Northern District of Indiana Approves Keyword Culling Prior to Predictive Coding; Can Skynet, LLP Be Far Behind?

Recently, Judge Miller in the Northern District of Indiana approved the use of predictive coding in a large, multidistrict litigation concerning certain hip implants manufactured by Biomet.

As the order notes, Biomet started with a universe of about 19.5 million documents and used keyword culling to trim that down to 3.9 million documents (about 1.5 terabytes of data). Taking out the duplicates brought that down to 2.5 million. Using statistical sampling, Biomet had a 99% confidence rate that .55% to 1.33% of the unselected documents would be responsive, and that 1.37% to 2.47% of the original 19.5 million were responsive.

Biomet then applied predictive coding to the remaining 2.5 million documents. The court described predictive coding this way:

Predictive coding has found many uses on the Internet. Under predictive coding, the software “learns” a user’s preferences or goals; as it learns, the software identifies with greater accuracy just which items the user wants, whether it be a song, a product, or a search topic. Biomet used a predictive coding service called Axelerate and eight contract attorneys to review a sampling of the 2.5 million documents. After one round of “find more like this” interaction between the attorneys and the software, the contract attorneys (together with other software recommended by Biomet’s e-discovery vendor) reviewed documents for relevancy, confidentiality, and privilege.

As of the date of the order, Biomet had incurred $1.07 million in e-discovery costs and was expected to incur up to $3.25 million. (Vendors:  “Cha-ching!”)

Biomet asked the Plaintiffs’ Steering Committee to suggest additional search terms, but they declined because they felt that the initial keyword culling used tainted the entire process. Instead, the Committee wanted Biomet to start over and use predictive coding on the original 19.5 million document universe. Biomet objected, claiming that would result in millions more in e-discovery costs.

Judge Miller approved Biomet’s e-discovery procedures, stating:

The issue before me today isn’t whether predictive coding is a better way of doing things than keyword searching prior to predictive coding. I must decide whether Biomet’s procedure satisfies its discovery obligations and, if so, whether it must also do what the Steering Committee seeks. What Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2). I don’t see anything inconsistent with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information. Principle 1.02 requires cooperation, but I don’t read it as requiring counsel from both sides to sit in adjoining seats while rummaging through millions of files that haven’t been reviewed for confidentiality or privilege.


It might well be that predictive coding, instead of a keyword search, at Stage Two of the process 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. 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.

A couple of takeaways:  First, keyword culling prior to the application of predictive coding is an acceptable e-discovery practice in Indiana federal courts.

Second, and more ominous, lawyers are actively and willingly helping machines learn how to replace them. I watched a lot of sci-fi movies as a younger man, and there’s only one way for this movie to end, and it’s not good. One day, you’re at your desk reviewing documents, and the next thing you know, there’s a flash of brilliant white li…….

Well, at least there's no more document review...

Well, at least there’s no more document review…

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Groth to Present at ‘Expert Witness’ Panel Discussion

Bose McKinney & Evans LLP partner Steven Groth will participate in a litigation panel discussion entitled, “How to Get the Most Out of Your Expert Witness.” The discussion is part of an event presented by Thomson Reuters Expert Witness Services.

The panel discussion, which includes lunch, will take place Tuesday, May 7, at 12 p.m. at McCormick & Schmick’s located at 110 N. Illinois Street in Indianapolis. To attend, registration must be completed by April 30 by e-mailing

During the luncheon, panelists will discuss the following:

  • What to look for in an expert witness;
  • Engaging experts and dealing with obstacles; and
  • Best practices for working with experts.

Groth is a partner in the Litigation Group of Bose McKinney & Evans and concentrates his practice in transportation, business and personal injury litigation. He defends clients in the trucking industry against wrongful death and serious injury claims, as well as represents businesses in connection with contract disputes, construction accidents and construction defect claims. Groth has significant jury trial experience and has briefed and argued successful appeals before the U.S. Court of Appeals for the Seventh Circuit and the Indiana Court of Appeals. He has been named to Indiana Super Lawyers® for his work in civil litigation defense since 2011.

Thomson Reuters Expert Witness Services is the leading authority in expert witness placement and intelligence reporting services. The company helps litigators find the right expert witnesses for their cases, provides resources for researching expert witnesses’ backgrounds, and helps expert witnesses grow their practices by connecting them with engagements and professional development opportunities.

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Vink to Speak at IndyBar Seminar on Litigation Skills

Bose McKinney & Evans LLP is pleased to announce partner Paul Vink will serve as a speaker for the Indianapolis Bar Association’s new litigation skills series, “Direct and Cross Exam,” which takes place Wednesday, April 10, at 12 p.m. EST.

Vink’s presentation will include how to elicit information important to your case and the art of examining witnesses in various trial settings. Lunch will be included and one general continuing legal education credit can be earned.

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Chair of the Construction Law Group quoted in article on public bidding

Partner Sam Laurin is quoted in the March 27, 2013 Indiana Lawyer article “Renovation project raises questions on public bidding” written by Marilyn Odendahl. Laurin is chair of the Bose McKinney & Evans Construction Law Group, as well as the law firm’s Litigation Group.

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SCOTUS Unanimously Rules that Class Action Plaintiffs Can’t Stipulate Their Way Out of Federal Court Jurisdiction

Plaintiffs’ lawyers will need to get more creative if they want to keep class actions in state court. Today, the Supreme Court of the United States ruled unanimously that class action plaintiffs can’t avoid the Class Action Fairness Act’s amount-in-controversy requirement by simply stipulating that the claims of the class are less than the minimum amount.

In Standard Fire Ins. Co. v. Knowles, the named plaintiff filed a class action alleging that the insurer unlawfully failed to include a general contractor fee with certain homeowner’s loss payments. The class was said to number in the thousands, but Knowles stated in his complaint that both he and the class “stipulate they will seek to recover total aggregate damages of less than five million dollars”–a clear attempt to avoid CAFA’s jurisdictional minimum of $5 million. The insurer removed the case to federal court despite the stipulation, and the district court found that the sum of all of the proposed class members’ claims exceeded $5 million. But because the plaintiff stipulated that the sum was less than $5 million, the district court ordered remand. The insurer appealed, the Eighth Circuit declined to hear the appeal, and the Supreme Court granted certiorari to resolve a circuit split.

Justice Breyer wrote the unanimous opinion, describing the issue as “whether the stipulation makes a critical difference” as to CAFA jurisdiction. The Court held it does not because a plaintiff cannot legally bind members of a class prior to class certification. So Knowles’ stipulation could only bind him–not the class. Thus, since the amount of the unnamed class members’ claims exceeded $5 million, removal under CAFA was appropriate.

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Patent Injunctions and Chief Judge Rader—Details Wanted

IP Law360 reports that Federal Circuit Chief Judge Randall Rader on Tuesday chastised the US Supreme Court for getting it wrong on when injunctions should issue against patent infringers. He reportedly said their 2006 decision in eBay Inc. and v. MercExchange, L.L.C. improperly applied the Patent Act on injunctions. I’ve always thought the Supreme Court got it exactly right and want to understand Judge Rader’s reasoning. His remarks have not been published as far as I can tell after searching, so if you know where they are, please tell me.

The criticism is intriguing because it takes courage to criticize the one court in the world that can, and often lately does, reverse your decisions. It’s also intriguing because the report just says the Supreme Court didn’t follow the Patent Act. No details beyond that.

The Act says courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” eBay reversed the Federal Circuit’s general rule that an injunction issued automatically upon a finding of patent infringement. The Supreme Court said that patent injunctions are just like any other injunctions issued by a federal court, and there are four factors to consider in each case.

The factors are familiar to lawyers who handle injunctions:  (1) is there irreparable injury; (2) are remedies at law [damages] adequate compensation; (3) is the injunction warranted after balancing the hardships between the parties; and (4) will it harm the public interest.

The Supreme Court said that issuing a patent infringement injunction is just another “act of equitable discretion” by a federal judge. That makes sense to me because the Patent Act commands it. Injunctions must be “in accordance with the principles of equity.”

If Judge Rader was accurately quoted, the only words left in the simple injunction provision that might make a difference are “as the court deems reasonable.” Do these words confine or trump the application of principles of equity? Are there other sections of the Patent Act that justify presuming that an injunction should issue once patent infringement is found? Given the high rate of appeals and reversals in patent infringement cases, it would be good to know more.

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Terminating a Tenured Professor at a Private University Requires Compliance with Contract

In Haegert v. University of Evansville, 977 N.E.2d 924 (Ind. 2012), the Supreme Court of Indiana discussed the legal hurdles that a private university had to leap before it could terminate the employment of a professor who was working for the school pursuant to a tenured contract.  Apparently, simply saying “Jetson, you’re fired!” may not have been enough.

The Court recognized that cases applying Title VII of the Civil Rights Act of 1964 or state-law equivalents were not relevant since an employment contract was in place that explicitly provided the terms, procedures, and policies for firing a tenured professor.  In this instance, the University was seeking to terminate the professor due to conduct that was characterized as harassment or sexual harassment.  The Court found that the employment contract, along with the Faculty Manual, clearly defined what constituted sexual harassment, and that the professor’s conduct fell within such definition.  By following the procedures for the investigation and firing, as outlined in the employment contract, the Court held that the university had afforded the professor adequate notice and process regarding the claims against him and his termination.

Posted in Appeals Attorneys, Appellate Court Indiana, Indiana, Indiana Courts | Tagged , , , , , , , , , , | 1 Comment

Participating in Court Conferences Does Not Constitute Appearing in Litigation

A homeowner sought appellate relief from the trial court’s order denying her motion for relief from a default judgment and entry of foreclosure.  In Seleme v. JPMorgan Chase Bank, the Court of Appeals affirmed the trial court’s decision finding that though the homeowner participated in telephone conferences, she never appeared in the foreclosure matter or requested a settlement conference pursuant to Indiana Code section 32-30-10.5-8.5(c).  Therefore, the Court of Appeal’s held that default judgment was properly rendered.

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Happy 2013 from the Bose Litigation Blog!

2012 was an amazing year for the Bose Litigation Blog, and we aim to do even better in 2013.  So, stay tuned for even more timely and useful information about litigation.

On behalf of everyone in the Bose Litigation Group, best wishes for a happy, healthy, and prosperous 2013!


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Web Operators and Developers Face Increased Scrutiny and Stiff Penalties Over Privacy Issues

“Ignorance of the law excuses no man: not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to refute him.” – John Selden

If your company is operating or developing software applications, including mobile applications, be warned.  Application developers face increased scrutiny, legal challenges and potentially stiff penalties for non-compliance with state privacy laws designed to protect online consumers.

In February 2012, California Attorney General Kamala D. Harris warned mobile application developers that her office would aggressively enforce California’s Online Privacy Protection Act.  If online services or website operators collect personal identifiable information from California residents, the Act requires the services to post their privacy policies conspicuously.

Think you don’t need to worry about California laws?  Think again.  The California Online Privacy Protection Act applies to any operator whose app is downloaded by a California consumer, regardless of the physical location of the operator’s business.

Read the entire article regarding penalties over privacy issues.

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