Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Da Silva Moore and the Role of ACEDS
May 17, 2012
You may recall my glum assertion that no one wants to be on the record with respect to the Da Silva Moore case, which has certainly generated more “reality show” characteristics than any case I’ve previously seen.
So it was no surprise when some documents appeared in my Inbox from someone else who doesn’t want to be identified (with good reason), adding to the ever-growing crowd of people who have some knowledge about relevant facts, but due to the toxicity of the case have no desire to have their name affiliated with it.
I have placed a link to the documents I received here.
The documents are these:
- A request made by ACEDS: “Request for Examination of Report Filed by a Judicial Officer or Judicial Employee.” The request is for the reports filed by Judge Andrew Peck and is signed by Robert Hilson who lists his occupation as “legal reporter.” His LinkedIn page shows his occupation as Editorial Director for Association of Certified E-Discovery Specialists at The Intriago Group. This company does not appear to have a website – the URL for the domain name (intriagogroup.com) forwards to Microline PV, which has a holding page as a company funded by U.S. Equity Holdings. On LinkedIn, they have six employees identified, including Mr. Hilson.The Request for Examination appears to have been signed on February 27, 2012 and faxed to the Administrative Office of the U.S. Courts on February 29, 2012.
- A letter from ACEDS, also signed by Robert Hilson, that is dated February 28th, 2012 and was faxed on February 29, 2012, to the Office of the Committee on Financial Disclosure of the Administrative Office of the United States Courts which apparently accompanied the request form and specified that he was requesting "…financial disclosures for 2008, 2009, 2010 and 2011. If possible, please be sure to include all disclosures and/or compensation for “honoraria” and “teaching fees.”"
- A check for $8.20 written to the Administrative Office of the United States Courts dated March 9, 2012 – presumably the request fee. The check came from Verisqil. According to the ACEDS website, “The crucial service that associations formed by Verisqil provide is a rigorous certification process, including a proctored psychometrically-sound examination that validates the specialized knowledge and skills of the specialists who work in the pertinent fields.” Charles Intriago is the co-founder of ACEDS and is listed on the ACEDS Verisqil page.
- The Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification.
- An article which appeared on ACEDS dated April 19, 2012 and captured on April 29, 2012 entitled “Plaintiffs move to recuse Peck in predictive coding case, now suggesting his financial link to Recommind.”
- A detailed timeline entitled “Involvement of ACEDS in Peck Recusal Motion” which was prepared by the person who sent me the documents.
As I have noted previously, a comprehensive assembly of all documents in the case has been prepared by our friend Rob Robinson and is available here. News stories about the case may be found here. Vendors offering technology assisted review may be found here.
As readers will know, I am slow to judge. I determined that I should share these documents because the person who sent them raises questions – and I have some of my own.
First, let me observe that I have been critical of some of Recommind’s actions in the past. I have also expressed some concern about what Judge Peck has said about this case (statements may be found in the Memorandum of Law). Anyone who goes to e-discovery conferences has noted that there is a certain clubby atmosphere between national lecturers and the judges. Though I do not know Judge Peck, I do know Ralph Losey (counsel for the defense) as a friend and colleague and it is impossible for me to imagine Ralph doing anything unethical. But that does not solve the problem of the atmosphere created. And to see Judge Peck and defense counsel on the same panels at multiple conferences talking not about Da Silva Moore, but about predictive coding, which lies at the heart of the case, is disquieting to many. This is why the phrase “appearance of impropriety” is used so often – no impropriety may exist, but perhaps it just doesn’t look right.
I spoke to Charles Intriago on Tuesday about the documents I received. It struck me as odd that ACEDS, a certification body, would aggressively investigate a judge and make a number of calls to vendors inquiring about whether “teaching fees” had been paid to the judge. Several sources have told me that Judge Peck requests reimbursement of travel, hotel and meals (sometimes including his wife) and, frequently, teaching fees of $1500.00.
Epiq Systems confirmed that it paid Judge Peck that amount to speak on a LegalTech panel it sponsored in January. This was stated in the ACEDS article as though it were part of the Plaintiff’s brief, but I do not see it there and think it likely that ACEDS made that call. It is unknown (at least by me) whether other vendors also made payments. I confess I’d like to see Judge Peck’s report on “teaching fees” paid in 2011 and by whom – and would like to know what vendors may have paid “teaching fees” for LegalTech and how much. I understand full well that gossip runs amok in cases like these, but if multiple payments by vendors were made to Judge Peck for his appearances at LegalTech, he would clear the air considerably by being forthright about any payments made to him. I certainly have a feeling that Judge Carter may take an interest in such payments.
Mind you, I am all in favor of judges participating in conferences generally – the situation here is very fact-specific. Canon 4 of the Judicial Code of Conduct specifically blesses such activity. Canon 4(H) also indicates that spousal reimbursement may be appropriate and that compensation and reimbursement of expenses are permitted “if the source of the payments does not give the appearance of influencing the judge in the judge’s duties or otherwise give the appearance of impropriety.” This is where the facts in this case give rise to the possibility that the appearance of impropriety may exist.
Turning now to the other side of the case, I asked Charles why ACEDS was acting as an investigator in this matter, because some folks have suggested that ACEDS is sharing information with the Plaintiffs and vice-versa. The tone of the conversation was not particularly civil – and it takes a lot for me to make even that mild statement. I will attempt to neutrally convey that small portion of the conversation which Charles will allow me to relate. I really wish I could recount the entire conversation but I have to respect the boundaries that Charles set forth.
His major points were these:
- ACEDS has no dog in the fight and doesn’t care who wins this case.
- ACEDS has an obligation to its members to produce news and analysis, which requires investigation of the facts in the case.
- ACEDS provides training and certifications.
- ACEDS provides a community for its members.
I take Charles at his word, but am still perplexed that a certification body would want to be so heavily involv
ed in an investigation of a judge in a very controversial case. Having spoke
n to a number of others, they share my view that the ACEDS reporting has been pro-Plaintiff by any fair reading and wonder why ACEDS seems to take this case so personally. Several of ACEDS affiliate members are temp agencies which represent contract lawyers who do e-discovery review – and their jobs may be threatened by technology-assisted review. Is this a possible motivation?
Another fact of interest: Special Counsel, an e-discovery staffing firm, was highlighted by ACEDS as the first such firm to require ACEDS certification, perhaps buttressing the notion that there may be an interest in slowing the adoption of predictive coding.
Charles appears, according to various Internet sites, to have his fingers in a lot of pies and seems to have business relationships with ACEDS, Verisqil, The Intriago Group, Asset Forfeiture and Recovery Resources, Inc. (originator of the fax transmissions), the International Association for Asset Recovery, Asset Recovery and Risk Associates, Asset Recovery Watch, Inc. and the Association of Certified Financial Crime Specialists. They all appear to share the same street address and suite number. It is interesting that ACEDS, as a certification entity, and Verisqil, which provides the certification process, are really comprised of the same principals. The mission of the Intiago Group, as stated on its LinkedIn page: “The professional team at The Intriago Group create, build and promote certification associations that provide specialized training on legal, regulatory, governmental and technology subjects.” I am not sure what to make of all this, but it is certainly striking.
A colleague said (and I agree) “This case has become a circus – and it is hurting the promise of the new technology.” This is really the point that hits home to me – it is a perfect summary – and a great shame.
Never have I seen a case with such animus. Toxic or not, I hope those who have solid information about this case will step forward. My hope is simply to get this laundry out in the sunshine in a public forum.
What do readers think? Should a certification body be conducting these sorts of investigations?
Do you think ACEDS and the Plaintiffs are working together – and is there proof of that?
Has ACEDS received documents from the Plaintiffs before they were available on systems such as PACER?
Do you have knowledge of teaching fees or honoraria paid to Judge Peck? Do you believe such fees or honoraria create the appearance of impropriety or in any other way run counter to Canon 4 of the Judicial Code of Conduct, which explicitly allows such payments in certain contexts?
Do you share my sense that there is, legitimately, a sense of a cozy atmosphere (however innocent and unintended) between some speakers and judges that might give a party to a lawsuit pause? Do the facts of this case rise to the level of the appearance of impropriety?
I will always (sigh) think of the day that my Inbox caused me to lose most of two days to Da Silva Moore, but I want to conclude by thanking those who spoke to me off-record (and I do understand their reasons). If the facts would all come out (a slim hope of that, I know), the circus could leave town and we could get on with discovering the benefits and limitations of technology-assisted review.
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