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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)

Posted in 2nd Circuit, Case Summary, Document Review, Magistrate Judge Andrew J. Peck, S.D.N.Y, Technology Assisted Review | Tagged: , , | Leave a Comment »

Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

Posted by rjbiii on March 28, 2009

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”

After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.

Lessons learned:

  1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
  2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
  3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
  4. Even an admittedly imperfect protocol, if the above elements are present, may suffice.

Posted in 2nd Circuit, Case Summary, Effectively Managing E-Discovery, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols, The Sedona Conference | Tagged: | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

Posted by rjbiii on March 28, 2009

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Need for cooperation and communication during E-Discovery

Posted by rjbiii on March 28, 2009

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 at *13-14 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Tagged: | Leave a Comment »

Case Blurb: NTL Securities Litigation; Counsel required to monitor compliance to litigation hold

Posted by rjbiii on August 28, 2007

[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”). In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Litigation Hold, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; FRCP 34(a) and possession of documents

Posted by rjbiii on August 28, 2007

Under Rule 34(a), parties may request from their adversaries documents (including ESI) “which are in the possession, custody or control of the party upon whom the request is served.”
The concept of ‘control’ has been construed broadly.
The test for the production of documents is control, not location. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Duty to Preserves includes relevant ESI in existence at time duty attached

Posted by rjbiii on August 28, 2007

The preservation requirement includes all relevant documents (including electronically stored information) that were “in existence” as of the time that the duty to preserve attached. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Scope of duty to preserve and key players

Posted by rjbiii on August 28, 2007

The duty [to preserve evidence] also includes documents prepared for those individuals [“key players”], to the extent those documents can be readily identified (e.g., from the ‘to’ field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is ‘relevant to the subject matter involved in the action.’ Thus, the duty to preserve extends to those employees likely to have relevant information–the ‘key players’ in the case. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, Key Players, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Scope of the Duty to Preserve

Posted by rjbiii on August 28, 2007

The duty to preserve extends “to any documents or tangible things (as defined by Rule 34(a) [including email] ) made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’ In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Key Players, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; what documents fall under duty to preserve

Posted by rjbiii on August 28, 2007

A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003)).

Posted in 2nd Circuit, Case Blurbs, De-Duplication, Duty to Preserve, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »