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Peck Wins By Submission; Parties Get Shot At Title Fight

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis! As eDiscoverista predicted (don’t look so surprised), plaintiffs filed a formal motion for review of Judge Peck’s approval of predictive-coding protocol. Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck’s ruling as it was “well reasoned” and not erroneous or contrary to law, in accordance with Rule 72(a).

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Peck’s ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides.

Last Month on Moore v. Publicis…

If you’ve just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs’ allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.

On February 8, 2012, counsel for parties in Moore v. Publicis appeared before Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and reputed e-discovery advocate, to discuss the acceptability of computer-assisted review and the protocol for document review. Plaintiffs strongly objected to defendants’ proposed protocol, arguing that the use of “predictive coding” violates Federal Rule 26(b)(2)(C) and criticizing the use of such a novel method of discovery without supporting evidence or procedures for assessing reliability.

On February 24, 2012 (before defendants filed their response to plaintiffs’ protestations), Judge Peck issued a written opinion memorializing his approval— the first opinion to sanction use of computer-assisted review, complete with an acceptable model protocol.

Angered, plaintiffs wrote to District Court Judge Andrew L. Carter, Jr. asking to file a sur-reply. They argued that Judge Peck’s written ruling, issued only two days after plaintiffs’ objections were filed, addressed their objections without proving an opportunity for plaintiffs to explain and defend same. Moreover, defendants were able to consider Judge Peck’s analysis before responding to plaintiffs’ objections. Plaintiffs wanted the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.” Judge Carter granted plaintiffs’ request, and plaintiffs submitted their sur-reply on March 19, 2012.

Plaintiffs simultaneously wrote to Judge Peck, asserting that his February 24 opinion impermissibly relied on outdated, non-peer reviewed articles (including one of his own) and defense counsel’s blog entries, and requested that he recuse himself. Judge Peck denied Plaintiffs’ accusations.

Peck – 1; Plaintiffs – 0

On April 25, 2012, Judge Carter upheld Peck’s ruling, finding it to be well reasoned, and therefore not subject to reversal under Rule 72(a), because Peck approved a protocol specifically tailored to the particular circumstances of the parties discovery needs. Judge Peck carefully crafted a protocol containing standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides.

Judge Carter found that the plaintiffs’ concerns regarding reliability of the methods did not necessitate reversal of Judge Peck’s ruling. As an initial matter, objections to the method were premature because the protocol had not yet been utilized. If plaintiffs utilized the protocol and later determined that they were missing relevant documents, they could reconsider their methods and/or raise the issue with Judge Peck. Judge Peck has the authority to forego a formal evidentiary hearing, and is in the best position to determine whether same is needed – not the reviewing judge. I guess plaintiffs’ fervent argument that Judge Peck recuse himself was unconvincing (and not just to Judge Peck).

Second, plaintiffs’ argument was unpersuasive because “there is simply no review tool that guarantees perfection.” The parties acknowledged that there are risks inherent in the review of electronic documents. Judge Peck concluded that, under the circumstances, the use of predictive coding software is more appropriate than other methods, like keyword searches.

End of the Saga?

Last month, in A is for Appeal, I might have rescinded my own enthusiasm about Judge Peck’s approval of computer-assisted review and model acceptable protocol, but I didn’t give you bad advice. I cautioned you to design an appropriate process (which always includes quality control testing), based on a full consideration of the technology available – In essence, Judge Carter found that Judge Peck had done just that – and it was enough to uphold Judge Peck’s ruling.

Plan on taking a souvenir from this match? Judge Carter said it thrice: Magistrate determinations as to non-dispositive questions deserve deference, unless erroneous or contrary to law. I’m reading between the lines here, but I’d bet that Judge Carter considered using “respect” instead of “deference.”

The theme of the opinion was that (controversial) judicial determinations deserve respect because the court rules provide tools to deal with even hot-button topics. I notice that the judiciary and bar seem to struggle with whether to treat e-discovery issues as they would more traditional discovery disputes. Judge Carter struck a workable balance by returning to the FRCP to ensure that the parties fight by the same rules, while providing judges with the discretion necessary to enable the parties to choose, mold, and effectively apply evolving techniques for identifying and exchanging discovery.



Leah R. Glasofer, the eDiscoverista, received her B.A. in Environmental Policy from American University and J.D. from Seton Hall Law. Leah has clerked for captive counsel of a major insurance carrier, and also for Assignment Judge Yolanda Ciccone in Somerset County. She is now an associate at Graham Curtin, P.A. in Morristown, New Jersey. Leah concentrates her practice in litigation, with an emphasis on professional liability defense, insurance and personal injury defense, and employment.

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