In prior posts, we’ve commented on the emerging judicial focus on the use of technology-assisted review/predictive coding as well as the twists and turns of Da Silva Moore, in which Magistrate Judge Peck permitted the use of predictive coding in a groundbreaking decision, only to have plaintiffs seek his recusal on the purported ground that his involvement in the e-discovery world showed a bias in favor of predictive coding.
Quoting one of Judge Shira Scheindlin’s decisions in National Day Laborers, Judge Carter noted that Judge Peck is “one of this Court’s experts in e-discovery.” Had this decision gone the other way, it could have chilled much needed dialog between judges, lawyers and technologists on emerging discovery issues and tools as well as judicial interest in learning about how emerging technologies actually might meaningfully be deployed in cases. Instead, Judge Carter’s decision endorses the view that learning and teaching about e-discovery are not bases for recusal.
Judge Carter also took on suggestions that seemingly off-the-cuff comments made by Judge Peck in working through discovery matters reflected an improper level of annoyance with plaintiffs that required recusal. Noting that judicial annoyance with a party may sometimes be “called for or understandable,” Judge Carter concluded:
A disinterested observer fully informed of the facts in this case would find no basis for recusal. The Court perceives expressions of annoyance, frustration or anger grounded largely on the Magistrate Judge’s dissatisfaction with certain actions of Plaintiffs’ counsel in the incidents Plaintiffs rely upon to charge improper appearance of partiality.
With this sideshow complete, it will be interesting to see how discovery unfolds in Da Silva Moore.