## Facts

- Hundreds of plaintiffs in an MDL alleged injuries from Biomet’s metal-on-metal M2a Magnum hip implant and proceeded through a Plaintiffs’ Steering Committee (PSC).
- In discovery, Biomet used technology-assisted review (TAR), also described as predictive coding, to identify potentially relevant electronically stored information (ESI) for production.
- As part of its predictive-coding workflow, Biomet used a “seed set,” meaning documents selected to train the predictive-coding system (including examples of what the system should and should not treat as responsive).
- The PSC asked Biomet to disclose how the seed set was assembled and, more specifically, to produce or identify the seed-set materials so the PSC could evaluate whether Biomet’s training choices and search terms left gaps.
- Biomet opposed the request, arguing that the Federal Rules did not require it to reveal the seed set and that a seed set could include nonresponsive, privileged, or work-product material.
- Biomet represented that any seed-set documents that were discoverable had already been produced in the ordinary course of production; what the PSC wanted was additional disclosure about which documents were used to train the TAR system.
- The PSC cited a Sedona Conference report as support for greater transparency and cooperation in predictive-coding discovery.

## Issues

1. Whether the court should compel the producing party, using predictive coding, to disclose or identify the seed set used to train the algorithm, where the producing party asserts it has already produced all discoverable seed-set documents.

## Decision

- The court denied the PSC’s motion to compel disclosure or identification of Biomet’s predictive-coding seed set.
- The court declined to require Biomet to provide a list, index, or other identification of which produced documents were used in the seed set.
- The court accepted Biomet’s representation that it had already produced the seed-set documents that were discoverable and refused to order additional disclosure that would reach irrelevant, privileged, or protected material.

## Legal Principles

- Discovery under Fed. R. Civ. P. 26 does not entitle a party to irrelevant materials or to privileged communications and protected attorney work product.
- A request to reveal the contents or composition of a TAR seed set can sweep in nonresponsive documents and protected attorney judgments about responsiveness, and courts may reject such requests when they exceed permissible discovery.
- When a producing party represents that all discoverable documents used in a seed set have been produced, the requesting party is effectively seeking process details (identification of which produced documents trained the system), not new discoverable documents; the Federal Rules do not automatically require that added disclosure.
- Nonbinding guidance (including Sedona Conference materials) may inform best practices, but it does not, by itself, create a duty to disclose seed-set materials or the internal mechanics of a party’s TAR training.
- Courts retain discretion under Rule 26 to limit discovery that is not justified by its likely benefit, including requests that add expense or exposure of protected material without a concrete showing that responsive documents are being withheld.

## Conclusion

The court refused to compel Biomet to disclose or identify the predictive-coding seed set used in its TAR process, reasoning that plaintiffs have no right to irrelevant, privileged, or work-product materials and that Biomet’s representation that all discoverable seed-set documents had been produced left the PSC seeking extra process information not required by the Federal Rules.


In re Biomet Products Liability Litigation, 2013 WL 6405156 (2013)