During the “discovery” phase of a case, the patients suing Biomet are allowed to request documents and depositions (interviews) from Biomet in order to “discover” evidence for their eventual trial. Unfortunately, the plaintiffs (patients suing Biomet) in the MDL faced a huge setback in this process early on in this litigation.
The Problem with the Biomet MDL Discovery
Typically, documents will be produced in a case only after they are requested. Especially when there is a lawsuit against a large corporation with tons of electronic documents, the parties to a case typically work together to come up with ways to efficiently search many millions of electronic documents for the information requested.
In the Biomet MDL, Biomet jumped the gun: they didn’t wait for any requests and they certainly did not work together with plaintiffs. Before the litigation began, they started searching their documents on their own, and used electronic search methods Biomet alone came up with. Unsurprisingly this resulted in many millions of highly relevant and important documents being hidden from the MDL plaintiffs.
Unfortunately, the MDL judge, in two separate orders, sided with Biomet and stated to the victims that they will need to make due with whatever meager documents Biomet already produced. In essence, Biomet took rules which were meant serve as a shield to protect parties against abusive discovery strategies and used those rules as a sword.
By jumping the gun and spending many millions of dollars before anyone requested documents, Biomet was able to argue to the court that it should not have to spend more money to uncover additional documents after the requests were made. Unfortunately, these orders derailed litigation in the MDL. Without access to the documents to prove their claims, the plaintiffs in the MDL were seriously hamstrung and lost almost all leverage in the case.
You can read the original copy of those orders below.