Thursday, August 29, 2013

Kroll Ontrack: STOKING A DEAD FIRE: DA SILVA MOORE PLAINTIFFS FILE PETITION FOR WRIT OF CERTIORARI


by MICHELE LANGE As reported first by Victor Li, a reporter at Law Technology News, the plaintiffs in Da Silva Moore are at it again—this time with a cert petition to the U.S. Supreme Court. In their petition, the plaintiffs contend that appellate courts should review “a judge’s determination that he is not biased under” the de novo standard (followed only by the Seventh Circuit) instead of a “deferential ‘abuse of discretion’” standard (“generally used” by every other court of appeals). If you’ve successfully forgotten what the drama is all about in this case, let me refresh your recollection: the plaintiffs’ allegations of bias stem from Judge Peck’s “extrajudicial advocacy of predictive coding” (aka: technology/computer assisted review). The plaintiffs submitted in their petition that Judge Peck has “ties to the e-discovery industry and to predictive coding vendors in particular” and has received money from teaching about the benefits of this technology. Will this case make it to the U.S. Supreme Court? Conservatively put by our friends at IT-Lex, “the percentages suggest that it’s unlikely.” In the interim, while we await the next development in this never-ending saga, perhaps we can circle back to what ediscovery is all about: securing the just, speedy, and inexpensive determination of every action and proceeding. Related posts: Monica Bay’s recap of Judge Peck’s order refusing to recuse himself can be found here My synopsis of the Second Circuit’s opinion is here