Overview
Magistrate Judge Peck issued a widely-publicized opinion in February endorsing the use of "predictive coding" -- using computer algorithms to help identify relevant documents -- in a gender discrimination class action. (See coverage, e.g., in Reuters, law.com, ABA Journal.) The plaintiffs sent Judge Peck scathing letter the following month asking that Judge Peck recuse himself because of his public advocacy of predictive coding and because of his public appearances with defense counsel Ralph Losey on the subject:
Your Honor has not only attended numerous pro-predictive coding conferences, you have served on pro-predictive coding panels with Defense Counsel, Mr. Losey, while presiding over a heated discovery dispute concerning a predictive coding protocol in the instant case. Together, Your Honor and Mr. Losey have advocated pro-predictive coding views at conferences sponsored by Defendant MSL's eDiscovery vendor, Recommind, and you have been indirectly reimbursed for your panel appearances by Recommind. These facts taken together with Your Honor's directive to the parties to read your pro-predictive coding article, Search Forward; your on-the-record statement to Defendants that they "must have thought they died and went to heaven" when the case was referred to you; the repetition of this remark to members of the general public during a panel at LegalTech 2012; and your on-the-record recommendation that Defendants employ the assistance of their eDiscovery counsel, Mr. Losey, who you knew "very well," create . . . . doubt regarding your impartiality . . . .Judge Peck issued an order allowing the plaintiffs to file a motion on the issue, but he warned them not to:
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. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case. It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) 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.The Order indeed fell on deaf ears. On Friday, the plainffs moved to recuse Judge Peck, and responded to the Judge's Order:
Plaintiffs reiterate that they seek Judge Peck’s disqualification not because of his service on eDiscovery panels in general, but because of his service on pro-predictive coding panels, in particular, with defense counsel Losey that were sponsored by Recommind, while the parties’ discovery dispute concerning predictive coding was ongoing. This is in addition to the other factors cumulatively supporting recusal, such as Judge Peck’s public comments regarding this litigation and his failure to properly disclose his activities. The confluence of facts in this case is unique, and judges will not be deterred from participating in legal education should Plaintiffs prevail on their motion.
