The Second Circuit wants smoking gun evidence to be recited in the complaints that IBM intended to "further the aims of a brutal regime," but it is unjust to expect the plaintiffs to have such direct evidence at the outset of the case. That is the purpose of discovery. It is IBM that has the private correspondence and other private documentation that proves the state of mind of its U.S. personnel who approved and worked on the South African project. To expect plaintiffs to have access to evidence at the pleading stage that only IBM possesses is unrealistic and unfair.
The plaintiffs have cited in their complaints the available public evidence -- and that alone is sufficiently damning such that the Second Circuit should have allowed the plaintiffs' case against IBM to move forward. Instead, the Second Circuit dealt a huge blow to human rights victims.
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