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January 18, 2010

Judge Scheindlin Correction: Pension Committee Opinion

On January 11, 2010, Judge Scheindlin issued a landmark ruling on sanctions - The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al. Lexis was the first to pick up on it and published the Order on January 13th. See:  2010 U.S. Dist. LEXIS 1839. I  wrote a lengthy blog on the new case, which I published on January 17th. Then today, on the 18th, I was just advised that Judge Scheindlin issued an Amended Order on January 15th, which makes several revisions to the original Order.
 
The original order has been withdrawn. I am publishing this information now as breaking news, making EDD the first to get this information out there to interested readers. If you have already read the original order, better now read the second Order specifying the changes. Here is a copy of the actual Amended Order. This is the order you should refer to in the future. No doubt the major legal publishers will catch up with us in a few days and there will be Lexis and West citations for it. But in the meantime you have the official Amended Order here first.

My prior blog has already been revised to incorporate the changes in the Amended Order. Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation.  

One change in the new order was very important, although it was, in my view, more in the nature of a clarification, than a revision. The key paragraph in the decision, which I quote at the beginning of my analysis, could have been interpreted to mean that the failure to preserve backup tapes of key players is gross negligence. I knew it was intended to be limited to situations where backup tapes are the only source of active data, and not just a redundancy for the key player. For that reason, I made no comment in my first version of the blog. Still, I am glad to see the revision that spell out that is indeed Judge Scheindlin's intent. A new footnote 99 was added for the same purpose. 

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