So far as I can see, only two articles have been published so far to report on the defendant’s Memorandum of Law in response to the plaintiff’s motion for the recusal of Judge Peck in Da Silva Moore.  That response was filed on 30 April and it is now the dawn of 5 May. K&L Gates have published a brief reference to it, with links to the Response itself and its exhibits. Legal Technology News has published a straight-up-and-down account under the heading Defendants in ‘Da Silva Moore’ Oppose Motion to Recuse Judge. That article has been re-tweeted a bit, but the rest is silence.

Where is everyone, I wonder? Every move by the plaintiffs has been passed on immediately in blog posts, often with lurid headlines, and usually at a speed which may be a credit to their authors’ reaction times. It takes me quite a long time to produce a balanced summary of things like this; perhaps it’s the balance bit which takes the time.  It feels a little like watching a football match from which one team’s supporters have been barred.

Here by way of reminder is what I said about the plaintiffs Memorandum of Law in my article Peck predictive coding Opinion upheld: does anyone remember what this case is actually about?

It is, no doubt, a model of its kind, but it reads to English eyes as though a Daily Mail features writer has tried to parody the thesis of an aspirant lecturer at a New University. I must have nodded off when reading it, because I entirely missed the footnote which cites an article by me as evidence of the assertion that the defendants’ lawyer was pleased with the outcome of the last hearing.  (Let’s just go back over that: a party to US proceedings, seeking to overturn an order, feels the need to show that the other side were pleased with the order, and relies on an article by an English commentator to “prove” that unsurprising assertion. WTF, as we say in our understated English way)

Some of the articles which we have seen have consisted largely of extracts cut-and-pasted uncritically from the Plaintiffs’ court documents, topped off, as I have said, with an eye-catching headline. Let’s try the same approach here (I already have my eye-catching headline):

Plaintiffs’ motion sets forth a scattershot collection of allegations, consisting of baseless innuendo and gross exaggeration, recklessly impugning the reputation of Magistrate Judge Andrew Peck.

Not only were Judge Peck’s views on e-Discovery generally, and predictive coding in particular, well-known far in advance of the rulings in question, but also Plaintiffs try to ignore the indisputable fact that they agreed to the use of predictive coding in this case. In any event, despite their rhetoric and vitriol, Plaintiffs assert no valid basis for the recusal or disqualification of Judge Peck.

Courts have deemed a motion to disqualify untimely in situations where the movant, in full possession of the facts alleging bias, “hedged its bets” until an unfavorable ruling and then moved for disqualification.

Ethical codes for judges encourage them to contribute to the improvement of the practice of law or the legal system through extrajudicial activities that offer opportunities to “speak, write, lecture and teach on both law-related and non legal subjects.” Judicial Code, Canon 4.

Plaintiffs engage in rank and irresponsible speculation to assert that Judge Peck engaged in ex parte communications with Mr. Losey concerning this case

It is routine for judges to appear at seminars and conferences to discuss a variety of litigation-related topics – use of experts, trial strategy, dispositive motions, and the like – and Plaintiffs offer no basis whatsoever upon which to conclude that this common practice should lead to recusal of any participating judge when a seminar topic arises in a case before them.

Indeed, under Plaintiffs’ view, all judges appearing on a panel with an attorney discussing any procedural issue in litigation (e.g., how to effectively handle Rule 26(f) conferences) would have to recuse themselves because they have spoken on a panel with an attorney concerning an issue that will arise in the litigation.

As additional muck to demonstrate purported bias, Plaintiffs cite a number of comments made by Judge Peck both at training seminars and in the courtroom.

At best, Judge Peck’s comments might be attributable to irritation with Plaintiffs’ failure to follow local procedure and their seemingly indiscriminate and unrelenting disagreements with the Defendants’ positions and with the Court’s rulings.

Plaintiffs have sought to soil the reputation of Judge Peck without any basis in law or fact. At best, the motion is careless; at worst, it is made for the purposes of avoiding prior decisions made by Judge Peck that Plaintiffs view as unfavorable and in retaliation for criticisms lodged at Plaintiffs’ counsel for not complying with local rules.

There is not much to add, really.

If one takes a position on something (and I clearly am taking a position here) then one should make it clear what one’s motives, influences and objectives are. That is obviously right. Isn’t it?

There is not much difficulty about that in my case: I display clearly the logos of suppliers who support my advocacy of the use of technology for the efficient conduct of electronic discovery, including several providers of predictive coding software (amongst them the one used by the Da Silva Moore plaintiffs);  I was anyway a passionate advocate of technology use after years of involvement in this industry, and the support of the providers came afterwards; I have shared platforms with nearly all the judges worldwide who have an informed interest in this subject, and am unstinting in my respect and admiration for them and for the time, knowledge and commitment which they bring to education and the advancement of thought and practice.  All that appears clearly from what I have written over the last five years and more.

Let me digress a moment. As I have recorded elsewhere, I gave the opening keynote speech at iCONECT’s recent Global Summit on Legal Technology in Florida. I always think that an audience deserves to know something about its keynote speakers, and I began by describing how I came to my present role. I compared the mindset acquired at university by those who study law with those who study history, as I did.  Where the primary purpose of a law degree is the acquisition of knowledge about statutes and precedent, a history degree, at least as it was taught at Oxford in the 1970s, is designed to make you question pretty well everything. Who wrote this? When was it written, and what was the political and cultural context in which it was written? Is it an objective record, or did the writer have a mission, a motive or an incentive to present the facts in a certain way or to be selective about them?

This breeds a certain approach to life; historians do not, of course, have a monopoly on being critical, questioning or suspicious, but that is what they are trained to be. Everything which is not nailed down (a certain date for example) is open to evaluation, and nothing is taken as read. You sniff the breeze, as a dog does, trying to identify the odours around you.

Why does this matter? I am indifferent to the outcome of the claim on the merits. I am not concerned with the working through of the sample sets and their validation – that is all to come. I do not have to question whether predictive coding is the right technology for this case, because both parties have agreed that. My role, anyway, is not to advocate any one technology but to encourage lawyers and courts to consider all available solutions to the mounting data volumes, and to do so advisedly.

Judge Peck concluded his order of 2 April with these words:

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.

A “scorched earth” policy is the destruction of the landscape, often their own, by a retreating army in order to deny the enemy food and shelter as it advances. It is a step taken in desperation, when all other strategies have failed or, perhaps, is done pursuant to some collateral objective. It is a good description of the approach being taken by the plaintiffs, and by some of those who appear to support them, and its possible effect, as Judge Peck says, may be to discourage judges and lawyers from taking part in educational events. I believe that educational role to be a force for good – it is a two-way benefit, incidentally, because judges learn as well as teach when they go to such things. You do not need to look further than that to see why I am interested in this case.

The historian’s interest – the tracing of cause and effect, and the questioning of everything which is not an incontrovertible fact – is secondary. It is interesting, though.

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