The temperature was just raised again in the motion to recuse Magistrate Judge Peck from the gender discrimination class action in which he broke new ground by formally authorizing predictive coding, and in which he (unsuccesfully) warned the plaintiffs to cease their “scorched earth” litigation tactics. (For prior posts on the case, click here.). The plaintiffs hired a judicial ethics expert who today moved for permission to file an amicus brief in support of recusal. In the proposed brief attached to the motion, the expert first took issue with Judge Peck issuing a decision endorsing predictive coding shortly after writing an article in favor of predictive coding:
In my opinion, however, a reasonable person — if aware of the fact that Judge Peck first wrote a legal article that purported to be give “judicial approval” for a discovery technique that had never been relied on, and then wrote an opinion in which he made the very ruling which he had said that certain counsel and their clients had been “waiting for” — might well wonder why he did that. Specifically, he or she might wonder whether the judge’s goal was, as it should be, simply to dispense even-handed justice in the case he had been assigned to preside over; or if he may, perhaps, have had an ulterior motive. . . . [A] United States Magistrate Judge is not an Article III judge; who, by law, enjoys lifetime tenure . . . . A reasonable person might consider, therefore, the possibility that Judge Peck — first in writing his article which gave “judicial approval” to an Ediscovery technique that no party had asked him to opine about, and then in his Opinion in this case which lectured the bar on Ediscovery — might not be acting out of purely altruistic motives, but with an eye on possible future employment in the private sector .
The expert also complained about Judge Peck’s stern treatment of plaintiffs’ counsel in conferences:
A reasonable person would know, moreover, that what Judge Peck expressed towards plaintiffs’ counsel was not an “occasional display of irritation.” During the course of consecutive hearings he: (1) screamed at plaintiff’s lead counsel; (2) rebuked three female attorneys from his firm for “whining;” (3) attempted to “embarrass” one of his partners by attempting to show that she had not read his rules, only to suggest that he believed she was lying when she said that she had; (4) revoked the telephone privileges of the same partner, before threatening to disqualify her from representing the plaintiffs without due process of law, seemingly for asking him a question that he did not like; and (5) threatened to hold another firm attorney in contempt. The judge also — not once, but on multiple occasions — accused various attorneys from plaintiffs firm of not “knowing how to practice law.” During the course of his relative brief tenure as the pre-trial magistrate, in other words, Judge Peck has made a series of comments which would seem to fall well below the minimum level of “caution” and “circumspection” envisioned by the drafters of the Code of Judicial Conduct.
Are the plaintiffs trying strengthen their recusal motion by antagonizing Judge Peck in the course of the motion itself? We will continue to follow developments.