eDiscovery Daily Blog

eDiscovery Trends: For Da Silva Moore Addicts


I am getting prepared to head for sunny Los Angeles for LegalTech West Coast shortly, so today I’m getting by with a little help from my friends.  Tomorrow and Wednesday, I’ll be covering the show.  It wouldn’t be a week in eDiscovery without some tidbits about the Da Silva Moore case, so here are some other sources of information and perspectives about the eDiscovery case of the year (so far).  But, first, let’s recap.

Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, last Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.

More News

And, there’s even more news.  As Sean Doherty of Law Technology News reports, last Monday, Judge Peck denied an amicus curiae (i.e., friend-of-the-court) brief filed in support of the plaintiffs' motion for recusal.  For more on the filing and Judge Peck’s denial of the motion, click here.

Summary of Filings

Rob Robinson of ComplexD has provided a thorough summary of filings in a single PDF file.  He provides a listing of the filings, a Scribd plug-in viewer of the file – all 1,320 pages(!), so be patient as the page takes a little time to load – and a link to download the PDF file.  The ability to search through the entire case of filings for key issues and terms is well worth it.  Thanks, Rob!

Da Silva Moore and the Role of ACEDS

Also, Sharon Nelson of the Ride The Lightning blog (and a previous thought leader interviewee on this blog) has provided a very detailed blog post regarding the in depth investigation that the Association of Certified E-Discovery Specialists® (ACEDS™) has conducted on the case, including requesting financial disclosures for Judge Peck for 2008, 2009, 2010 and 2011 (for items including for “honoraria” and “teaching fees.”).  She wonders why “a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case” and offers some possible thoughts as to why.  A very interesting read!

So, what do you think?  Are you “maxed out” on Da Silva Moore coverage yet?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.