By Tim Rollins
Perhaps because of the nature of their position, and the requirement of laying out their reasoning in writing, judges’ words live on their rulings. While few would question that the substance of their rulings is what truly matters, many judges have been famous for not just the wisdom of their rulings, but also for their cutting clarity. Only two years ago, on the occasion of his passing, more than one news outlet compiled a list of Hon. Antonin Scalia’s most famous (and scathing) opinions. (Full disclosure, my favorite is, “Interior decorating is a rock hard science compared to psychology practiced by amateurs.”)
In e-discovery, with approximately 15 years of case rulings essentially defining the field, a handful of legal minds have played outsized roles in shaping the field, and few can claim to be as outspoken as Hon. Andrew Peck, U.S. Magistrate Judge for the Southern District of New York. Now, if you’re reading this blog, chances are you’re familiar with Judge Peck. He has issued several landmark rulings in e-discovery, rulings notable not just for the way they’ve laid the groundwork for e-discovery practice, but also for the sharpness of their words.
With Judge Peck’s retirement from the bench upon us this week (Congratulations if you’re reading this!), we thought it would be an appropriate salute to him to remember some of his most candid (and cutting) observations on e-discovery. So without further ado, here are 10 notable quotes from some of Judge Peck’s most famous decisions—and a couple from other times we’ve had the good fortune to hear him express his mind.
William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co. (S.D.N.Y. Mar. 19, 2009)
Judge Peck called out attorneys who were sleeping on the topic of search terms:
“This opinion should serve as a wake-up call to the Bar… about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords…’”
Da Silva Moore v. Publicis Groupe (S.D.N.Y. Feb 24, 2012)
Judge Peck formalized judicial acceptance of technology assisted review—and tried to assuage counsel’s fears about being experimental subjects:
“Counsel no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review.”
But he was careful not to cross the line into pushing product from the bench:
“Nor does this Opinion endorse any vendor… nor any particular computer-assisted review tool.”
Rio Tinto Plc v. Vale S.A. (S.D.N.Y. Mar 2, 2015)
Three years later, in addition to quoting a notable prior e-discovery ruling (his own Da Silva Moore opinion), he declared debate on the appropriateness of TAR over:
“It is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.”
Fisher v. Forrest (S.D.N.Y Feb 28, 2017):
In 2017, Judge Peck decided lawyers were continuing to hit the proverbial snooze button, issuing a second wake-up call:
“It is time, once again, to issue a discovery wake-up call to the Bar… the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is Rule 34.”
Anti-Monopoly vs. Hasbro (S.D.N.Y. November 3, 1995)
Judge Peck was truly prescient in this 1995 (!) decision, not only in his recognition of the ubiquity of computers in modern life, but also in his declaration of their centrality to the law.
“Thus, today it is black letter law that computerized data is discoverable if relevant.”
Of course, Judge Peck did not constrain his opinions to his Opinions. Anyone attending conferences where he spoke as an expert could also expect to hear his wit and wisdom in on full display.
In the “I guess we can call it progress” category:
“Four years from now, I predict lawyers who are hesitant to use TAR will be using it… if only because there will be a newer better technology they should be using.”
In the “This is why I’m a judge” category:
“Some people fear judicial discretion. I do not.”
In the “Tell us what you really think” category:
“Spoiler alert. Is it malpractice not to get a Federal Rule of Evidence 502(d) order? In my opinion, the answer to that is an unequivocal, absolutely, ‘Yes.’”
In the “Advice that should be common sense” category
“The expression that my friend Chris Dale from Oxford, England, came up with is ‘RTFR,’ which stands for ‘Read the F Rules.’ Since he doesn’t have “federal” over there, I think you can guess what the “F” is.”
So thank you, Judge Peck, for your years of service to the community on the bench and for your always enlightening and entertaining quotes on the law and practice of e-discovery.
And if you’re interested in reading a few more of Judge Peck’s thoughts on e-discovery, you’re in luck! You can get them by downloading Exterro’s 4th Annual Federal Judges Survey from our website today.