Andrew J. Peck

Senior Counsel

There's nobody who knows the law better.

— peers quoted in Chambers USA

About

The Honorable Andrew J. Peck served for 23 years (from February 1995 until his retirement in February 2018) as a United States Magistrate Judge for the Southern District of New York, including a term as 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 copyright and trademark matters, and also serves as a resource for the firm and its clients on litigation strategy and discovery issues, from a Judge's perspective. Judge Peck particularly advises on innovative and efficient solutions to the challenges of information management, both within and outside the litigation context, including cross-border discovery issues. He frequently speaks at conferences concerning eDiscovery issues. 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 on ediscovery issues.

Judge Peck serves as an arbitrator, mediator, Special Master, and ediscovery expert witness. In addition to serving directly through DLA Piper, Judge Peck is on the arbitration and mediation rosters of the American Arbitration Association (AAA), Federal Arbitration, Inc., and National Arbitration and Mediation (NAM).

Judge Peck is ranked in Band 1 by Chambers and Partners in their 2023 Chambers USA guide in Nationwide E-Discovery & Information Governance. Chambers commented that "He is very knowledgeable on litigation tactics, ESI and much more. He is not only a complete subject matter expert, but he can anticipate what the opposing side will say." The Legal 500 United States 2023 ranked DLA Piper's eDiscovery team in Tier 2 and ranked Judge Peck as a "Leading Lawyer," with client testimonials noting that Judge Peck is "very experienced in handling a variety of e-discovery matters," is "very innovative when it comes to dispute resolution," and "is highly respected in the practice area."

Judge Peck serves as a permanent member on the Steering Committee of the prestigious Sedona Conference Working Group 1 (discovery) as Judicial member emeritus.

Judge Peck is recognized internationally for bringing electronic discovery competency to the attention of both the judiciary and bar. His landmark decision in the 2012 employment class action Monique Da Silva Moore, et. al. v. Publicis Groupe & MSL Group, was the first judicial decision approving the use of technology-assisted review (TAR). By 2015, Judge Peck declared in Rio Tinto v. Valle that it was black-letter law that if the responding party wished to use TAR, courts would allow it. In the third of his trilogy of TAR cases, Hyles v. City of New York, he stated that while he preferred the use of TAR, neither the requesting party nor the court could require a reluctant responding party to use TAR.

On his retirement from the bench, the New York Law Journal in March 2018 called Judge Peck "one of e-discovery's most influential figures." Among the honors he has received, the American Lawyer named him to its list of the Top 50 Innovators of the Last 50 Years as its Judicial E-Discovery Innovator. In February 2022, he was awarded the Honorable Shira Scheindlin Lifetime Achievement in eDiscovery Hero Award, presented by Zapproved (now part of Exterro).

Areas of FocusIntellectual Property Litigation, Arbitration and Investigations eDiscovery and Information Management Trademark and Copyright Litigation

Bar admissionsNew York

CourtsSupreme Court of the United StatesUnited States Court of Appeals for the Second CircuitUnited States Court of Appeals for the Fourth CircuitUnited States Court of Appeals for the Sixth CircuitUnited States Court of Appeals for the Eighth CircuitUnited States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Tenth CircuitUnited States District Court for the Southern District of New YorkUnited States District Court for the Eastern District of New York

EXPERIENCE

Judge Peck's key eDiscovery opinions are:

Fischer v. Forrest, 14 Civ. 1304 & 1307, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017) (Rule 34)
Hyles v. New York City, 10 Civ. 3119, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) (requesting party cannot force responding party to use TAR)
Rio Tinto PLC v. Vale S.A., 14 Civ. 3040, 2015 WL 4367250 (S.D.N.Y. July 15, 2015) (appointing TAR Special Master)
Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015) (black-letter law that responding party can use TAR)
Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) (first judicial decision approving use of predictive coding aka TAR), aff'd, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012)
William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (keyword search)
In re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y 2007) (possession, custody or control; spoliation & adverse inference instruction), aff'd, 2007 WL 1518632 (S.D.N.Y. May 17, 2007)
Anti-Monopoly, Inc. v. Hasbro, Inc., 94 Civ. 2120, 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995) (discoverability of computerized data)

Representative Intellectual Property Decisions

Janik v. SMG Media, Inc., 16 Civ. 7308, 2018 WL 345111 (S.D.N.Y. Jan. 10, 2018) (denial of defendant's motion for prevailing party attorneys' fees under the Copyright Act)
Goldberger Co. v. Uneeda Doll Co., 16 Civ. 4630, 2017 WL 3098110 (S.D.N.Y. July 21, 2017) (denial of Rule 11 sanctions in trademark and false advertising case)
Fischer v. Forrest, 14 Civ. 1304 & 1307, 2017 WL 2992663 (S.D.N.Y. July 14, 2017), 2017 WL128705 (S.D.N.Y Jan 13, 2017) (granting motion to dismiss and motion for summary judgment on copyright, trademark, Digital Millennium Copyright Act and false advertising claims)
Crown Awards, Inc. v. Trophy Depot, Inc., 15 Civ. 1178, 2017 WL 564885 (S.D.N.Y. Feb. 13, 2017) (denial of Rule 11 sanctions in trademark and false advertising case)
Wu v. John Wiley & Sons, Inc., 14 Civ. 6746, 2015 WL 5254885 (S.D.N.Y. Sept 10, 2015) (copyright infringement claim re photographs in textbooks; statute of limitations and damage issues)
Denimafia Inc. v. New Balance Athletic Shoe, Inc., 12 Civ. 4112, 2014 WL 814532 (S.D.N.Y. Mar. 3, 2014) (trademark infringement)
Mahoney v. Sony Music Entertainment, 12 Civ. 5045, 2013 WL 491526 (S.D.N.Y. Feb. 11, 2013) (contractual royalty dispute)
Toto v. Sony Music Entertainment, 12 Civ. 1434, 2012 WL 6136365 (S.D.N.Y. Dec. 11, 2012) (contractual royalty dispute)
Wi-LAN, Inc. v. LG Elec., Inc., 10 Civ. 432, 2011 WL 3279075 (S.D.N.Y. Aug. 2, 2011) (patent infringement, claim construction)
All-Star Mktg. Group, LLC v. Media Brands Co., 10 Civ. 1764, 2011 WL 9381 (S.D.N.Y. Jan. 3, 2011) (statutory trademark damages)
Burberry Ltd. v. Euro Moda, Inc., 08 Civ. 5781, 2009 WL 4432678 (S.D.N.Y. Dec. 4, 2009) (statutory trademark damages)
Mowry v. Viacom Int'l, Inc., 03 Civ. 3090, 2005 WL 1793773 (S.D.N.Y. July 29, 2005) (summary judgment in copyright infringement action; no proof of access or striking similarity)
Revlon Consumer Prods. Corp. v. Estee Lauder Cos., 00 Civ. 5960, 2003 WL 21751833 (S.D.N.Y. July 30, 2003) (patent claim construction)

Education

J.D., Duke University 1977
Order of the Coif, graduated First in the class
Editor, Duke Law Journal

B.A., Cornell University 1974
with honors

[His] 'former position as a US Magistrate Judge, and prior experience as a broad-based commercial litigator, make him a unique asset to clients, who regularly engage him as a special e-discovery counsel’

— Chambers USA

Awards

Bylines

The Sedona Conference TAR Case Law Primer, Second Edition (2023) (Steering Committee Liaison)
The Sedona Conference Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal (2022) (Steering Committee Liaison)
"California Bill Barring Privacy Protections in Litigation Would Have Significant, Negative Consequences," New York Law Journal (August 8, 2022)(with Chris Campbell, Leeanne Mancari and Christopher Young)
ESI Protocols: ESI Tool Turned ESI Problem, SDNY Federal Bar Association Newsletter (September 2021) (with Dawson Horn and David Kessler)
The Sedona Conference Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders (2021) (Co-editor-in-chief and Steering Committee Liaison)
Exterro Case Law Alerts, "Expert Analysis" (periodically)
A View from the Bench and the Trench(es) in Response to Judge Matthewman's New Paradigm for E-Discovery: It’s More Complicated, 71 Fla. L. Rev. F. 143 (2020)
"Defensible Deletion: The Proof Is in the Planning," New York Law Journal (January 29, 2021) (with Jennifer Feldman, Leeanne Mancari, and Dennis Kiker), reprinted in Texas Paralegal Journal, Spring 2022 (vol. 27, #4)
The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition (October 2020) (Co-editor-in-chief and Steering Committee Liaison)
Keeping Civil Cases Civil: A Best Practices Guide From 4 Perspectives, ACC.com (with Vincent Montalto, Cara D. Edwards, and Reyna E. Kessler)
Foreword, TAR for Smart People (3d edition 2018), by John Tredennick
Creating Cooperation in Discovery: Musings on Building Trust, N.Y.L.J. (April 9, 2018) (with Dawson Horn and David Kessler)
Judge Andrew J. Peck, 1 of E-Discovery's Most Influential Figures, Retires from the Branch, by Ian Lopez, N.Y.L.J. (March 5, 2018)
The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests, 19 Sedona Conf. J. 447 (2018) (Judicial Participant)
The Sedona Principles, Third Edition, 19 Sedona Conf. J. 1 (2018) (Judicial Participant and Editorial Style Committee member)
The Sedona Conference TAR Case Law Primer, 18 Sedona Conf. J. 1 (2017) (Judicial Observer)
Foreword, Perspectives on Predictive Coding (edited by Jason Baron, Ralph Losey and Michael Berman), American Bar Association (2016)
The Sedona Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 95 (2015) (Judicial Participant)
Foreword, A Survey of Emerging Issues in Electronic Discovery, 26 Regent Univ. L. Rev. 1 (2013-2014)
E-Discovery: Where We've Been, Where We Are, Where We're Going, 12 Ave Maria L. Rev. 1 (2014) (with Magistrate Judge John Facciola and Steven Teppler)
Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?, Law Technology News (Oct. 2011)

PRESENTATIONS AND SEMINARS

Clerk Experience

The Honorable Paul Roney, United States Court of Appeals for the Eleventh (then Fifth) Circuit, 1977-1978

Civic and Charitable

Baker Street Irregulars and other Sherlock Holmes societies
Mystery Writers of America, Inc. –member; former national Executive Vice President; former President and New York Chapter Board of Directors member
Duke Law School Board of Visitors

Memberships And Affiliations