High Court Asked To Kick Judge Off Publicis Sex Bias Case

Posted July 10th, 2013.

As It Appeared On

Law360

by Abigail Rubenstein

Employees accusing advertising conglomerate Publicis Groupe SA of sex discrimination urged the U.S. Supreme Court on Tuesday to disqualify a magistrate judge from overseeing discovery in their suit over his stance on predictive coding technology.

The employees, who are trying to get Magistrate Judge Andrew Peck kicked off the case, filed a petition for certiorari asking the high court to weigh in on whether courts should use a deferential standard when reviewing a judge’s decision not to recuse himself from a case.

The petition contends that unlike the Second Circuit, which applied an abuse of discretion standard when considering Judge Peck’s decision not to step away from the case, courts should review denials of recusal requests de novo.

“Had de novo review been applied by the Second Circuit, Judge Peck’s recusal would have been required because the circumstances created an untenable ‘appearance of partiality’ under Section 455(a),” the petition said. “But because the reviewing courts in this case were compelled to apply the forgiving, deferential abuse of discretion standard, Judge Peck’s inherently flawed decision, which ignored certain facts and excused others, survived unscathed.”

The employees — whose underlying putative class action accuses Publicis of discrimination against female PR workers by confining them to low-level positions in its advertising agencies — have been trying to get Judge Peck off the case because of his approval of the use of predictive coding technology during the discovery process in February 2012, despite the workers’ opposition.

The judge has been a vocal public proponent of the use of predictive coding, which uses computer programs to determine the relevance of documents to a case based on how well they match concepts and terms found in chosen samples, according to court records.

But after he permitted the use of that technology, the employees requested that the judge recuse himself, arguing that his advocacy for computer-assisted document review belied an alignment with Publicis’ interests.

Judge Peck refused to take himself off the case, and after the federal judge overseeing the suit upheld his decision, the workers turned to the Second Circuit. But saying that the employees had failed to show that the judge had abused his discretion, the appeals court also let the judge’s decision stand.

The employees’ petition to the Supreme Court contends that the circuits are split when it comes to the standard for reviewing decisions such as Judge Peck’s, saying that the courts of appeals have adopted four different rules regarding the proper standard to review a disqualification decision.

The petition argues that the high court should settle on a de novo standard, maintaining that such a standard would appropriately require that an appellate court review all the relevant facts and consider their cumulative effect on a reasonable observer, without giving deference to the individual serving as his or her own judge.

The application of such a standard would dispel any suspicion that the challenged judge has the power to decide his own case, the petition said.

The workers assert that their case presents an ideal vehicle for addressing the standard of review because Judge Peck’s decision to authorize predictive coding “set a critical precedent in the world of e-discovery,” demonstrating the importance that such influential rulings be issued without the appearance of bias.

Before the judge’s ruling, no court had ever permitted the parties to replace traditional review with predictive coding, and it has since gained footing in large part thanks to Judge Peck’s decision, the petition said.

“Judge Peck’s decision was nothing short of a landmark, and the precedent it set continues to reverberate in discovery disputes throughout the United States,” the petition said. “Such decisions must be free from any appearance of impropriety or partiality.”

However, a spokesman for Publicis unit MSLGroup, which is named as a defendant in the suit, said the issue does not warrant further review.

“Both the district court and the Second Circuit Court of Appeals have already rejected the plaintiff’s argument that Judge Peck should be disqualified,” the spokesman said. “We don’t believe that the U.S. Supreme Court should agree to review the issue further.

“We remain convinced that the underlying lawsuit is without merit, and we will continue to defend against it vigorously.”

The employees are represented in their bid for high court reviews by David W. Sanford and Jeremy Heisler of Sanford Heisler LLP and Thomas C. Goldstein of Goldstein & Russell PC.

Publicis is represented by Paul C. Evans of Morgan Lewis & Bockius LLP. MSLGroup is represented by Jeffrey W. Brecher and Victoria Woodin Chavey of Jackson Lewis LLP.

A Supreme Court case number was not immediately available but the case in the lower court is Da Silva Moore v. Publicis Groupe et al., case No. 1:11-cv-01279, in the U.S. District Court for the Southern District of New York.

–Additional reporting by Dan Prochilo. Editing by Chris Yates.

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