Judge Peck’s Move to DLA Piper

The best-kept secret in e-discovery was revealed this week when DLA Piper announced that the Honorable Andrew Peck joined the firm.

Judge Peck has served as a federal magistrate judge for the United States District Court for the Southern District of New York since he took the bench in 1995, including a term as chief magistrate judge from 2004 to 2005. He currently serves as co-chair of the SDNY-EDNY Local Rules Committee. Prior to taking the bench, Judge Peck was a litigator at Paul, Weiss, Rifkind, Wharton & Garrison LLP, focusing on intellectual property matters.

Most e-discovery practitioners associate Judge Peck with groundbreaking TAR (Technology Assisted Review) or predictive coding opinions. Yet, it was one of his first cases that ushered in the e-discovery era. Ian Lopez of ALM reports that one of Judge Peck’s first cases ushered in the e-discovery era. “That opinion was in 1995’s Anti-Monopoly v. Hasbro, in which Peck wrote ‘it is black letter law that computerized data is discoverable if relevant.’ This opinion, said Kenneth Withers, deputy executive director at The Sedona Conference, marks Peck as ‘the first judge to actually identify e-discovery as a unique phenomenon.’”

Judge Peck received his J.D. from Duke University School of Law, where he was an editor of the Duke Law Journal, and his B.A. from Cornell University. Duke University School of Law is now the home of the Electronic Discovery Reference Model (EDRM) and the host of the conference that sparked the 2015 changes to the Federal Rules of Civil Procedure (FRCP).

ACEDS and I personally wish the Honorable Andrew Peck every success in his new venture.

Coverage of Judge Peck’s retirement celebration and move to DLA Piper:

https://www.law.com/legaltechnews/2018/02/28/retired-federal-judges-titans-of-e-discovery-debate-the-review-revolution/

https://www.law.com/newyorklawjournal/2018/03/05/judge-andrew-j-peck-1-of-e-discoverys-most-influential-figures-retires-from-the-bench/

Worst Nightmare: Court Uses 502 to Compel a Sneak Peek of Privileged Docs

Court of Federal Claims Judge, Margaret Sweeney, who presides over Government litigation regarding oversight of financial institutions, has issued another opinion on attorney client privilege, this time distinguishing Federal Rule of Evidence 502(d). In the most recent status report in the case, Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385(Fed. Cl. Oct. 23, 2017), the defendant produced an additional 3500 documents in response to an earlier order by the court, but in so doing, produced 38 documents that were privileged, then after a review of those, then produced another 22 additional documents. The plaintiff asked to use the quick peek procedure under Rule 502(d), to which the defendant disagreed.

Judge Sweeney, clearly frustrated by lack of cooperation, fashioned a remedy to move the case forward on jurisdictional discovery as a way to bring the long running case to a merits determination.

Judge Sweeney required the defendant, among other things, to:

  • Provide plaintiffs with the opportunity to review the approximately 1500 documents at issue—which are currently being withheld by defendant as privileged pursuant to the deliberative process and bank examination privileges—at a time and place to be determined by defendant.  In so doing, defendant shall not be deemed to have waived any privileges as to these documents.

Judge Sweeney also rejected Sedona’s comment disarming 502’s use as a weapon:

  • [FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.

This case may be distinguished due to the comingling of confidentiality into the privilege designation and FRE 502’s focus on privilege protection, the resources of the court anticipating an in-camera review and the Judge’s lack of patience with the producing party.

K&L Gates discusses the case, and provides a direct link to the opinion here.