Drama stirred in the burgeoning e-discovery world on March 15,
2012, when Magistrate Judge Andrew Peck denied Plaintiffs'
request that he recuse himself from Da Silva Moore v. Publicis
Groupe, No. 11-CV-1279 (ALC) (AJP) (S.D. N.Y. June 15,
2012).
Plaintiffs moved for recusal in the aftermath of Judge
Peck's February 24, 2012 order, allowing the use of predictive
coding and adopting Defendant-MSL's protocol for its
use. This is the latest development in the ongoing saga of
this case, the first to judicially-endorse the use of predictive
coding in electronic discovery. The Defendants proposed using
predictive coding to wade through the approximately 3 million
electronic documents involved in the discovery.
Plaintiffs claim that recusal is warranted because Judge
Peck's "advocacy of predictive coding" renders him
biased. Specifically, Plaintiffs pointed to an article Judge
Peck wrote for Law Technology News, "Search, Forward," an
article Judge Peck himself called a "sign of judicial approval
of predictive coding" for appropriate cases. At the first
conference with the parties, Judge Peck said to the defendants, who
were pushing the use of predictive coding: "You must
have thought you died and went to Heaven when this case was
referred to me." Judge Peck spoke publicly in support of
predictive coding as a panelist for a LegalTech conference and at
several e-discovery CLEs. Plaintiffs' also alleged
improper ex-parte contact with one of the co-panelists at
LegalTech, and a partner at the firm representing Defendants, Ralph
Losey.
Plaintiffs filed their motion for recusal on April 13, 2012,
after informally requesting Judge Peck recuse himself on March 28,
shortly after Judge Peck issued the Court's formal opinion
adopting MSL's Electronically Stored Information
("ESI") protocol on February 24. 2012 WL 607412 (S.D.
N.Y. Feb. 24, 2012) (Peck, M.J.) adopted by 2012 WL
1446534 (S.D. N.Y. Apr. 26, 2012).
Judge Peck denied the motion for recusal, finding the motion
untimely and meritless. The motion was held untimely because
Judge Peck had informed both parties about his "Search,
Forward" article, LegalTech speaking engagement, and his
acquaintance with Losey months before the plaintiffs moved for
recusal. He noted that Plaintiffs waited to seek his recusal
until after he adopted MSL's predictive coding protocol, citing
agreement with a Second Circuit opinion, which held that such
untimely recusal motions may be improperly used as a fall-back
position to an unfavorable ruling. See,
Weisshaus v. Fagan, 456 F. App'x 32, 34 (2d Cir.
2012).
Additionally, Judge Peck held the recusal motion was meritless
because the parties were already discussing the use of predictive
coding before the case was referred to him on November 28,
2011. Plaintiffs had been open to using predictive coding from
the beginning, but disagreed with Defendants about the specific
protocol. Judge Peck found the Plaintiff's allegations
that he had taken "personal offense" to Plaintiffs'
filing of objections to his rulings, had "chastised and yelled
at Plaintiffs' counsel", and had "intimidated
Plaintiffs for disagreeing with rulings" to have been taken
out of context and to be insufficient to overcome a judge's
presumption of impartiality.
Importantly, the Plaintiffs "never accused Judge Peck of
actual bias or sought to impugn Judge Peck's integrity"
but sought his recusal only on the basis that the facts, taken
together, "create an appearance of
partiality." Apparently finding that a "reasonable
person knowing and understanding all of the relevant facts"
would not find such an appearance of partiality (United States
v. Bayless, 201 F.3d 116, 126–27 (2d Cir.),
cert. denied, 529 U.S. 1061 (2000)), Judge Peck denied
Plaintiffs' motion for recusal.
No doubt the legal community will continue to keep a close watch
as the drama of Da Silva Moore continues.
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