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.
via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.
Corporate Counsel reported about a very important and significant change that might occur next year. Here are the highlights of the proposed amendments (starting on Page 91 of 322).
The e-discovery rules may change once again by next year. The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure. The Standing Committee will consider approving or rejecting the proposal in early June.
The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.
Rule 26’s proposed amendments are as follows:
Rules 30’s and 31’s proposed amendments are as follows:
- The number of depositions (oral and written) would be reduced from 10 to 5.
- The limit of an oral deposition is reduced to 6 hours.
- The number of written interrogatories would change from 25 to 15.
- The number of requests will be 25, except for requests relating to the genuineness of documents.
- There will be a presumptive limit on the number of Requests for Admissions a party may serve.
- A court order or a stipulation by the parties may increase the limits on any numerical discovery.
Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:
- The objections to document requests must be stated with specificity. This requirement has already been applied to interrogatory responses under Rule 33.
- When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
- A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.
Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:
- A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation. The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
- The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures. These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
- The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.
via On the Cusp of Major Changes to E-Discovery Rules.
Electronic discovery and electronic stored information are very important topics for everyone – employes, law firms, lawsuits, etc. The Sedona Conference should be the first step you take when trying to get a better handle in the area of electronic discovery and electronic stored information.
I bring to your attention the website that lists all of the Sedona Conference’s publications.
Recently, the Sedona Conferenced uploaded its post-comments publication in the area of proportionality of costs. This is an important publication because the proportionality of costs will influence who pays for the costs of discovery and what is a reasonable request. In other words, defining what is an undue burden and expense.
Publications | The Sedona Conference®.