Court Declines to Compel Identification of Seed Set, Encourages Cooperation

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013)

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding.  (See summary here.)  In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification.  Despite this, the court noted Biomet’s “unexplained lack of cooperation” and urged Biomet to “re-think its refusal.”

The Steering Committee in this case “want[ed] Biomet to produce the discoverable documents used in the training of the ‘predictive coding’ algorithm” utilized to “winnow” down the number of potentially responsive documents from a broader collection.  The Steering Committee argued that the production was necessary for it to “intelligently propose more search terms, since it [didn’t] know what already ha[d] been included in the search.”  In response, Biomet stated “only that the discoverable documents used in the seed set already ha[d] been disclosed” but declined to further identify the seed set, arguing that “nothing in the law” required the production of the information sought.

Beginning its analysis, the court first acknowledged that a request for the production or identification of “the whole seed set … used for the algorithm’s initial training” reached “well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find.”  The court then considered the propriety of a request for only the “discoverable documents” – which Biomet indicated it had produced, but refused to identify.  “Given that production,” the court reasoned, “the Steering Committee [didn’t] seek the production of documents; it ha[d] all the documents it want[ed] to know about.”  Rather, “[t]he Steering Committee want[ed] Biomet to tell how it went about identifying and selecting the documents (not just the seed set) that it ha[d] produced.”  Stated differently, the court reasoned that because the discoverable documents used in the seed set had already been disclosed (but not identified), the Steering Committee actually wanted to know “not whether a document exists or where it is, but rather how Biomet used certain documents before disclosing them.”  The court concluded that “Rule 26(b)(1) doesn’t make such information disclosable.”

Further, while the court acknowledged the Steering Committee’s argument that Biomet was not “proceeding in the cooperative spirit endorsed by the Sedona Conference and the corresponding Seventh Circuit project,” it reasoned that neither “expands a federal district court’s powers” to provide the authority to compel “discovery of information not made discoverable by the Federal Rules.”  The court did indicate, however, that it was troubled by Biomet’s position:

Biomet suggests no way in which telling the Steering Committee which of the documents already produced were in the seed set would harm it.  Based on what I have been given in the parties’ memoranda, Biomet is right that it doesn’t have to identify the seed set, but the Steering Committee is right that Biomet’s cooperation falls below what the Sedona Conference endorses.  An unexplained lack of cooperation in discovery can lead a court to question why the uncooperative party is hiding something, and such questions can affect the exercise of discretion.

Accordingly, although it did not compel disclosure, the court urged Biomet to “re-think its refusal.”