READ THE ORDER:
EARLY BIRD CATCHES THE WORM
Judge ratifies a bold e-discovery gamble by defense to use predictive coding despite objections.
Judge Robert Miller Jr., ofthe U.S. Dis- trict Court for the Northern District
of Indiana, in a feisty multi-district litigation over hip implant products, authorized predictive coding by the defendant — despite the fact that the defense
ignored plaintiff directives to not begin
document production before the cases
were centralized (In Re: Biomet M2a
Magnum Hip Implant Products Liability Litigation (MDL 2391)).
According to the order, Biomet had
produced 2.5 million documents to
plaintiffs, whose steering committee
argued that the results should be close
to 10 million. Biomet used Recommind’s Axelerate software and eight
contract lawyers; its e-discovery costs
were about $1.07 million and were
expected to total up to $3.25 million.
It was a good bet. Citing proportionality, Miller ruled that the defendants
did not have to go back to square one.
“Even in light of the needs of the hundreds of plaintiffs in this case, the very
large amount in controversy, the parties’ resources, the importance of the
issues at stake, and the importance of
this discovery in resolving the issues,
I can’t find that the likely benefits of
the discovery proposed by the Steering Committee equals or outweighs its
additional burden on, and additional
expense, to Biomet,” Miller stated.
Miller said he assumed that Biomet
would be open to discussing additional
“reasonably-targeted search terms”
and production of non-privileged documents within the sample, but Miller
cautioned that any reprocessing would
be at the plaintiffs’ expense. — M.B.
especially if those projects “have signif-
icant upfront costs” and positive returns
are on the far horizon. “Partnership is a
business model with a serious inherent
weakness,” declared Katz. At risk is not
a company’s money, but the partners’
money, he observed. “There are strong
incentives to under-invest in training,
software, and marketing [and] a strong
incentive to maximize in the present
But if they expand the dimensions of
competition, “law becomes law + tech
+ design + delivery,” he argued, not-
ing that the law part of the equation is
the substance — the rest are process.
While many firms brag about their
processes as differentiators, firms
aren’t comparable to manufacturing,
Fortune 500 logistic centers, or data
driven emergency rooms, he said.
Partnership is a business model with a serious inherent
weakness. At risk is not a company’s money, but the partners’.
and trade away the future,” said Katz.
Complicating the equation, once
you get above the 147th Am Law firm,
“are there really significant differences
in the quality of lawyering?” he asked.
Large firms “are primarily competing
on one dimension — legal expertise.”
Katz addressed “historic barriers to
real innovation,” reiterating the loud
mantra that GCs are getting increas-
ingly sophisticated about outside coun-
sel deliverables and fees, a position
fueled by the 2008 financial crisis when
they began to be pressured to cut legal
spending. The recession brought legal
in line with other “C” level officers, he
said. GCs have become their company’s
“legal supply chain manager,” compar-
ing the situation to buying a bookshelf
at IKEA — you can pay IKEA to set it up
for you, or you can do it yourself and
contend with the three left-over pegs.