In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation, MDL 2391 (2013)

Indiana Federal Court’s Order Approves Defendant’s Use of Predictive Coding After Keyword Searching

Judge Robert Miller Jr., of the United States District Court for the Northern District of Indiana, issued an order on April 18, 2013 authorizing predictive coding by the defendant despite the fact that the defendant proceeded with e-discovery before the cases were centralized and ignoring plaintiff directives to not begin document production.

FACTS – 2.5 million documents were produced. Defendant used a combination of electronic search functions to identify relevant documents. First defendant used keyword culling to reduce the universe of documents, then running statistical sampling tests. After reducing the universe of documents, defendant “employed technology-assisted review, or predictive coding, to identify the relevant documents to be produced from the 2.5 million that emerged from the keyword and deduplication processes … [Defendant] used a predictive coding service called Axelerate and eight contract attorneys to review a sampling of the 2.5 million documents. After one round of ‘find more like this’ interaction between the attorneys and the software, the contract attorneys (together with other software recommended by Biomet’s e- discovery vendor) reviewed documents for relevancy, confidentiality, and privilege.” Plaintiffs contested the method, alleging that the production should have run close to 10 million documents.  Defendant contests that “although it employed predictive coding, Biomet began with the less accurate keyword search.” Plaintiffs requests defendant “to go back to its 19.5 million documents and employ predictive coding, with plaintiffs and defendants jointly entering the ‘find more like this’ commands.”  Defendant objected and offered to produce “the rest of the non-privileged documents from the post-keyword 2.5 million” but the plaintiffs would not agree.

The judge found:

“The issue before me today isn’t whether predictive coding is a better way of doing things than keyword searching prior to predictive coding. I must decide whether…[defendant’s] procedure satisfies its discovery obligations and, if so, whether it must also do what…[Plaintiffs] seeks. What…[Defendant] has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2). I don’t see anything inconsistent with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information…[The plaintiff’s request to] institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C)….it would cost…[defendant] a million, or millions, of dollars to test…[plaintiffs] theory that predictive coding would produce a significantly greater number of relevant documents.”

Every party set forth procedures or protocols that should be used for identification, retrieval, and production.


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