From Judiciary to Private Practice with Judge Andrew Peck

Episode Notes

Transcript

Law Technology Now

From Judiciary to Private Practice with Judge Andrew Peck

09/24/2019

 

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Sean La Roque-Doherty: Hello. Welcome to our edition of Law Technology Now Podcast. I am Sean La Roque-Doherty and it is a pleasure to have the Honorable Andrew J. Peck with us today.

 

Judge Peck is now Senior Counsel at DLA Piper in New York City. He served for 23 years as Magistrate Judge for the US District Court for the Southern District of New York, including a term as the Chief Magistrate Judge from 2004 to 2005.

 

Before his appointment to the bench, Judge Peck was in private practice for 17 years, focusing on commercial and entertainment litigation, including copyright and trademark matters, with extensive trial experience.

 

At DLA Piper, Judge Peck advises on innovative and efficient solutions to the challenges of information management, both within and outside the litigation context. He frequently speaks at conferences concerning e-discovery issues, and since joining DLA Piper, Judge Peck has been retained to serve as special discovery counsel to clients and law firms and to submit expert reports to state court cases.

 

Welcome Judge Peck.

 

Judge Andrew Peck: Thank you very much.

 

Sean La Roque-Doherty: And before we get into it, a quick note to our sponsor Headnote, helping law firms get paid 70% faster with their compliant e-payments and accounts receivables automation platform. Learn how to get paid quicker and more efficiently at headnote.com.

 

And Judge Peck, since retiring in 2018, you have been a Senior Counsel with DLA Piper, what challenges did you face while transitioning from the judiciary to private practice and what problems persist today?

 

Judge Andrew Peck: It actually Sean was a very smooth transition, probably made particularly smooth because the person who recruited me to come to DLA Piper is one of my former law clerks, Tamar Duvdevani, who is the Partner in charge of the IP Practice in DLA Piper’s New York office. So I am just working with her again and of course 4,000 other lawyers in our small intimate firm of DLA Piper. But that made the transition incredibly easy, and other than I no longer can order people to do anything, I am sort of doing the same things that I was doing on the court.

 

The biggest difference probably and the thing that I like least about law firm practice is having to record time in 6 minute increments, but nevertheless, one has to do that in order to get paid.

 

Other differences are, you mentioned that I was and still am a frequent speaker at e-discovery conferences, when I did that as a judge, maybe if I were gone for three or four days I would get one email from one of my law clerks saying lawyer Smith in the XYZ case is asking for another extension, what do you want me to do with it? Now when I am at conferences, tends to be more client or colleague emails that actually need to get responded to pretty quickly. So that’s another change.

 

And finally of course we did not need to look for business at the Southern District of New York, cases just kept coming in the door. Now of course I need to have clients whether they are clients that I bring into the firm or firm clients that I wind up working with, but that’s a lot of fun.

 

(00:04:59)

 

Sean La Roque-Doherty: Very good. And we are talking to you in your office in New York City, how many I guess people are just in New York City from DLA Piper that you work with?

 

Judge Andrew Peck: You know, I should know our statistics better than I do, but I believe it’s about 250 lawyers in the New York office and obviously support staff as well.

 

Sean La Roque-Doherty: Very good. So back on track here, as a Magistrate Judge, you handed down critical decisions that forced the bench and the bar to mind electronic discovery, those cases are noted by every e-discovery legal professional. What comes to my mind are Fischer v. Forrest and Hiles v. New York City, Rio Tinto and Da Silva Moore. Now you practice what you opined. How did these rulings work from the other side of the bench and how have you used your expertise to direct DLA Piper’s e-discovery practice?

 

Judge Andrew Peck: I try to be consistent and even though obviously as a judge I was coming from a neutral position and now cases at DLA, we tend to be representing the defendant, nevertheless I still believe in the things that I preached about from the bench such as cooperation in discovery.

 

Of course what I am learning is it takes two to cooperate and if it’s an asymmetric case, where the plaintiff side has very little discovery to provide and it uses discovery as a way to, shall we say, torture the defendant, that’s a problem, and it’s harder to be as cooperative.

 

I have found in some of the cases I have been working with in the last 18 months since I have been at DLA Piper that there are some cases, even asymmetric, where there is a great deal of cooperation from the other side. And particularly I can think of two cases where at least one of the lawyers on the other side was a Sedona Conference member, we knew each other from that, and more important than knowing each other, we knew the Sedona principles and how they should apply.

 

Another case where I was — I am involved, one of the first conferences we had with our side on the phone, with the other side’s myriad lawyers and one of them says to me at the start of that call, you know Judge Peck, we know each other from Sedona Conference meetings and there you were always Judge Peck, but now you are my adversary, I refuse to call you Judge Peck and what should I call you, and I basically said whatever you want.

 

Getting off the phone after that, the lawyers on our side of the case from the other law firms were particularly annoyed at that person for being disrespectful. I was a little more bemused by it. But the other interesting thing is his side did not have him back on any subsequent phone call, so I don’t know what to take from that.

 

More substantively, I think one of the biggest issues is discovery requests and responses, and as you alluded to in Fischer against Forrest, I gave one of my so-called wake-up calls to the Bar of the Southern District of New York and elsewhere of course and explained that Rule 34(b)(2) had been changed by the December 2015 amendments to the Federal Rules. It required objections to be made with specificity and it required one to clearly indicate whether anything was being withheld as a result of objections or not, whether they were just sort of there as a placeholder or whether they were there, meaning that information was not being provided to the other side.

 

I think every lawyer who has ever done anything in discovery knows what the old form of objections and responses looked like. It would be something like this. We object to this specific request for all the reasons in our general objections. In addition, we object that this request is vague, broad, burdensome. We don’t understand what half the English language words you are using mean. Oh yes, if they have updated their form since December 2015, they now throw in and the request is not proportional to the needs of the case. Then there is sort of the pause, and it says without waiver of these objections we will produce what we damn well feel like producing when the court orders us to or hell freezes over.

 

(00:10:15)

 

Now, obviously I took some liberties with the last part of that phrase, but that is what most responses looked like before the December 2015 amendments. They were ridiculous. Judges were fed up with it. It resulted in needless fights. And in Fischer I sort of threw down the gauntlet and said, and if you keep doing that sort of nonsense, I will consider it a waiver of all objections except for privilege. And there were numerous other cases coming out at around that time and since that say the same thing.

 

Nevertheless, we keep seeing in practice, I see it now that that sort of boilerplate response is still much too prevalent.

 

Obviously DLA is a big firm and I can’t speak for every litigator in the firm, but it is my practice in both training colleagues on e-discovery issues and in directly dealing with things to try to eliminate that from our responses often by using the word because. If you just say something is broad, vague, burdensome, it doesn’t say anything. If you throw in the why, it is overly broad because it asks for 25 years worth of data, but we have only been involved in this contract in dispute in the last two years, that helps the court.

 

But one of the things I am finding in practice is where the other side’s requests continue to have 10 pages of definitions and instructions, most of which are contrary to the Federal rules, it’s pretty hard to say we are not going to respond to that with general objections.

 

So, really if I put on a sort of professor hat, it is going to require the requests to be more realistic and proportional and that will enable a responding party to do a better job in responding.

 

Sean La Roque-Doherty: Indeed. I guess we can all look forward to a little bit more specificity there, at least I have — I haven’t thrown away my templates, but I have marked them do not use. But why don’t we see more clients demanding and more counsel requesting the use of TAR instead of keywords in e-discovery?

 

Judge Andrew Peck: That is a very good question and I wish I knew the answer. I mean my Da Silva Moore decision was in 2012, by Rio Tinto, in my decision that was in early 2015, I was able to say analyzing the case law that had come out since Da Silva Moore that by now, 2015, it is Black Letter Law that if the responding party wished to use predictive coding, aka Technology Assisted Review aka TAR, it was free to do so and courts would not in any way object to that.

 

Nevertheless, and I am seeing this in private practice as well as what I saw in the court after 2015, in most cases it is still prevalent to use keywords. I am not exactly sure why. I don’t know whether it’s lawyers are not comfortable with the technology behind TAR, whether clients are not comfortable and are afraid that yes, certain courts have approved it, but not every judge in the world has, and they don’t want to be in front of a Neanderthal judge particularly if something goes wrong, I don’t know. I must say it’s the clients who wind up footing the bill for all of this, they should be pushing it more, but it’s not.

 

But one of the things I am seeing is that TAR is used even in “keyword cases”, it’s just used behind the scenes. So I have seen cases where the parties negotiates the keywords, that becomes what gets the documents, and by documents of course I mean electronically stored information into the vendor system.

 

(00:15:04)

 

And then even with a client or counsel who have said no, we are going to use keywords, not TAR, the vendor then says, by the way, instead of just batching out randomly the next 100 documents to the reviewers, a 100 at a time, we are going to use this analytic tool we have, aka TAR, behind the scenes so to speak and we will use that to send the most relevant likely documents to the reviewers to review and to review similar documents at the same time and all of that. So it winds up that TAR is used sort of, but used behind the scenes.

 

But I certainly do wish and believe that with all this talk in the industry and just in the popular press about “AI”, that is to say artificial intelligence or computers doing more, I am surprised that it’s been such a slow build to use TAR.

 

Sean La Roque-Doherty: Hence, it follows the legal industry I guess. But I guess kind of moving on, since your decision in Anti-Monopoly v. Hasbro, electronic data is discoverable; however, we mostly discover email. Judge Peck, what’s next?

 

Judge Andrew Peck: I think what’s next is already here. Email is largely for old folks, I hate to say that, just like it took a while for people to get comfortable going from writing a memo and sending a letter in the mail with a stamp on it and waiting three to five days and then it moved to email and now younger employees in the business world are finding email to be old and slow and clunky and not the best way to communicate.

 

So we have to recognize and deal with much more, yes email, but also text messages, also various collaboration tools, whether Dropbox or anything else that allow people to interact and collaborate much more quickly. And of course we are faced with, can businesses use the disappearing messaging apps, is that appropriate or is that a sign of something nefarious going on. All of these are new challenges and again we are trying to fit old rules, the Federal Rules of Civil Procedure around newer technology.

 

To a certain extent when I left the bench 18 months ago, it looked to me like in many cases, other than with the most sophisticated counsel, parties were doing what they had done about email back in 2004 or thereabouts, and that is sort of looking at each other, recognizing mutually assured destruction principles and doing the — then it was I won’t ask you for email if you don’t ask me, now it’s, okay, let’s produce email, wink-wink, let’s not talk to each other about text or anything else that’s going to be much more complicated. That really is not the right way to deal with the newer media.

 

And finally, in terms of discovery what we have seen over the last few years is that social media discovery can be very, very useful. It used to be, and the typical slip and fall or other form of case where the plaintiff was saying after this accident or incident, I have been laid up in bed, I haven’t left my house in a year, etc., etc., and the defendant would go out and hire a private investigator hoping to see pictures of the plaintiff waterskiing or doing other physical activity when they are claiming to be bedridden.

 

Now you don’t really need to have that private investigator playing Sherlock Holmes and snooping around, you look at the plaintiff’s social media and you see what he or she has posted or what their friends have posted of current photos that belie their inactivity.

 

(00:19:53)

 

So that wound up for a while sort of leveling the playing field, the old asymmetric case where the plaintiff had no discoverable material and the defendant had it all, then it became okay, let’s get the plaintiff’s social media, they now do have skin in the game. Then of course more-and-more corporations went into using social media accounts to push their product, their brand whatever it may be so they also had social media to deal with.

 

The fun thing about being involved with e-discovery is things are always changing, the rules may or may not change but the technology and what we live with on a daily basis is changing and that makes it interesting and challenging for lawyers who have to deal with it.

 

Sean La Roque-Doherty: Beyond e-discovery how has your judicial experience benefited the work you do as Senior Counsel at DLA Piper?

 

Judge Andrew Peck:  Well, I’ve sort of been branded as the Judge here or Judge Peck, and that perhaps makes the advice I give, listen to some more, but beyond that, which is sort of funny, I have been able to not only work with e-discovery issues but in general be a sounding board for the firm and our clients of how will certain arguments, how will certain things resonate with a Judge, and when it’s a Judge in the Southern District of New York then I could really bring my knowledge of particular judges, but even in general, it is, does this particular argument that we are thinking of making pass the smell test? If it were made to you, Judge, how would you have reacted to it? So that’s one thing.

 

Another is I am a firm believer in giving training and experience to our associates. So one of the programs that I wanted to be involved with here was to take Trial-ready cases in the Southern District in New York where the plaintiff had begun the case pro se and survived discovery and summary judgment motion on their own and now the case was ready for Trial.

 

So I’ve taken one of those already a section 1983 civil rights action brought against two police officers for alleged use of excessive force. The firm agreed to take the case on pro bono when approached by the court’s pro se office and I had three mid-level associates who tried the case in front of a jury in the Southern District of New York, Trial experience that as first chair-type work they each got to do either a director or across or both as well as an opening and a closing.

 

I mean, associates do not get that experience for paying clients in the big firms anymore. So this is a way to train the next generation of potential partners and Trial lawyers, and since as a Judge I was seeing the ever-decreasing level of cases going to Trial. The statistics I believe in the Federal Courts generally are that less than 1% of civil cases ever go to Trial. And as a result of that there are many, many lawyers including partners at major firms who have never tried a jury Trial, and that’s an art and I hate to see it disappearing. So, mentoring young associates in that way is one of the things that I’m very involved in and very — a firm believer in.

 

In addition I have done mock oral arguments and mock Trial situations here for the firm. So we had a few cases last summer going before the Second Circuit for appeal or arguments and I along with some other senior people here served as a mock Second Circuit to see how certain arguments flowed. So, those are some of the things.

 

Sean La Roque-Doherty: Excellent. Those are excellent opportunities for young associates, and I can tell you if I had that mentoring opportunity when I was in a firm I may still be there. So, before we move on, we’re going to take a quick break to hear a message from our sponsors.

 

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Sean La Roque-Doherty: We’re back and we’re just talking with the Honorable Andrew J. Peck Senior Counsel at DLA Piper.

 

Judge, I have found that judges never really stop judging, how have you continued your judicial experience in private practice?

 

Judge Andrew Peck: Predominantly through doing what, as you say, retired judges tend to do, which is arbitration and mediation. So, I’m doing that both directly through the firm. I’ve had a few cases where lawyers who knew me had appeared before me on the bench just called me up and said, can you arbitrate or mediate as the case may be our situation? In addition, I’m signed up with the AAA (the American Arbitration Association), with Federal Arbitration, Inc. and with NAAM (National Arbitration And Mediation) and take arbitration and mediation situations through them.

 

I’ve probably had maybe half a dozen at this point, had a few others where unfortunately one of the drawbacks to being at a big firm is that a partner in our Oshkosh office had done a real estate transaction for someone once three years ago or whatever. And it meant that I was conflicted out of an arbitration possibility, but other than that I’m available for arbitration and mediation through all those mechanisms.

 

In addition, I am available to serve as a court-appointed Special Master. I have been recommended by one side or another in a few cases but have not yet had a Special Master assignment come my way. Now, part of that may be that the Magistrate Judge court was and is still so good in the Southern District of New York that it takes a real lot of fighting over issues before Judges or Magistrate Judges in the Southern District send it out to a special master as opposed to having the judges do it.

 

I will tell one story, we’ll see as it lands on the cutting room floor or not. I was just recommended by somebody I knew through the Discovery Community to be a Special Master in a case in Federal Court in Florida. I believe but I’m not sure that the other side may have been amenable but they have what one might call a protectionist system in that district, and that is to say, just like lawyers who passed the Bar in New York or other states can’t wave into the Bar in Florida in order to be approved as a Special Master or mediator in Florida one has to have gone through certain local courses, which of course means that anyone who is not actively practicing full-time in Florida is not likely to be available because they will not have that background. So protectionism is still at work in Florida.

 

Sean La Roque-Doherty: I’ve heard you speak at many conferences on the topics of e-discovery and legal technology, do you continue to lend your expertise and experience as a speaker?

 

Judge Andrew Peck: I do and that was one of my conditions in coming to DLA is I wanted to continue on that speaking circuit and not only was the firm agreeable, they were very supportive. It’s obviously good marketing for me and for the firm. So I’ve continued with most of the ones that I have been involved with over the years, the Sedona Conference for example, the e-discovery Institute at Sedona I have been and still am on the Working Group, on the discovery part of Sedona, the steering committee for that group and have attended every one of their meetings.

 

In addition then some new ones just come out of thin air. I was invited by the Government of the United Arab Emirates to go to Dubai at their expense this past  year to speak at a part of their Global World Forum and the part was a breakout group of sessions on AI (Artificial Intelligence)

 

(00:30:19)

 

And, because of my judicial opinions that you’ve mentioned that had to do with the approval of the use of predictive coding, also known as TAR, they invited me and I went over, had never been in — not only had never been in Dubai or the UAE, I had never been anywhere in that area of the world and it was a fascinating experience.

 

Sean La Roque-Doherty: If we only talked about the law and e-discovery, our listeners wouldn’t know the Judge at DLA Piper. What takes you away from private practice?

 

Judge Andrew Peck: Well, every Saturday during the season when there is a Yankee home game, you will find me at Yankee Stadium. I am a long-term — maybe it’s because I grew up in the Bronx, but I’ve always been a Yankee fan and I’ve had a Yankee Saturday season-ticket mini plan for — I don’t know maybe 10 years now.

 

Indeed if anyone had come to my chambers in the courthouse or come to my office at DLA, now you will see my two chairs that I won at auction from the old Yankee Stadium from the 1970s renovation of the stadium as well as various other tchotchkes and the like about the Yankees. So that’s one.

 

The other, you may have noticed I snuck in a reference to Sherlock Holmes earlier in our talk, I have been a member of The Baker Street Irregulars since the early 1970s, The Baker Street Irregulars being the US-based but international Sherlock Holmes Literary Society and one can’t just join The Baker Street Irregulars, yes, one can subscribe — anyone can subscribe to their magazine, ‘The Baker Street Journal’, and go to some other functions, but to actually say one is a Baker Street Irregular you have to be invited to join based on your service to the cause so to speak, and I’ve been involved in that for a very, very long time and much to my wife’s aggravation have eleven bookcases full of Sherlock Holmes books in our apartment, and one might ask there are only 60 Sherlock Holmes stories, how do I fill eleven bookcases to which I guess the answer is, you’d be surprised, but it includes first editions of the stories, it includes the magazine appearances.

 

After the first two Sherlock Holmes novellas most of the stories appeared in ‘The Strand Magazine’ in England and the US version of ‘The Strand Magazine’ as short stories, monthly sort of installments, I have most but not all of those. Then there are all of the commentary volumes about Holmes as well as parodies and pastiches etc., etc., etc. So I am very active in Sherlockian activity.

 

And then, of course, there is family. My wife and I are extremely happy and pleased that this November our son is getting married. We really like his fiancée, we’ve known her for a while now. They have been going out for way too long perhaps, but are finally getting married. We like her parents. So it’s all terrific.

 

Sean La Roque-Doherty: Well, congratulations on that, Judge.

 

Judge Andrew Peck: Thank you, Sean.

 

Sean La Roque-Doherty: And do you want to share actually where that ceremony is going to take place, because it’s not in your hometown?

 

Judge Andrew Peck: Well, it’s in Brooklyn and I know you live in Brooklyn, Sean, having grown up in the Bronx, I am much less familiar with Brooklyn. My wife grew up in Brooklyn and we sometimes joke about we’re a mixed marriage because Bronx and Brooklyn are like two different worlds, but yes, even though David, our son, lives on the Upper East Side currently, he spends a lot of time in Brooklyn and so they have found one of these former warehouses that’s now a party space in Brooklyn and that’s where the wedding will be.

 

(00:35:08)

 

Sean La Roque-Doherty: Well, very good. Well, although different worlds, they all come together at some time.

 

So Judge, how can listeners get in touch with you, and when they do, should they still call you “Judge Peck”?

 

Judge Andrew Peck: I guess, once a Judge always a Judge and it can never go wrong calling somebody “Judge” or “Senator”. We have Senator Mitchell here at the firm, and yes, he’s referred to as Senator Mitchell.

 

So “Judge Peck” is always fine and except for people who’ve known me for a million years or whatever it may be. I’ll answer to almost anything, but you can’t go wrong with the title.

 

As to how they can get in touch with me, obviously you can go to the DLA Piper website, but for those listening, my email is [email protected], and my office phone number is (212)335-4631, again, (212)335-4631, and [email protected], and I would love to hear from people, particularly potential clients.

 

Sean La Roque-Doherty: Well, thank you for your time, Judge Peck. It’s been an interesting conversation and I look forward to our next one.

 

This has been another edition of Law Technology Now on the Legal Talk Network.

 

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Join us in the next edition of Law Technology Now. I am Sean La Roque-Doherty, and we are signing off.

 

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