportionality more specifically, the court acknowledged that the use of predictive coding from the beginning may have identified additional relevant documents, but concluded that it could not find that the likely benefits of starting again would outweigh the burden, considering the factors identified in Rule 26(b)(2)(C).  Additionally, the court rejected the Steering Committee’s assertion that Biomet was precluded from relying on proportionality arguments because it began discovery “in disregard” of warnings from counsel for plaintiffs in individual cases.

Concluding its opinion, the court indicated its assumption that Biomet remained open to conferring on additional search terms and producing the “non-privileged documents included in the statistical sample,” but instructed that if the Steering Committee wished for Biomet to redo discovery in its preferred manner, it would have to bear the expense.

Copyright © 2022, K&L Gates LLP. All Rights Reserved.