District Court Upholds Use of Multimodal Assisted Review in Biomet Case
Discovery Digest – Q3 2013
For litigants worried that they must conduct a flawless eDiscovery review regardless of cost, the recent ruling in In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391) should offer some relief. In a recent ruling in the ongoing litigation, U.S. Judge Robert L. Miller, Jr. of the Northern District of Indiana upheld the defendant’s use of keyword searching and de-duplication along with predictive coding. Plaintiffs had argued that Biomet launched its eDiscovery processes before the lawsuits were centralized, and that the defendant should start its eDiscovery all over again relying strictly on predictive coding.
The judge cited proportionality in his April 18 ruling in favor of Biomet. “It might well be that predictive coding, instead of a keyword search, at Stage Two of the process would unearth additional relevant documents. But it would cost Biomet a million, or millions, of dollars to test the Steering Committee’s theory that predictive coding would produce a significantly greater number of relevant documents,” Judge Miller wrote. “Even in light of the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues, I can’t find that the likely benefits of the discovery proposed by the Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet. Fed. R. Civ. P. 26(b)(2)(C).”
A seven-figure do-over?
In the summer of 2012 before the claims were centralized, Biomet began producing documents in the cases, which involve allegations about allegedly defective metal-on-metal hip implants. Some of the plaintiffs’ attorneys argued that Biomet should not begin producing documents before the Judicial Panel on Multidistrict Litigation decided whether to centralize the cases, in a manner that Judge Miller characterized as “occasionally in forceful terms.” However, Biomet decided to forge ahead with identifying and producing documents.
By the time of Judge Miller’s April ruling, Biomet had produced 2.5 million documents to the plaintiffs, a number that the plaintiffs argued should be closer to 10 million.
Starting with a universe of 19.5 million documents and attachments, Biomet identified relevant documents through a combination of electronic search functions, starting first with culling via keyword searches. The keyword approach minimized the number of documents and attachments to 3.9 million, which equaled about 1.5 terabytes of data. De-duping dropped the number of documents and attachments down to 2.5 million. Statistical sampling tests of a random sample found, with a 99 percent confidence rate, that between 0.55 and 1.33 percent of unselected documents would be responsive. The statistical sampling also found that between 1.37 and 2.47 percent of the original pool of 19.5 million documents were responsive, with the same 99 percent confidence rate. That compares to the 16 percent of the original collection that Biomet’s keyword and de-duping methods identified.
Using technology-assisted review, or predictive coding, Biomet then identified the relevant documents to be produced from the 2.5 million winnowed down through keyword searches and de-duping. Biomet used a predictive coding service and eight contract attorneys to review a sample of those 2.5 million documents. After a round of “find more like this,” the attorneys reviewed documents for relevancy, confidentiality and privilege.
The defendant asked the Plaintiffs’ Steering Committee for additional search terms, offering to produce all the non-privileged documents out of the 2.5 million, so that the Steering Committee could verify that Biomet was producing relevant documents. The Steering Committee rejected both offers, claiming that they would not assure proper documentation.
At this point of the review, Biomet had spent $1.07 million on eDiscovery and anticipated spending a total of $2 million to $3.25 million on eDiscovery before the case was finished.
In arguments to the Court, the Steering Committee claimed Biomet’s initial use of keywords “tainted” the process. The committee also claimed that it couldn’t propose other search terms, since it was not familiar with Biomet’s terminology.
Instead, the Steering Committee asked the Court to toss out all the identification, review and production work Biomet had done to date and start all over again with the original 19.5 million document set. The plaintiffs wanted to use predictive coding on the document set, with both parties entering the “find more like this” commands.
Biomet objected to the Steering Committee’s arguments for a variety of reasons, including that beginning again would cost millions more than it had already spent. The plaintiffs responded that the defendant had taken that gamble when it launched document production after several plaintiffs’ counsel warned Biomet to wait until the cases were centralized.
In his ruling, Judge Miller said he wasn’t looking to determine whether predictive coding was more effective than conducting keyword searching before predictive coding. He focused on process instead. “I must decide whether Biomet’s procedure satisfies its discovery obligations and, if so, whether it must also do what the Steering Committee seeks. What Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2)…In contrast, the Steering Committee’s request that Biomet go back to Square One (more accurately Square Two, since Biomet first collected the 19.5 million documents) and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C),” the judge ruled.
The judge also wrote he didn’t see Biomet’s approach as inconsistent with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information. Principle 1.02 requires cooperation, he noted, “but I don’t read it as requiring counsel from both sides to sit in adjoining seats while rummaging through millions of files that haven’t been reviewed for confidentiality or privilege.”
Judge Miller also stressed that he expected Biomet to be willing to meet and confer on additional “reasonably-targeted” search terms and to produce non-privileged documents included in the sampling. If the Steering Committee wanted documents processed, reviewed and produced solely through predictive coding, it would have to bear the costs, he ruled.
For those involved in litigation, the Biomet ruling offers hope that more courts will focus on process rather than specific technologies and consider the proportionality of eDiscovery to balance reasonableness of efforts with the costs involved.
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