In this product liability case, the issue is when does a defendant meet its discovery obligations. In other words, does defendant satisfy its duty by using a keyword search.
In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits. Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents. The case is as follows.
Defendant (Biomet) relied on keyword searching in order to reduce the volume of information. The documents to be searched were reduced from 19.5 million to 2.5 million. Afterwards, Biomet used predictive coding. Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.
Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding. Plaintiffs wanted to be part of the process and give input as to the predictive coding language. The court disagreed.
In explaining its decision, the court relied on proportionality. The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).” Further, 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.”
The court agreed that predictive coding would identify additional relevant documents. However, the benefits would not outweigh the burdens.