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Plaintiffs v. Peck – A Worthy Addition to Your Summer Reading List

Forget the books on your summer reading list, Moore v. Publicis, the high profile employment discrimination, turned e-discovery test case, boasts enough drama and intrigue to keep you on the edge of your beach chair – which is lucky, since you’ve already finished the Fifty Shades trilogy.

The Moore v. Publicis‘s ticket to fame has been the epic battle between the parties and Magistrate Judge Andrew J. Peck, U.S.M.J., a known e-discovery advocate, over whether the parties will use predictive coding, a type of computer-assisted discovery.  Plaintiffs lost on their request for review of Judge Peck’s first-of-its-kind opinion, in which he explicitly approved the use of predictive coding.  On June 15, 2012, their formal motion for Judge Peck’s recusal suffered a similar fate.  In a 56-page opinion, Judge Peck denied Plaintiffs’ formal motion for recusal as untimely and meritless, stating that his general support for the use of predictive coding, participation on an educational panel with counsel, and “expressions of impatience, dissatisfaction, annoyance, and even anger[,] are not grounds for recusal.”  The bulk of the opinion cites case law in support of his finding.

Sure, the substance is interesting and informative…but the politics!  Wow!  Judge Peck’s opinion devotes 16 pages to the chronology of the case.  Judge Peck pointed out that Plaintiffs didn’t start asking that he recuse himself until they started losing on discovery applications – clear evidence, he suggested, that Plaintiffs wait until they know whether they’ll win on the merits of an argument, then make personal attacks as a back-up strategy.  See my timeline below.

Judge Peck deconstructed Plaintiffs’ motion for recusal, steadfastly denying each allegation, despite the personal nature of the attack.  He reasoned that,

In deciding whether to recuse himself, the trial judge must  carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case.

In re Drexel Burnham Lambert Inc., 861 F.2d at 1312; accord, e.g., In re Basciano, 542 F.3d at 956.  Seemingly undiscouraged by the possibility his opinion could be cast as an attempt at self-preservation, Judge Peck stated that

the public interest mandates that judges not be intimidated out of an abundance of caution into granting disqualification motions: A trial judge must be free to make rulings on the merits without the apprehension that if he makes a disproportionate number in favor of one litigant, he may create the [appearance] of bias, and ‘[a] timid judge, like a biased judge, is intrinsically a lawless judge.’  Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. Int’l Union, 332 F. Supp. 2d at 670.

Okay, so maybe it’s not Hatfields & McCoys, but I can’t shake the feeling that we’re witnessing something big.  Moore v. Publicis is laying the foundation for using predictive coding, while knocking down roadblocks to the adoption of new technology, like compliance with Rule 26 and attacks based on Daubert, and Rule 72(a).  While the juicy details of Peck v. Plaintiffs are winning a place on the front pages of legal blogs everywhere, they’re also publicizing the availability of new technology – and maybe encouraging more lawyers to flesh out the rules for computer-assisted discovery.

On the other hand, e-discovery issues present something of a catch-22.  There’s a steep learning curve associated with e-discovery due to its often complicated technological components.  As a result, e-discovery issues are most efficiently and soundly addressed by lawyers and judges who are familiar with the technology.  But training and education about the technological components is often provided by various commercial vendors, which naturally promotes familiarity and preference for some methods over others – rather than making choices based on what’s best for the parties alone.  Additionally, because the methods are new and the community promoting their use is small, lawyers and judges are bound to have professional relationships with others in the community who share their ideology.  Understandably, such preferences could be mistaken for bias.

Enlisting the assistance of those unfamiliar with e-discovery technology doesn’t seem like a good alternative.  Want to educate an unbiased judge about your e-discovery issue? That takes you back to the bias problem above.

Will Judge Peck continue to survive Plaintiffs’ attacks?  Will Judge Carter again be asked to step in?  How is the e-discovery dispute between the parties (and now the federal judiciary) effecting the employment litigation from which it arose and the interests of the parties?  That remains to be seen (or read here, on ELLblog.com.)


▫       In a December 2, 2012 conference, Judge Peck advised the parties to read Search, Forward, an article he had written on predictive coding.  Highlighting that the case was referred to him to assist the parties in culling responsive discovery from 3 million electronic documents, due to his familiarity with predictive coding technology, Judge Peck said to the parties, “You must have thought you died and went to Heaven…” (a quote that’s sure to be the title of a book written about this case.)

▫       On January 3, 2012, Plaintiffs wrote that they had attempted to work within the predictive coding protocol suggested by Defendants.

▫       The parties’ January 4, 2012 conference was spent hashing out a method for handling discovery of emails.  The matter was not resolved and counsel scheduled another conference for February 2, 2012.

▫       From January 30 – February 1, 2012, Judge Peck spoke at LegalTech on a number of CLE panels regarding predictive coding.  Recommind was one of 39 sponsors and 186 exhibitors, but Judge Peck did not speak at any panels it sponsored or receive remuneration for his support of a discovery method for which it writes software.

▫       On February 8, 2012, the parties conferenced regarding the differences in their respective protocols, which had been memorialized in pre-conference submissions to the Court.  Judge Peck submitted an order and opinion on the protocol to be used.

▫       On February 22, 2012, Plaintiffs objected to Judge Peck’s ruling, which was finalized in a formal opinion on February 24, 2012.  Plaintiffs entered objections to the formal opinion, specifically, that the method adopted 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.  They asked Judge Carter to review the February 24, 2012 decision.

▫       The parties held yet another conference with Judge Peck on March 9, 2012.

▫       Then, on March 28, 2012, Plaintiffs wrote to Judge Peck asking that he recuse himself.  They filed a formal motion for recusal on April 13, 2012.

▫       On April 20, 2012, the Plaintiffs asked Judge Carter to hold off ruling on their objections to the February 24, 2012 decision until the motion for recusal was decided.  Judge Carter declined.

▫       The parties held yet another conference with Judge Peck on April 25, 2012.  Plaintiffs asked that Judge Peck stay discovery until Judge Carter ruled on other applications by Plaintiffs to amend their complaint and for FLSA collective action certification.  Judge Peck declined.  Plaintiffs then requested that Judge Peck take no further action on the case until the motion for recusal was decided.  Judge Peck denied that request as well.

▫       Judge Carter upheld  Judge Peck’s February 24, 2012 decision on April 26, 2012, after finding it to be well reasoned and therefore not subject to reversal.

▫       On May 14, 2012, Judge Peck reconsidered his denial of Plaintiffs’ request that he stay discovery sua sponte.


*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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