Magistrate Judge Peck Orders Predicting Coding in SDNY

February 14th, 2012

From Law Technology News:

In what appears to be the first federal case to adopt the use of automated coding, Peck, in Da Silva Moore v. Publicis Groupe et al., ordered the partiesto adopt a protocol for e-discovery that includes the use of predictive coding as implemented by Recommind’s Axcelerateproduct.

Paul Neale, CEO of DOAR Litigation Consulting and Gene Klimov, vice president of Discovery Consulting, advised the plaintiffs and the court on developing a protocol for e-discovery that used iterative sample sets of 2,399 documents from a corpus of 3 million documents (95 percent confidence level; plus or minus 2 percent variance). In effect, the parties will review from 15,000 to 20,000 documents to instruct Axcelerate on what documents are relevant in the litigation, which is no easy matter in class actions like Da Silva Moore, or in other cases that plead multiple issues of law and fact.


At ATL, Chris Danzig notes this is big news!

Assuming nothing horrendous goes wrong as De Silva Moore continues to progress, simply having a judge-recommended predictive coding case on the books is a big step. it has the potential to give computer-assisted review and air of official recognition that other more established technologies, like keyword searching, don’t even have. (For what it’s worth, Peck strongly dislikes keyword searching, even though, as he explained at the conference, everybody does it anyway.)

I’m reading through the transcript. MJ Peck is ticked off!

18 THE COURT: Ms. Wipper, have you read my rules?
19 MS. WIPPER: Yes, your Honor.
20 THE COURT: What does it say about the frequency of
21 conferences? I’m going to embarrass you here, because I really
22 don’t think you did read them. What does my rule say?
23 MS. WIPPER: I understand you have a rocket docket,
24 and I also understand that if you don’t move to compel early
25 enough, you may not allow the party to file a motion to compel.

1 THE COURT: What does my rule say about conferences?
2 MS. WIPPER: That you are available for conferences
3 and that pre-motion conferences are required.
4 THE COURT: And that any time you have a discovery
5 dispute, even if the prescheduled conference is a month away, a
6 week away, a day away, if you’ve got an emergency, meaning it
7 should be decided sooner rather than later, you contact the
8 Court and I get you in.
9 I’m not happy, first of all, with the way both sides
10 are handling this case, which frankly is only adding more costs
11 to your respective clients or, if plaintiffs are on a
12 contingency, more work for which you someday hope you will get
13 paid by somebody.
14 In any event, you are not relieved from pre-motion
15 conference requirements. As to whether you want to make
16 motions after that at any point in discovery matters, even
17 though in almost all cases I will have ruled from the bench, go
18 right ahead. The result is not going to be any different.
19 With respect to this on the merits, let me hear from
20 defendant.


With all due respect, I don’t know how it got here.
8 Maybe it’s because when you were in front of Judge Sullivan
9 originally, the case was not given as much judicial supervision
10 as it needed, but you’re out of control here. You all had
11 better cooperate with each other. If you don’t, I am going to
12 withdraw Ms. Wipper’s telephone privileges; and if you want a
13 regular 9 o’clock every Friday conference or whatever, we’ll do
14 it, until I lose even more patience with you, and then you’ll
15 get a special master, and whoever loses each issue in front of
16 the special master will pay the special master’s fees of
17 several hundred to a thousand dollars an hour.
18 I’ve seen many a big case in this court go a lot more
19 smoothly than this. As I say, I cannot speak to what happened
20 before I inherited the case, but I expect cooperation. Stop
21 the whining and stop the sandbagging. This goes for both
22 sides. Get along. You’re going to run out of your judicial
23 time. And I don’t just mean the discovery period will end.
24 You’re not my only case, you’re not my only big case. At some
25 point I’m going to say every conference is two hours with you
1 guys and you don’t get any more conferences because you have
2 used up your allotment of judicial time.


THE COURT: Stop. Please. I take judicial notice of
11 the fact that you don’t like the defendants. Stop whining and
12 let’s talk substance. I don’t care how we got here and I’m not
13 giving anyone money today. In the future not only will there
14 be sanctions for whoever wins or loses these discovery
15 disputes, — and so far you’re one for two, I think — there
16 will be sanctions payable to the clerk of court for wasting my
17 time because you can’t cooperate.


THE COURT: Excuse me. Are we doing tag team?
11 MS. WIPPER: No. Sorry, your Honor.
12 THE COURT: You can show up in person next time or you
13 can argue the whole thing yourself on the phone with your
14 associate sitting here. You can’t do both

16 MS. WIPPER: Your Honor, plaintiffs request that you
17 issue a written order.
18 THE COURT: You’re very close to getting not only your
19 telephone privileges removed but your pro hac vice removed.
20 You have a written order. It’s called the transcript. If you
21 want to object to every single ruling I make, feel free. The
22 rules allow you to do that. Does it make me happy? You figure
23 that out.
24 Would you like to have your pro hac withdrawn or would
25 you like to learn the rules of the Southern District of New

York, counsel? Do you want to practice in California? Do you
2 want me to transfer this case to California? I’d be happy to
3 do that. This is ridiculous, Ms. Wipper. Do you have anything
4 to say? Are you there?
5 MS. WIPPER: Yes, I’m here, your Honor. No, your
6 Honor. I would just say that we are complying fully with the
7 local rules of the Southern District of New York as well as
8 your individual rules.
9 THE COURT: What local rule says I’ve got to give you
10 a written order other than a transcript?
11 MS. WIPPER: I was just requesting it, your Honor.
12 THE COURT: It’s not the first time you have requested
13 it and been told we don’t do it that way.
14 MS. WIPPER: OK, your Honor.

15 THE COURT: Off the record.
16 (Discussion off the record).

I can’t imagine litigating in front of this judge.

Update: It seems that Judge Peck didn’t so order, but the parties mutually agreed to predictive coding:

The first case, Da Silva Moore v. Publicis Group et. al., grabbed headlines last week when initial reports erroneously indicated that The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, ordered the parties to use predictive coding technology.  In reality, the transcript from a February 2012, status conference reveals that the parties agreed to use predictive coding technology, but they struggled significantly to define a mutually agreeable protocol.  The challenges surrounding the dispute in Da Silva Moore center on the complexities of attempting to apply a new technological approach to electronic document review that is transparent, accurate, and fair to for all parties.