Geez, you take a week or so to cover some different topics and a few things happen in the most talked about eDiscovery case of the year. Time to catch up! Today, we’ll talk about the response of the defendant MSLGroup Americas to the plaintiffs’ motion for recusal in the Da Silva Moore case. Tomorrow, we will discuss the plaintiffs’ latest objection – to Magistrate Judge Andrew J. Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections. But, first, a quick recap.
Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Judge Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling. In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.
Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion. On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck. But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.
As for the motion for recusal, that’s still pending. On Monday, April 30, the defendant filed a response (not surprisingly) opposing the motion for recusal. In its Memorandum of Law in Opposition to Plaintiffs’ Motion for Recusal or Disqualification, the defendants noted the following:
As a result, the defendants argued that the court should deny plaintiffs motion for recusal because:
For details on these arguments, click the link to the Memorandum above. Judge Carter has yet to rule on the motion for recusal.
So, what do you think? Did the defendants make an effective argument or should Judge Peck be recused? Please share any comments you might have or if you’d like to know more about a particular topic.
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