Will a challenge to the use of predictive coding or technology-assisted review (TAR) disguised as a recusal fight capture the attention of the U.S. Supreme Court? Probably not. Recently, the Da Silva Moore plaintiffs petitioned the Supreme Court for certiorari on the narrow question of the standard of review for a recusal decision. And we all know that the recusal decision involved a failed attempt to disqualify Magistrate Judge Andrew J. Peck from a case because of his publicly stated views that TAR could be used in the right circumstances, and due to his participation in organizations, seminars and other events that discuss the development and use of TAR.
The petition asks the Supreme Court to provide guidance on the appropriate standard of review for recusal decisions asserting:
[T]he impact here of the standard of review is stark: Judge Peck avowedly used this case to set a global precedent in favor of predictive coding – a technique that had never before been adopted, and that is now (in large part thanks to Judge Peck) gaining footing. 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. Such decisions must be free from any appearance of impropriety or partiality.
Despite this, it is unlikely that the Supreme Court will accept the petition. First, the Court is unlikely to view the identified circuit split – all but one of the circuit courts agree with the standard applied by the U.S. Court of Appeals for the Second Circuit – as an important question requiring resolution. Second, the Second Circuit’s decision is not unusual or extraordinary – it applied the same standard already established by the Second Circuit to review recusal decisions. Moreover, apart from challenging the standard of review itself, the petition does not appear to question how the Second Circuit applied this standard in its ruling.
Even if the petition is granted, it is unlikely that the Supreme Court’s eventual decision would discuss the availability of TAR. That too would appear to be unnecessary given the narrow question presented. In that event, it is more likely that the decision would discuss whether a judge’s public statements on TAR may require the judge’s recusal. As we have discussed in the past, there is a benefit in judges taking the time to learn and speak about the use of new technologies to cut the costs and burdens relating to the review of ESI.
Regardless of whether the petition is accepted, its filing, as we anticipated, illustrates that the involvement of courts (even the highest one in the land) will continue to be sought when parties cannot come to an agreement on the use and limits of TAR.