Two Kinda-Important Cert Denials Yesterday: Economic Liberty Casket Case and Predictive Coding

October 16th, 2013

In the orders on Tuesday, the Court denied cert on two totally unrelated cases I had been following (in addition to the conceal carry case from Maryland I blogged yesterday).

First, the Court denied cert on the Louisiana casket case, where the Fifth Circuit found unconstitutional Louisiana’s law that would have required the St. Joseph Abbey monks to become licensed funeral directors to sell a wooden box. I blogged about that decision here and here. I suspect this cert denial was bittersweet for the lawyers at IJ. They are thrilled to get this victory, but probably would not have minded giving economic liberty a go at the Court.

Second, the Court denied cert in a leading predictive coding case, Monique Da Silva Moore v. Publicis Group e S.A.

NLJ has the story:

The U.S. Supreme Court has declined to participate in the electronic-discovery saga Monique Da Silva Moore v. Publicis Groupe S.A.

The plaintiffs have been trying to force U.S. Magistrate Judge Andrew Peck of New York’s Southern District off the case, asserting that Peck was biased because of his public support of predictive coding (a.k.a. technology-assisted review) in electronic-data discovery — including an article published in NLJ affiliate Law Technology News, “Search, Forward,” October 2011.

Peck refused to recuse himself, and when U.S. District Judge Andrew Carter declined to intercede, the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. When it, too, turned a cold shoulder, they appealed all the way to the Supreme Court. On October 7, the court denied cert, ending the matter. The petitioners’ attorney, Sanford Heisler chairman David Sanford, declined to comment.

This denial was not at all surprising, but a big deal for the legal tech community.

The Second Circuit’s order was short: “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Peck] abused [his] discretion’ in denying their district court recusal motion…or that the district court erred in overruling their objection to that decision.” (All brackets from the ruling.) The effort to push Peck off the case drew tremendous attention and speculation from the legal technology community. So much so that Sharon Nelson, president of consultancy Sensei Enterprises Inc., dubbed it “EDD’s Version of Keeping Up with the Kardashians” on her Ride the Lightning blog, and Craig Ball, on his blog, wrote a scathing commentary, “Putting the Duh in Da Silva Moore.”

Ball said of the Supreme Court’s action, “Did anyone, for even a moment, contemplate a different outcome? Who was it that imagined John Roberts saying, ‘Abortion? Campaign Finance? Obama­care? Government Shutdowns? To heck with all that! We’ve got to deal with Peck and Predictive Coding!’ ”