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Judge Scheindlin Amends Opinion in Pension Committee Case; Clarifies Scope of Obligation to Collect ESI

By Francis G.X. Pileggi

This update comes to you from Delaware litigator and e-discovery expert Kevin Brady.

On May 28, 2010, Judge Shira Scheindlin issued an Amended Opinion and Order in the case of Pension Committee v. Banc of America Securities, LLC, et al., C.A. No. 05-Civ. 9016 (SAS), clarifying one sentence in her January 15, 2010 decision. The thrust of the change was to clarify one sentence of her original decision which apparently resulted in confusion as to whether parties had to collect information from all employees or only those who had any involvement in the litigation.

Judge Scheindlin changed the following sentence on page 10, line 7-10:  'By contrast, the failure to obtain records from all employees (some of whom may only have a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes gross negligence as opposed to a higher degree of culpability.' The replacement sentence reads: '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 just key players, could constitute negligence.'
 

Read the amended opinion here. Read the Order that highlights the new change in the opinion here. The summary of the original decision is available here
 

Full post as published by Delaware Corporate and Commercial Litigation Blog on June 03, 2010 (boomark / email).