Overview
Magistrate Judge Peck today denied the plaintiffs’ rather aggressive motion to recuse him in the gender discrimination case that we have covered at length. Judge Peck first determined the motion was untimely. He then ruled that his participation in ediscovery conferences and general support for predictive coding were not grounds for recusal:
To the extent plaintiffs are complaining about my general discussion at these CLE presentations about the use of predictive coding in general, those comments would not cause a reasonable objective observer to believe I was biased in this case. I did not say anything about predictive coding at these LegalTech and other CLE panels that I had not already said in [a prior published] article, i.e., that lawyers should consider using predictive coding in appropriate cases. My position was the same as plaintiffs' consultant . . . . Both plaintiffs and defendants were proposing using predictive coding in this case. I did not determine which party's predictive coding protocol was appropriate in this case until the February 8, 2012 conference, after the panels about which plaintiffs complain. . . . . There are probably fewer than a dozen federal judges nationally who regularly speak at ediscovery conferences. Plaintiffs' argument that a judge's public support for computer-assisted review is a recusable offense (Pls. Br. at 12-17, 23; Pls. Reply Br. at 4-6) would preclude judges who know the most about ediscovery in general (and computer-assisted review in particular) from presiding over any case where the use of predictive coding was an option, or would preclude those judges from speaking at CLE programs. Plaintiffs' position also would discourage lawyers from participating in CLE programs with judges about ediscovery issues, for fear of subsequent motions to recuse the judge (or disqualify counsel). Taken further, it would preclude any judge who speaks at a CLE conference about any ediscovery subject from handling future cases involving ediscovery. Such a position defies logic and is inconsistent with the Code of Conduct for United States Judges.Judge Peck also disagreed that his firm treatment of plaintiffs’ counsel during conferences was a basis for recusal:
A judge’s comments that form the basis of a recusal motion should not be viewed in isolation, but rather must be viewed in context. While I have been critical of plaintiffs' counsel at times, my criticism and resulting frustration are solely due to counsels’ performance, and are not a basis for recusal . . . . Expressions of impatience, dissatisfaction, annoyance, and even anger are not grounds for recusal. . . . . Moreover, I have expressed frustration with both sides in this case. Earlier in the same conference [about which the plaintiffs complain], I stated: “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 the whining and stop the sandbagging. This goes for both sides. Get along.”
