Recusal Fight over Predictive Coding Heads to SCOTUS

, Law Technology News

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Victor Li writes for Law Technology News, an American Lawyer affiliate.

Attorneys representing a group of employees suing public relations company Publicis over gender discrimination claims took their e-discovery dispute with U.S. Magistrate Judge Andrew Peck in Manhattan to the U.S. Supreme Court on Tuesday, in Monique Da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup.

In a petition for certiorari filed with the court, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees argued that Peck, who approved an e-discovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding.

Peck's refusal to recuse himself was upheld by the U.S. Court of Appeals for the Second Circuit in April, after the court found that Peck did not abuse his discretion. In their filing, Da Silva Moore and her co-plaintiffs, who are represented by Sanford Heisler and Goldstein & Russell, argue that the Court of Appeals was too deferential to Peck. Instead, the plaintiffs are asking the Supreme Court to order the Second Circuit to use the less deferential "de novo" standard.

Publicis is represented by Morgan, Lewis & Bockius. MSLGroup is represented by Jackson Lewis.

In their cert petition, the employees stated they objected to protocols for predictive coding proposed by Publicis and MSLGroup and adopted by Peck, arguing that while predictive coding might be a valid method of e-discovery, the employees had concerns over its accuracy. The employees maintained that Peck ignored their concerns because of his "extrajudicial advocacy of predictive coding," as well as his "ties to the e-discovery industry and to predictive coding vendors in particular." To show that Peck appeared to be biased, the employees also cited Peck's authorship of an October 2011 article in LTN ("Search Forward") promoting the use of predictive coding and alleged that Peck had received thousands of dollars in "teaching fees" where he extolled the virtues of technology-assisted discovery.

"Judge Peck avowedly used this case to set a global precedent in favor of predictive coding — a technique that had never before been adopted, and that is now (in large part thanks to Judge Peck) gaining footing," wrote the employees in their cert petition. "Such decisions must be free from any appearance of impropriety or partiality."

The employees also cited a circuit split in how appellate courts reviewed judicial recusals, pointing out that the Seventh Circuit reviews disqualification motions de novo. Besides resolving the circuit split, the employees asked the Supreme Court to find that the Second Circuit's standard was incorrect under the law. Citing federal statute governing judicial recusals, the employees claimed that the law required motions for disqualification to be reviewed objectively and that a deferential standard flew in the face of statutory intent. "Rather than dispelling the appearance of a self-serving judiciary, deferential review exacerbates the appearance of impropriety that arises from judges deciding their own cases and thus undermines the purposes of [the statute]," wrote the employees in their cert petition.

Publicis's attorney, Paul Evans of Morgan Lewis, did not respond to a request for comment while MSLGroup’s attorney, Paul Siegel of Jackson Lewis, referred comments to his client. "Both the District Court and the Second Circuit Court of Appeals have already rejected the plaintiffs' argument that Judge Peck should be disqualified," said a spokesperson for MSLGroup. "We don't believe that the U.S. Supreme Court should agree to review the issue further. We remain convinced the underlying lawsuit is without merit and we will continue to defend against it vigorously."

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