Moore v. Groupe

• Decision Date: 15 June 2012
• Docket Number: No. 11 Civ. 1279(ALC)(AJP).,11 Civ. 1279(ALC)(AJP).
• Citation: 868 F.Supp.2d 137
• Parties: Monique DA SILVA MOORE, et al., Plaintiffs, v. PUBLICIS GROUPE & MSL Group, Defendants.
• Court: U.S. District Court — Southern District of New York

868 F.Supp.2d 137

Monique DA SILVA MOORE, et al., Plaintiffs,

v.PUBLICIS GROUPE & MSL Group, Defendants.

No. 11 Civ. 1279(ALC)(AJP).

United States District Court, S.D. New York.

June 15, 2012.

Jeremy Heisler, Deepika Bains, Steven Lance Wittels, Sanford Wittels & Heisler, LLP, Siham Nurhussein, Clifford Chance U.S., LLP, New York, NY, David W. Sanford, Sanford, Wittels & Heisler, LLP, Washington, DC, Janette Lynn Wipper, Sanford Wittels & Heisler, LLP, San Francisco, CA, for Plaintiffs.

Melissa Ruth Kelly, Morgan, Lewis & Bockius LLP, New York, NY, Krissy Anne Katzenstein, Morgan, Lewis & Bockius LLP, Washington, DC, Paul C. Evans, Morgan Lewis & Bockius, LLP, Philadelphia, PA, Noel P. Tripp, Paul J. Siegel, Jeffrey W. Brecher, Jackson Lewis LLP, Melville, NY, Brett Michael Anders, Jackson Lewis LLP, Morristown, NJ, Victoria Woodin Chavey, Jackson Lewis LLP, Hartford, CT, for Defendants.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiffs' “Motion for Recusal or Disqualification” (Dkt. No. 169) is based not on any claim that the Court has an actual bias, but rather on “an appearance of partiality.” (Dkt. No. 192: Pls. Reply Br. at 1 n. 1: “Plaintiffs have never accused Judge Peck of actual bias or sought to impugn Judge Peck's integrity. Plaintiffs' only ground for recusal is that the facts taken together create an appearance of partiality.”) Plaintiffs' recusal motion is DENIED.

FACTUAL BACKGROUND

The main ground of plaintiffs' motion is that my support for predictive coding showed bias favoring MSL and coerced plaintiffs into assenting to the concept of predictive coding. The chronology of events in this case puts the lie to plaintiffs' claim.

This case was referred to me on November 28, 2011. (Dkt. No. 48.) Well before that date, MSL had informed plaintiffs that it “proposes using keywords as well as the analytical tools available in the Axcelerate review platform, which includes predictive coding....” (Dkt. No. 178: Anders Aff. Ex. 2: Anders 10/21/11 Letter to Wipper at 3; see also Anders Aff. Ex. 3: Anders 11/3/11 Letter to Wipper at 4–9.) Plaintiffs requested that MSL fully disclose its proposed predictive coding methodology for plaintiffs' consideration. ( See Dkt. No. 124: Nurhussein 3/19/12 Aff. Ex. E: Wipper 11/9/11 Letter to Anders at 5; see also id. Ex. D: Wipper 10/25/11 Letter to Anders at 2.)

December 2, 2011 Conference

I held my first conference with the parties on December 2, 2011. (Dkt. No. 51: 12/2/11 Conf. Tr.) During that conference, MSL's counsel stated that an open issue was “plaintiff's reluctance to utilize predictive coding to try to cull down” approximately three million electronic documents from the agreed-upon custodians. (12/2/11 Conf. Tr. at 7–8.) Because of my Search, Forward article that I would call to the parties' attention at the conference, I stated that: “You must have thought you died and went to Heaven when this was referred to me,” to which MSL's counsel responded: “I'm just thankful that, you know, we have a person familiar with the predictive coding concept.” (12/2/11 Conf. Tr. at 8–9.) Plaintiffs did not move to recuse me at that time for making this comment. To the contrary, plaintiffs' counsel clarified that MSL had “over simplified [plaintiffs'] stance on predictive coding,” i.e., that they were not opposed but had “multiple concerns ... on the way in which [MSL] plan to employ predictive coding” and plaintiffs wanted “clarification.” (12/2/11 Conf. Tr. at 21.)

The Court did not rule on any predictive coding issue but offered the parties the following advice:

Now, if you want any more advice, for better or for worse on the ESI plan and whether predictive coding should be used, or anything else ... I will say right now, what should not be a surprise, I wrote an article in the October Law Technology News called Search Forward, which says predictive coding should be used in the appropriate case.

Is this the appropriate case for it ? You all talk about it some more. And if you can't figure it out, you are going to get back in front of me. Keywords, certainly unless they are well done and tested, are not overly useful. Key words along with predictive coding and other methodology, can be very instructive.

I'm also saying to the defendants who may, from the comment before, have read my article. If you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff's counsel so they can say, well, of course you are not getting any [relevant] documents, you're not appropriately training the computer.

(12/2/11 Conf. Tr. at 20–21, emphasis added.) ¹ The conference adjourned with the parties agreeing to further discuss the ESI protocol. (12/2/11 Conf. Tr. at 34–35.) ²

My October 2011 Search, Forward Article

As noted, at the December 2, 2011 conference I alerted the parties to my article, Search, Forward: Will manual document review and keyword searches be replaced by computer assisted coding?, appearing in the October 2011 issue of Law Technology News. See Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 25–26, 29. The article reviewed the problems with manual review and keyword searches (if poorly done), and generally described how computer-assisted review, a/k/a predictive coding, worked. See Da Silva Moore v. Publicis Groupe, 11 Civ. 1279, ––– F.R.D. ––––, –––– – ––––, 2012 WL 607412 at *2–3 (S.D.N.Y. Feb. 24, 2012) (Peck, M.J.) (quoting Search, Forward, L. Tech. News, Oct. 2011, at 29), adopted,2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012). I ended the article with the comment that lawyers could view the Search, Forward article “as a sign of judicial approval” of predictive coding, but only for appropriate cases, stating:

In my opinion, computer-assisted coding should be used on those cases where it will help “secure the just, speedy, and inexpensive” (Fed.R.Civ.P. 1) determination of cases in our e-discovery world.Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 29. Having had this article and my general opinion about predictive coding brought to the parties' attention at the December 2 conference, plaintiffs did not move for my recusal.

January 4, 2012 Conference

Plaintiffs' counsel wrote asking the Court to postpone the next scheduled conference, stating that “[a]lthough plaintiffs are prepared to consider the use of predictive coding as a search method in general, Plaintiffs need more time to evaluate and provide feedback on [MSL's] draft proposal and its methodology.” (Dkt. No. 178: Anders Aff. Ex. 5: Wipper 12/19/11 Letter to Court, at 2.) Plaintiffs said that after their consultant (DOAR Litigation Consulting) examined MSL's proposal, the “parties then may engage in dialogue in order to address the issues, if any, that require resolution by the Court.” ( Id.) The Court granted the extension (over MSL's objection), and reminded the parties to read my article: “As to predicative coding, you should read my article, ‘Search, Forward’ in the Oct. 2011 issue of Law Technology News.” (Dkt. No. 58: 12/20/11 Memo Endorsed Order.)

On January 3, 2012, in anticipation of the January 4, 2012 conference, plaintiffs submitted a letter to the Court containing their discovery proposals, including an ESI protocol utilizing predictive coding. (Anders Aff. Ex. 6: Wipper 1/3/12 Letter to Court.) Plaintiffs informed the Court that they “have attempted to work within Defendants' proposed methodology while honoring their restrictions” but that “Plaintiffs believe that Defendants' proposed use of predictive coding while arbitrarily imposing a cap [on cost] runs counter to the reasoning behind the use of predictive coding.” ( Id. at 2.) ³ Plaintiffs' proposed protocol stated that “the following is a summary of the Parties' agreement on the use of Predictive Coding” for search of MSL's email archive. (Anders Aff. Ex. 6: 1/3/12 Wipper Letter to Court, attached “Plaintiffs Proposed Protocol Relating to the Production of Electronically Stored Information (‘ESI’)” at 12.) Plaintiffs' Proposed Protocol, in a section entitled “General Overview of Predictive Coding Process,” described that MSL would use Recommind's Axcelerator software and develop a “seed set” to train the computer, it would be a transparent process, and it would include quality testing. (Pls. Proposed Protocol at 12–20.) In other words, after discussions with its consultant DOAR, plaintiffs were proposing using predictive coding, but with certain differences in the details compared to MSL's proposal.

At the January 4, 2012 conference, after addressing other discovery issues, the parties turned to the email search issue.⁴ The following colloquy occurred:

MS. WIPPER [Plaintiffs' Counsel]: ... I'd like DOAR to respond and give you an overview, if we may, of our proposal on predictive coding.

THE COURT: All right, though I guess I'd like to know where it differs [from MSL's].

MS. WIPPER: Well, its actually a direct response to their proposal.

....

MR. NEALE [CEO of DOAR, Plaintiff's Consultant]: ... We have not taken issue with the use of predictive coding, or frankly, with the confidence levels that they have proposed....

(1/4/12 Conf. Tr. at 51, emphasis added.) The parties spent time conferring with each other while the Court handled another case, and later in the afternoon reported that they had made “a lot of progress.” (1/4/12 Conf. Tr. at 53–55.) In discussing what needed to be done and when the next conference would be, MSL counsel Anders noted he would be on vacation, and the Court suggested that another lawyer such as Ms. Chavey cover in his absence so as not to lose time. (1/4/12 Conf. Tr. at 60–61.) The Court also noted that while he might not be working on the case, Anders could involve his firm's Florida ediscovery counsel, Ralph Losey, who I stated I knew “very well.” (1/4/12 Conf. Tr. at 61.) ⁵ Counsel then suggested a date for the next conference, and the Court noted that “That's LegalTech...