Da Silva Moore plaintiffs request judge’s recusal

A frequent proponent of e-discovery technology, plaintiffs say Judge Peck’s partiality is questionable

Things recently took a dramatic turn in what’s possibly the highest-profile litigation related to the world of e-discovery and technology-assisted review at the moment. On April 13, the plaintiffs in Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group filed a formal motion to recuse or disqualify Magistrate Judge Andrew Peck of the U.S. District Court in the Southern District of New York.

Judge Peck had issued an opinion on Feb. 24 stating that the defendants could use predictive coding, a software tool that uses algorithms to automatically tag documents, to review as many as 3 million electronic documents as part of the parties’ e-discovery protocol. As a result, the case became a flag for many in the legal technology space to wave as evidence of judicial approval for predictive coding, despite the fact that both parties had previously agreed upon its use.

However, after Judge Peck issued his opinion, the plaintiffs voiced their objection, citing a lack of criteria to fully gauge whether the results with predictive coding—in the precision and recall of relevant documents—was sufficient to justify its continued use. Then, after an initial letter from the plaintiffs on March 28 requesting that Judge Peck recuse himself, they filed the formal request a few weeks later.

The plaintiffs are arguing that Judge Peck’s public approval of technology-assisted review technologies, including predictive coding, make him biased. They cite as proof numerous instances of the judge’s writings, statement and personal conduct.

The plaintiffs say that he made remarks to the defendants when in conference with both parties, such as: “You must have thought you died and went to Heaven when this [case] was referred to me.”

Additionally, the plaintiffs allege that Judge Peck’s “Search Forward” article from Oct. 2011 promotes defendants’ use of predictive coding technology, and that his frequent appearances at conference panels and continuing legal education events that were sponsored by predictive coding technology vendors where he spoke in favor of technology-assisted review are evidence of his partiality.

Judge Peck, however, wrote in a response order to the plaintiffs’ March 28 letter, that his favorable view of predictive coding was well known to them before he issued his initial ruling.

“The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech,” Peck wrote.

Judge Peck added that if plaintiffs were to prevail in their request to remove him from the case, it would serve to discourage both judges and attorneys from speaking on educational panels about e-discovery and other subjects.

“The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their ‘scorched earth’ approach to this litigation,” Peck wrote.

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