The U.S. Supreme Court has declined to participate in the electronic-discovery saga Monique Da Silva Moore v. Publicis Group e S.A.
The plaintiffs have been trying to force U.S. Magistrate Judge Andrew Peck of New York’s Southern District off the case, asserting that Peck was biased because of his public support of predictive coding (a.k.a. technology-assisted review) in electronic-data discovery — including an article published in NLJ affiliate Law Technology News, “Search, Forward,” October 2011.
Peck refused to recuse himself, and when U.S. District Judge Andrew Carter declined to intercede, the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. When it, too, turned a cold shoulder, they appealed all the way to the Supreme Court. On October 7, the court denied cert, ending the matter. The petitioners’ attorney, Sanford Heisler chairman David Sanford, declined to comment.
The Second Circuit’s order was short: “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Peck] abused [his] discretion’ in denying their district court recusal motion…or that the district court erred in overruling their objection to that decision.” (All brackets from the ruling.) The effort to push Peck off the case drew tremendous attention and speculation from the legal technology community. So much so that Sharon Nelson, president of consultancy Sensei Enterprises Inc., dubbed it “EDD’s Version of Keeping Up with the Kardashians” on her Ride the Lightningblog, and Craig Ball, on his blog, wrote a scathing commentary, “Putting the Duh in Da Silva Moore.”
Ball said of the Supreme Court’s action, “Did anyone, for even a moment, contemplate a different outcome? Who was it that imagined John Roberts saying, ‘Abortion? Campaign Finance? Obama­care? Government Shutdowns? To heck with all that! We’ve got to deal with Peck and Predictive Coding!’ “
Nelson’s reaction to the news: “You would think, by this point, the plaintiffs would have seen the writing on the wall. I’m sure they do now.”
Meanwhile, the underlying case continues. In August, Peck wrote a 31-page “Report and Recommendation” to Carter, urging that he deny plaintiffs’ motion to file a third amended complaint, in the ongoing employment sex discrimination dispute. Defendants Publicis Groupe and MSL Group oppose the motion on the ground that the plaintiffs “cannot establish ‘good cause’ as required by Rule 16(b).”
THE NATIONAL ARCHIVES’ LOSS
Jason Baron, director of litigation for the National Archives and Records Admini­stration, had an interesting day the other week. Or, we should say, an interesting hour.
“I was sent home on Tuesday, October 1, as a nonessential worker — a definite blow to one’s ego!” said Baron, one of the many workers furloughed because of the federal government shutdown. But within an hour of learning that expected news, he had a job offer. It wasn’t from Uncle Sam; it was from Drinker Biddle & Reath — to serve as of counsel to its information-governance and e-discovery group, led by co-chairmen Bennett Bor­den and Jay Brudz. Baron said yes.
Baron had worked for the feds since 1988 — in his National Archives gig for 13 years; before that, as senior counsel in the Civil Division of the U.S. Department of Justice and as a trial lawyer. He led National Archives’ efforts to provide “responsive White House email and other records in the massive U.S. v. Philip Morris racketeering lawsuit and was active in assisting in the defense of lawsuits filed under the Freedom of Information Act, the Federal Records Act and the Presidential Records Act in a wide variety of high-profile cases,” he says in his résumé.
Baron, a Boston University School of Law graduate, is a member of the Massachusetts and District of Columbia bars, as well as federal bars. Among his outside activities, he is active with The Sedona Conference and was founding co-coordinator of the National Institute of Standards and Technology’s TREC Legal Track that evaluated search issues in a legal context. A prolific writer and frequent speaker, Baron also was recognized this summer as an e-discovery “trailblazer” in NLJ affiliate The American Lawyer‘s “Top 50 Big Law Innovators of the Last 50 Years.”
Why Drinker? The biggest attraction, Baron said, was knowing that he shared the same vision with the two co-chairmen. Both are partners in the commercial litigation practice group, and officers of firm subsidiary Drinker Discovery Solutions. The two joined Drinker in May, after serving as co-chairmen of a similar practice group at Williams Mullen.
“Collectively, we see the e-discovery challenges that institutions of all kinds face as only part of a more systemic ‘governance’ problem regarding how we manage information in complex networks and repositories,” Baron said.
“E-discovery is merely one aspect of a much larger information-governance challenge,” Borden said. With the maturation of electronic-data discovery law, especially around proportionality, and the advent of effective technology to deal with large volumes of data, the intense pressure and burden of electronic discovery is on the wane, he said. “With good advice and good technology, the e-discovery problem is largely solved. The larger [information-governance] challenge is just beginning to be addressed.”
“Over the last 25 years, Jason has been at the center of a revolution in how documents and records are handled,” Drinker Biddle chairman Alfred Putnam Jr. said. “[H]e is one of the nation’s most knowledgeable experts in the area of e-discovery and electronic record keeping. His unparalleled knowledge in the field will be invaluable to our clients.”
Explaining his move, Baron, 57, said: “After my long career in public service, I thought this was a good time to transition to a private-sector position where I can directly help influence the adoption of best practices in the area of information governance across a range of institutions, public and private. For example, I’d like to think I am very well positioned to assist the legal tech sector in how it can best assist federal agencies in meeting the [national] archivist’s mandate for a digital archives in 2019, given the vast amount of email and other electronic records created each day across 300 federal agencies.” Another point, he said, is to “provide value to private corporations in advising them on how to best achieve ‘governance’ of Big Data.”
With the adoption of the “Capstone” approach to email management by federal government entities, and a mandate for a digital archives by 2019, “I honestly believe that the action now lies with the private sector to come up with innovative ways to meet federal requirements,” he said. Part of his decision was “a feeling that I could now accomplish more being on the outside of government in furthering the dialogue.”
Monica Bay is editor in chief of NLJ affiliate Law Technology News. She can be contacted at email@example.com.