In re Biomet, 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013).
In this behemoth multidistrict litigation, the defendants used key word search to cull 19.5 million documents prior to leveraging predictive coding. Pointing to commentary questioning the efficacy of key word search, the Plaintiffs’ Steering Committee alleged that the defendants “tainted the [search] process” by sharply reducing the data universe to 2.5 million documents primarily with key words. Instead, the plaintiffs argued that the defendants should go back to square one with predictive coding. The defendants countered by evoking the proportionality principle at Fed.R.Civ.P. 26(b)(2)(C), stating that the benefits of starting over with predictive coding would be outweighed by the burden of doing so. The court framed the relative positions of the parties succinctly: “It might be well that predictive coding, instead of a keyword search… 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.” The court found that the defendants were allowed to carry on with their chosen search approach and encouraged both parties to continue to confer over future discovery.