If you’ve been following this blog, then you know that the Monique da Silva Moore, et al. v. Publicis Groupe SA and MSL Group case, in which Magistrate Judge Peck authored the first opinion approving the use of predictive coding, is very contentious. You can read our latest entries discussing this controversial case from March 2 and May 16. It appears there is no sign the tension will abate anytime soon.
In early May, Magistrate Judge Peck refused the da Silva Moore plaintiffs’ request to stay discovery pending decisions on certain motions and objections. (These include (1) plaintiffs’ motion for conditional certification of collective action, (2) plaintiffs’ motion for leave to file a second amended complaint, (3) resolution of plaintiffs’ objections to Judge Peck’s dismissal of their predictive coding issues, which Judge Peck designated as not being ripe for review, and (4) plaintiffs’ motion for Judge Peck to recuse himself.)
Days later, on May 9, 2012, plaintiffs fired back, filing objections with Judge Carter accusing Judge Peck of denying their motion without considering their reasons or the law: "Plaintiffs recognize that “[this Court] affords Judge Peck’s non-dispositive rulings great deference, and that magistrate judges generally have broad latitude with respect to discovery issues. However, Magistrate Judge Peck’s outright rejection of Plaintiffs’ request for a stay of discovery, which failed to apply the factors set forth by case law, was contrary to law."
On May 14, 2012, in a move that appears to be more "give ’em enough rope" and less an "about face" Judge Peck issued an order reconsidering his prior denial of plaintiffs’ request to stay defendant’s ESI production. In his order, Judge Peck noted that defendants consented to the stay, and, further, that "[j]urisdictional discovery regarding Publicis, and discovery between plaintiff and MSL unrelated to MSL’s ESI production, are not stayed." As such, Judge Peck specifically observed that "[p]laintiffs’ May 9, 2012 objections to my prior denial of the stay (Dkt. No. 190) are moot."
So what will happen next? Our crystal ball is out of service, but we certainly do not think it likely that Judge Carter will remove Judge Peck from the case. Thus, whatever the result on plaintiffs’ pending motions, you can be sure that the fireworks will continue and this case will continue to be hotly litigated for some time.
Phillip J. Duffy is a Director on the Gibbons E-Discovery Task Force.