Federal Judges, Legal Ethics, S.D.N.Y., Technology

Plaintiffs Trying To Get Judge Peck Bounced from Landmark Predictive Coding Case

One of the parties in Da Silva Moore v. Publicis Group, the first federal case in which a judge approved protective coding, has requested that Judge Andrew Peck, who made the order, recuse himself. What is the basis for the recusal request?

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Over the last couple of months, we have written a few stories about Magistrate Judge Andrew Peck. Judge Peck generated headlines as the first federal judge to approve a litigation protocol for e-discovery that included predictive coding technology.

For a while, the story was pretty happy-clappy. It was a start of a new era. E-discovery — through predictive coding that had now arrived — would be cheaper, more efficient, and faster. Yay!

But, alas, all is not well in this legal technology paradise. One of the parties in Da Silva Moore v. Publicis Group, the case that started this whole saga, has requested that Judge Peck recuse himself.

They say his enthusiasm for predictive coding crosses the line into partiality…

The Law Technology News gives us the latest update:

In a nutshell, plaintiffs are asking Peck to remove himself from the case because the “cumulative effect” of his statements and conduct “in the aggregate” allegedly gives rise to an appearance of partiality for the defendants that warrants recusal under Title 28 U.S. Code Sec. 455(a). Section 455(a) states that any judge or magistrate of the U.S. shall disqualify himself in any proceeding in which his partiality might be reasonably questioned.

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I feel like we are in that Beatles song, where the chorus sounds all pleasant: “I have to admit it’s getting better.” Everything seems great until you hear the background vocals groaning, “It can’t get no worse.”

To be frank, I don’t think there’s much question as to whether or not Judge Peck has been an unabashed cheerleader for predictive coding. Much has been written about his championing of the technology, both on Above the Law and other legal news publications (some under Judge Peck’s own byline).

Here are some of the specific complaints that the plaintiffs have made:

Plaintiffs list numerous instances of Peck’s statements, writings, and conduct, starting with the judge’s remarks directed at defendants while in conference with both parties: “You must have thought you died and went to Heaven when this [case] was referred to me.” Plaintiffs also allege that Peck’s writing, such as the Oct. 1, 2011, story in LTN, “Search Forward,” favors defendants’ use of predictive coding. Plaintiffs also list Peck’s appearance on industry panels and at Continuing Legal Education events where he favored the use of predictive coding, also known as computer-assisted review, as evidence supporting the judge’s “partiality” for predictive coding. Lastly, plaintiffs objected to Peck’s alleged ex parte contacts with defendants counsel, Ralph Losey.

I was actually at the LegalTech discussion panel that included both Judge Peck and Ralph Losey. (I wrote a post about it.) I don’t believe they ever mentioned Da Silva, but it was clear they both were in favor of predictive coding. Whether that equates to bias or partiality is obviously is a different, tougher question.

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In one of his recent rulings in Da Silva, Judge Peck wrote, “Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review.”

That may be true for counsel. But it looks like being the guinea pig judge is an entirely different matter.

E-Discovery Dispute Yields Formal Recusal Request in ‘Da Silva Moore’ [Law Technology News]

Earlier: Quote of the Day: First!
The Future Has Arrived: For the First Time, Judge Orders Predictive Coding in a Federal Case
Quote of the Day: Keyword Searching? You’re Doing It Wrong

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