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.