We blogged before about the well-publicized gender discrimination class action in which the plaintiffs, ignoring Magistrate Judge Peck’s warnings about “scorched earth” tactics, moved to recuse him, in part, for his advocacy of predictive coding. In their reply brief filed yesterday, the plaintiffs claim there is further support for the alleged appearance of bias from events occurring after the motion. They attach the transcript from a rather contentious April 25 conference. In the following passage, plaintiffs’ counsel, after having a discovery request denied by Judge Peck, asks Judge Peck to not rule on anything while the recusal motion is pending, prompting a firm reaction from Judge Peck:

MR. WITTELS: All right. My final request, your Honor, is that your Honor not issue orders in this case until the recusal motion is decided. THE COURT: Or until the motions you want get decided. You started this conference asking me to rule on something. And now you say well, I didn’t win that one so why don’t you not rule on anything. What makes sense about the way you’ve presented your arguments? Other than, you know, if you win, it’s good, and it isn’t affected by the recusal motion. But if, heaven forbid, you lose, then you go to your recusal. MR. WITTELS: We feel, your Honor – THE COURT: Why didn’t you just waive that argument by asking me to rule on two or three things in the course of the discussion we just had? MR. WITTELS: The reason, frankly, your Honor is I believe that you were not going to grant the stays, and that we requested. And given the tenor of the case thus far, I didn’t want to antagonize you. THE COURT: I think you’re a little late on that Mr. Wittels. MR. WITTELS: Well the intent is not to antagonize the Court at any time, your Honor. I brought it up because I had asked your Honor not to rule any further until it’s decided. I think that’s the appropriate thing to do. THE COURT: Request is denied. MR. WITTELS: Thank you. THE COURT: You waited forever to file the motion. You filed a letter application for recusal. And when I said you want me to rule on that and give the defendants a chance to respond to the letter, or do you want a motion? And you took another, whatever it was, two, three weeks to do the motion on a schedule you set. And now it’s nothing can go on in the case unless it favors you. So I will rule on the recusal motion when it is fully briefed and when I have time to get to it, although it will get a high priority. But at this point I’m not granting you a stay of my activity on the case. You cannot get such a stay merely by making a disqualification motion. You want to take this to the circuit, go wherever you want. Anything else from the plaintiff? MR. WITTELS: Just to respond briefly to your Honor’s point about dealing things under our own schedule. We moved as quickly as we could once we had a full set of facts and information that we believe supported our – THE COURT: First of all, that’s nonsense. And second of all, your letter had basically everything except bells and whistles that was in your motion. So, it should not have taken as long as it did if you thought that the case should stop dead in its tracks while the motion was pending. MR. WITTELS: We did make a motion — as part of our application in our notice of motion, we specified that your Honor not make any further rulings in the case. THE COURT: Yes, but I didn’t hear that you were elected to the Court of Appeals or the Supreme Court. Yes. You asked for that relief. MR. WITTELS: Yes. THE COURT: You didn’t bring it on by an order to show cause or anything else. I assume that you know that defendants wrote a letter saying they would like to respond to your application. Is there a reason that I should follow you and not give them a chance to say anything? Putting aside my own  interest in this matter? When you’ve attacked my integrity. MR. WITTELS: What we’ve attacked is the appearance of impropriety. That’s what we’ve attacked. THE COURT: Yeah well, you call it what you call it. MR. WITTELS: And no, we believe that all parties should be heard fully and completely in court. THE COURT: Good. Is there any reason I should be spending anymore time on this until the motion is fully briefed? MR. WITTELS: No.

Later in the conference, the parties and the Court were discussing whether certain sample documents would be deemed relevant or not relevant for purposes of the predictive coding software protocol governing discovery.  When plaintiffs’ counsel claimed that a document was relevant for reasons Judge Peck had already overruled, Judge Peck expressed his frustrations in a manner that prompted plaintiffs’ counsel to accuse him of “screaming” and demonstrating “actual bias”:

THE COURT: Okay. Got it. Okay what’s the relevance of this document? If I could read the document for the first time this fast, you guys should be able to tell me why you marked it relevant. MS. BAINS: This is compensation to a member of a class. One of the issues is pay. THE COURT: Counsel, how many times are we going through — do I have to make the same ruling more than once? Is it a named plaintiff? Is it a policy document? It’s a document saying I want some tuition benefit reimbursement. Maybe if there were a response to it attached somewhere that said in accordance with our policy you’re entitled to it or you’re not. But that’s not what this is. How on earth is this relevant under the rulings that I’ve already given you, unless Judge Carter reverses them, assuming it’s even one you’ve taken up with objections. I can’t keep track. MS. BAINS: The way it stands, the way the ruling stands, we don’t agree with that because we can’t – THE COURT: So every time — you stop. Come on counsel. This is really contempt. Every time you disagree you’re going to make me and the defendants make the same ruling multiple times? On every single document? You’ve got to be kidding me. You are to rereview the 3300. For every document that violates my ruling that I have to read that you don’t work out before Monday there will be contempt — sorry, there will be sanctions under Rule 37 and the court’s inherent power starting at a hundred dollars  a document. This is outrageous counsel. MR. WITTELS: Your Honor, I think that your Honor is now really expressing here a bias, not the appearance – THE COURT: Yeah, it’s a bias that you guys want to run this Court. That’s not a bias counsel. Sit down. MR. WITTELS: Your Honor, you’re screaming. THE COURT: Sit down, counsel. MR. WITTELS: You’re screaming at me, your Honor. THE COURT: I am yelling at you because you are showing contempt for the Court. You know the law. The bias is bias formed outside of court. If you are making outrageous ridiculous arguments that even though I’ve ruled that this document is irrelevant, you have the right to code it as relevant and reargue it. Yes, I’m not a happy camper. Sit down.