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.”

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