Judge Scheindlin entered a second amendment to the Pension Committee opinion today, May 28, 2010. Here is the entire text of the Order:
The Amended Opinion and Order filed January 15, 2010 is hereby corrected as follows:
At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.
See the attached for the original this Order dated May 28 2010. The significance of this change is obvious. It no longer says all employees, just those with an involvement, which I think is obviously what she meant all along. It also changed “likely constitutes negligence,” to “could constitute negligence.” The word “could” makes a big difference. Thank you Judge for clarifying this and stopping the misuse of your earlier opinion. We can all shorten our pole vaults a tad now. See: Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation.
By the way, I heard this correction came about as a result of a question asked by someone of Judge Scheindlin at a CLE this week. Anyone care to come forward with the details, please leave a comment below. You can be anonymous if you want.
[…] to her opinion in an amendment dated May 28, 2010. We owe a hat tip to Ralph Losey for posting his update about Judge Scheindlin’s amendment on his e-Discovery Team blog. Here is the amendment in its […]
I believe it was Jeff Jacobson from Debevoise & Plimpton. He engaged her on the issue, and they debated what her order said. He read it to her. She changed it.
Late to the game here, but yes. This occurred at the ABA E-Discovery program in Washington, DC on May 27, 2010. When he read that passage to Judge Scheindlin, she said that was not what she intended to say. The order revising the opinion came out the next day.
[…] Id. pg. 1. She then goes on to qualify that although perfection is not required, reasonable efforts are required, and the standards for acceptable practice have evolved quite a bit since she wrote Zubulake. See Eg. Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation. Also see: BREAKING NEWS: Judge Scheindlin Amends Pension Committee Again. […]
[…] We also discussed the amendments, not to the FRCP, but to Judge Shira Scheindlin’s Pension Committee case. Ralph broke the news of the last amendment on his blog. […]
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