This story was originally published by the New York Law Journal, an American Lawyer affiliate.
U.S. Magistrate Judge Andrew Peck refused on Friday to recuse himself from a gender discrimination lawsuit that is believed to be the first case to use predictive computer-assisted coding to search through millions of electronic documents in discovery.
Plaintiffs in Moore v. Publicis Groupe had argued the Manhattan magistrate judge should recuse himself for the appearance of bias.
Plaintiffs lawyers from Sanford Wittels & Heisler alleged Peck coerced them into accepting predictive coding in the case; appeared on panels at e-discovery conferences with an expert from Jackson Lewis, the firm defending Publicis Groupe; and that one of the panels was sponsored by a vendor company employed by the defendants in the case.
In the Moore case, the plaintiffs are five women who are suing advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSLGroup, for systemic, company-wide discrimination, pregnancy discrimination and a practice of keeping women below an entry-level “glass ceiling.”
Peck explained how the e-discovery approach works in an October 2011 article, “Search Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?” in Law Technology News, a Law Journal affiliate.
He quoted from the article in his February ruling approving predictive coding in Moore, finding that a manual search through some 3 million e-mails would be too expensive. U.S. District Judge Andrew Carter approved the decision in April.
The method involves the review and coding of a “seed set” of documents by a senior lawyer or a small team at the firm. The computer then identifies properties in those documents and uses them to code other documents. As the senior reviewer continues to code more sample documents, the computer begins to predict the reviewer’s coding, and it eventually learns to make confident predictions for the remaining documents.
The hope is that a senior lawyer need only review a few thousand documents on the way to training the computer how to search for responsive documents.
The first conference that Peck presided over in Moore was on Dec. 2, 2011, when defense counsel from Jackson Lewis told the magistrate judge that the plaintiffs were reluctant to use the coding.
Peck remarked to defense counsel, “You must have thought you died and went to heaven when this was referred to me.”
In their memorandum seeking recusal or disqualification, Janette Wipper, Steven Wittels, Deepika Bains and Siham Nurhussein of Sanford Wittels said Peck suggested to defense lawyers they engage the assistance of their colleague at Jackson Lewis, partner Ralph Losey, an expert on e-discovery who had served as a co-panelist with Peck on three e-discovery panels.
One of those panels on which Peck and Losey appeared together, a Jan. 31, 2012, LegalTech trade show, was sponsored by Recommind, MSL’s e-discovery vendor and the originator of MSL’s predictive coding protocol. LegalTech is hosted by ALM, the parent company of the New York Law Journal and The American Lawyer .
The Sanford Wittels lawyers claim these facts give the appearance that Peck is biased in the case.
They state the magistrate judge “essentially strong-armed plaintiffs into accepting the use of predictive coding” and reprimanded them for exercising their rights to appeal his rulings to Judge Carter.
Peck answered those charges and others in a 56-page opinion on June 15, saying, “The chronology of events in this case puts the lie to plaintiffs’ claim.”
He said that at nearly every conference on the case he has told the plaintiffs they have the right to take their objections to Carter.
Sanford Wittels took issue with several comments made by Peck, including one in response to their initial letter seeking recusal, where they accused him of labeling them “intransigent ‘scorched earth’ litigants.”
“Plaintiffs take this out of context,” Peck wrote in an April 2 order asking whether Sanford Wittels was going to make a formal recusal motion. “If plaintiffs were to prevail [on recusal], it would serve to discourage judges…from speaking on educational panels about ediscovery (or any other subject for that matter). The court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their ‘scorched earth’ approach to this litigation.”
In their recusal motion, Sanford Wittels attorneys cited the “apparent threats, intimidation and mockery” in Peck’s April 2 order.
But in his opinion, Peck insisted that he has expressed frustration with both sides in the case. He quoted himself from a Feb. 8 conference as saying, “I’ve seen many a big case in this court go a lot more smoothly than this. As I say, I cannot speak to what happened before I inherited the case, but I expect cooperation. Stop whining and stop the sandbagging.”
The magistrate judge insisted that he was not paid by Recommind, had no interest in the litigation, and his statements did not give the appearance of bias.
“Here, my comments at ediscovery conferences related to the general use of predictive coding in appropriate cases, and I did not express any opinion regarding the specific issues in the case. Consequently, neither my comments nor the fact that Losey was on some panels with me, nor the fact that MSL’s vendor Recommind sponsored different panels at LegalTech, separately or collectively, are a basis for recusal.”
Brett Anders, Victoria Wood Chavey and Jeffrey Brecher of Jackson Lewis represent Publicis and MSL.
