In its April 18, 2013 order in In re: Biomet M2a Hip Implant Products Liability Litigation, the US District Court for the Northern District of Indiana held that defendant Biomet's procedure for identifying relevant electronically stored information (ESI) satisfied its discovery obligations under the FRCP even though Biomet began producing documents before the Judicial Panel on Multidistrict Litigation (JPML) decided whether to centralize these cases.

Biomet used a two-step process for reviewing ESI. It began with keyword culling, eliminating 17 million documents that did not contain certain words. Then, Biomet employed technology-assisted review (TAR), or predictive coding, to identify which of the remaining 2.5 million documents to produce. Biomet is spending millions of dollars on this process.

The plaintiffs claimed that Biomet needed to effectively start over, with both defendants and plaintiffs participating in predictive coding of the full 19.5 million documents. The plaintiffs rejected as insufficient Biomet's offer to modify the existing process.

The plaintiffs further argued that the cost of starting over was Biomet's responsibility because some of the plaintiffs' attorneys had warned Biomet not to start reviewing ESI until the JPML ordered centralization.

The court held that Biomet's review procedure fully complied with the requirements of FRCP 26(b) and 34(b)(2). It rejected as disproportionate under FRCP 26(b)(2)(C) the plaintiffs' request that Biomet start over. The court found the substantial cost of doing so outweighed the likely benefit of identifying "a comparatively modest number" of additional responsive documents.

The court also rejected the plaintiffs' argument that Biomet was estopped from arguing proportionality because Biomet began document review pre-centralization despite warnings from some plaintiffs. Until the JPML orders centralization, defendants must meet their discovery obligations in the pending cases. Complying with court orders and procedures should not forfeit FRCP 26(b)(2)(C)'s proportionality requirement.

The order in In re: Biomet M2a Magnum Hip Implant Products Liability Litigation teaches that the parties to a multidistrict litigation should devise an e-discovery plan even if they think the cases may be centralized by the JPML. The possibility of centralization does not eliminate the discovery obligations and protections that otherwise apply.