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Archive for October 10th, 2012

Case Summary: Publicis Groupe; Recusal Motion Found Meritless

Posted by rjbiii on October 10, 2012

Plaintiff moved for the recusal of a magistrate judge under  28 U.S.C. § 455 in a dispute involving the propriety of using predictive coding.  Prior to the case being referred to U.S. Magistrate Judge Andrew Peck, plaitiffs resisted the idea of predictive coding as a component in the e-discovery workflow. 

Plaintiffs did not base their claim on actual incidents of bias, but rather “an appearance of partiality.”  U.S. Magistrate Judge Andrew Peck was asked to recuse himself for

  1. “Public comments concerning the case”;
  2. His “participation on pro-predictive coding panels with defense counsel Ralph Losey while presiding over the parties’ dispute on predictive coding”;
  3. His “numerous speaking engagements in favor of predictive coding, which were at least indirectly sponsored and funded by Recommind and other e-discovery vendors”
  4. His  “failure to disclose [his] activities [which] enhances the appearance of impropriety”

The court began its analysis by declaring that the motion itself was untimely.  Although 28 U.S.C. § 455 doesn’t explicitly address timeliness as a requirement, the issue has manifested itself in prior analyses in two forms: First, judicial resources should not be wasted; and, second, a movant may not hold back and wait to hedge its bets against the eventual outcome.

In deciding whether a recusal motion is timely, a court looks to a number of factors, including whether:

  1. the movant has participated in a substantial manner in trial or pre-trial proceedings;
  2. granting the motion would represent a waste of judicial resources;
  3. the motion was made after the entry of judgment; and
  4. the movant can demonstrate good cause for delay.

The court concluded the movants had been active participants in pre-trial proceedings, and that recusal would require a significant duplication of efforts already expended by the court.  While movants didn’t wait until entry of judgment, they did wait until the court adopted opposing party’s proposed predictive coding protocol.  Although the court didn’t say it plainly, the quotes from cited cases might be seen to imply that movants look to be trying to take a mulligan…or a “second bite at the apple.”  The court not convinced by movant’s statement that they had promptly filed the recusal motion.  The court stated:

Despite plaintiffs’ knowledge as of December 2, 2011 of my views on predicative [sic] coding, and by January 4, 2012 as to my relationship with Losey and my speaking at LegalTech, plaintiffs did not request my recusal until March 28, 2012 by letter and did not file their formal recusal motion until April 13, 2012.  The movant “is charged with knowledge of all facts ‘known or knowable, if true, with due diligence from the public record or otherwise.'” I have made no efforts to hide my views, relationships or affiliations. If plaintiffs truly believed that any of these issues, individually or collectively, created a bias or the appearance of partiality, they should have promptly moved for my recusal.

Accordingly, plaintiffs’ recusal motion is untimely.

Beyond this, the court also declared that plaintiff’s motion was “meritless.”  Judge Peck noted that he had never referred to the substance of this case.  His general comments on predictive coding would not alarm a reasonable observer, and were compatible with movant’s own expert.  Although Judge Peck did participate in panels alongside noted attorney Ralph Losey, whose firm represented movant’s adversary, there had been no ex-parte communication between the two men.  Merely serving on the same panel is not a basis for recusal.  The court also examined the chilling effect for judges and speaking engagements should their motion be successful:

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 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.

Finally, the court defended Judge Peck’s remarks with counsel when things got a bit…testy.  Some of the excerpts included show that the court’s relationship with plaintiffs was far from harmonious.  In previous posts I’ve warned readers about the dangers of unnecessarily provoking the court’s wrath.  Rarely does it end well for the folks stirring the pot.  Below, I’ve listed some of the exchanges between the court and movant’s counsel:

THE COURT: . . . How soon can you [move for class and collective action certification]?

[Pls. Counsel] MS. WIPPER: Your Honor, we would object to moving the briefing schedule to an earlier period given the discovery disputes in this case.

THE COURT: That wasn’t my question. My question is, how soon can you do it? Democracy ends very quickly here, meaning you don’t want to give me a date other than no later than April 1, 2013. I get to pick the date and you get to whine to Judge Carter. [emphasis added].

The court then allowed that it could have chosen [its]words more carefully.  Another discussion ended with this expression of frustration:

“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.” [emphasis added].

The court noted that movants claimed that the Judge had attempted to dissuade them from objecting to his rulings.  The court disagreed, using the following passage to demonstrate that nothing could have been further from the truth.

[…]at the April 25, 2012 conference I said, “And you have the right to take objections to Judge Carter, which you’re not shy about, so take your objections. Stop arguing with me.”

The court also recalled its own remarks made while discussing a [at that time] potential 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.”

Courts often use the phrase “scorched earth” to describe hardball litigation tactics designed to complicate and prolong litigation and drive up litigation costs. My “scorched earth” comment provides no basis for recusal. [emphasis added].

These are a few of the myraid of quotes and exchanges listed in the opinion.  The reader of an opinion has, of course, the benefit of hindsight.  The ruling on a motion, or on the conduct of a case, is included in the very document. It is easy to be critical of unsuccessful parties at that stage (pending appeal, at least).  That said, provoking an already irritated Judge and then submitting a motion for recusal based on what appears to be a weak platform seems like a recipe guaranteed to produce a bitter and unfulfilling dish.

Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 83659 (S.D.N.Y. June 15, 2012)

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