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As noted in an article written by Mark Hamblett in Law Technology News, Judge Andrew Carter of the U.S. District Court for the Southern District of New York has granted conditional class certification in the Da Silva Moore v. Publicis Groupe & MSL Group case.

In this case, women employees of the advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSL, have accused their employer of company-wide discrimination, pregnancy discrimination, and a practice of keeping women at entry-level positions with few opportunities for promotion.

Judge Carter concluded that “Plaintiffs have met their burden by making a modest factual showing to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. They submit sufficient information that because of a common pay scale, they were paid wages lower than the wages paid to men for the performance of substantially equal work. The information also reveals that Plaintiffs had similar responsibilities as other professionals with the same title. Defendants may disagree with Plaintiffs' contentions, but the Court cannot hold Plaintiffs to a higher standard simply because it is an EPA action rather an action brought under the FLSA.”

“Courts have conditionally certified classes where the plaintiffs have different job functions,” Judge Carter noted, indicating that “[p]laintiffs have to make a mere showing that they are similarly situated to themselves and the potential opt-in members and Plaintiffs here have accomplished their goal.”

This is just the latest development in this test case for the use of computer-assisted coding to search electronic documents for responsive discovery. On February 24, Magistrate Judge Andrew J. 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 (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.  Finally, on June 15, Judge Peck, in a 56 page opinion and order, denied the plaintiffs’ motion for recusal. 

So, what do you think?  What will happen in this case next?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

 

It’s been a few weeks since we heard anything from the Da Silva Moore case.  If you’ve been living under a rock the past few months, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion in this case in February making it one of the first cases to accept the use of computer-assisted review of electronically stored information (“ESI”).  However, the plaintiffs objected to the ruling and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind and ultimately formally requested the recusal of Judge Peck.  For links to all of the recent events in the case that we’ve covered, click here.

Last Friday, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal.  The opinion and order reviewed the past several contentious months and rejected the plaintiffs’ arguments for recusal in the following areas:

Participation in conferences discussing the use of predictive coding:

“I only spoke generally about computer-assisted review in comparison to other search techniques…The fact that my interest in and knowledge about predictive coding in general overlaps with issues in this case is not a basis for recusal.”

“To the extent plaintiffs are complaining about my general discussion at these CLE presentations about the use of predictive coding in general, those comments would not cause a reasonable objective observer to believe I was biased in this case. I did not say anything about predictive coding at these LegalTech and other CLE panels that I had not already said in in my Search,Forward article, i.e., that lawyers should consider using predictive coding in appropriate cases. My position was the same as plaintiffs’ consultant . . . . Both plaintiffs and defendants were proposing using predictive coding in this case.  I did not determine which party’s predictive coding protocol was appropriate in this case until the February 8, 2012 conference, after the panels about which plaintiffs complain.”

“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).”

Relationship with defense counsel Ralph Losey:

“While I participated on two panels with defense counsel Losey, we never had any ex parte communication regarding this lawsuit. My preparation for and participation in ediscovery panels involved only ediscovery generally and the general subject of computer-assisted review. Losey's affidavit makes clear that we have never spoken about this case, and I confirm that. During the panel discussions (and preparation sessions), there was absolutely no discussion of the details of the predictive coding protocol involved in this case or with regard to what a predicative coding protocol should look like in any case. Plaintiffs' assertion that speaking on an educational panel with counsel creates an appearance of impropriety is undermined by Canon 4 of the Judicial Code of Conduct, which encourages judges to participate in such activities.”

Relationship with Recommind, the selected vendor in the case:

“The panels in which I participated are distinguishable. First, I was a speaker at educational conferences, not an audience member. Second, the conferences were not one-sided, but concerned ediscovery issues including search methods in general. Third, while Recommind was one of thirty-nine sponsors and one of 186 exhibitors contributing to LegalTech's revenue, I had no part in approving the sponsors or exhibitors (i.e., funding for LegalTech) and received no expense reimbursement or teaching fees from Recommind or LegalTech, as opposed to those companies that sponsored the panels on which I spoke. Fourth, there was no "pre-screening" of MSL's case or ediscovery protocol; the panel discussions only covered the subject of computer-assisted review in general.”

Perhaps it is no surprise that Judge Peck denied the recusal motion.  Now, the question is: will District Court Judge Andrew L. Carter, Jr. weigh in?

So, what do you think?  Should Judge Peck recuse himself in this case or does he provide an effective argument that recusal is unwarranted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.