Rambus (RMBS)

[smd1234]

# 1 - not unusual to be done just as he did it

# 2 - the "spoliation by a plaintiff" body of law is much less developed, and remember, this is all judge-made law - no statute exists. I think Whyte wanted a standard
= that fits the legal precedents
= makes real world sense
So he had to listen 1st, and then decide what made good sense.

Oh and by the way, the US v. Arthur Anderson comments from the US SCt, while not leading to a new articulation of a new standard, gave insight into the very practical approach the highest court would use for spoliation/doc retention plans; that case is too recent to have informed the earlier reported cases.

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I would think Whyte would lay down the standard BEFORE the trial begins