Electronic discovery: 2006 amendments to the Federal Rules of Civil Procedure.

(81.) ADVISORY COMMITTEE REPORT, supra note 79, at 21.

(82.) ADVISORY COMMITTEE ON THE FEDERAL RULES OF CIVIL PROCEDURE, EXCERPT FROM THE REPORT OF THE JUDICIAL CONFERENCE, 5-6, (September, 2004), available at http://www.uscourts.gov/rules/supct1105/Excerpt_STReport_CV.pdf

(83.) Brad Benz, E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today, ELECTRONIC DISCOVERY LAW, Dec. 1, 2006, http://www.ediscoverylaw.com/2006/12/articles/news-updates/ediscovery -amendments-to-the-federal-rules-of-civil-procedure-go-into-effect-today/.

(84.) FED. R. CIV. P. Rule 26(a).

(85.) FED. R. CIV. P. 34(a)(1). But "[ESI can] include email, web pages, word processing files, audio and video files, images, computer databases--virtually anything stored on a computing device--including but not limited to servers, desktops, laptops, cell phones, hard drives, flash disks, personal digital assistants and MP3 players." SEDONA PRINCIPLES 2007, supra note 14, at 1.

(86.) Columbia Pictures, 245 F.R.D. 443 (C.D. Cal. 2007).

(87.) "RAM is used to hold programs while they are being executed, and data while it is being processed. RAM is also volatile, meaning that information written to RAM will disappear when the computer's power is turned off." RedHat, Glossary, http://www.redhat.com/docs/manuals/linux/RHL_6.2_Manual/getting. started-guide/ch-glossary.html, (last visited Jan. 15, 2008).

(88.) Columbia Pictures, supra note 86, at 447 (citing RAM definition found in Random House dictionary and as defined by National Communications System).

(89.) FED. R. CIV. P. 34(a)(1)(A).

(90.) See e.g., Apple Computer, Inc. v. Franklin Computer Corp., 545 F.Supp. 812, 813 (E.D. Pa. 1982) (explaining information stored in RAM is temporary); James Boyle, Intellectual Property Policy Online: A Young Person's Guide, 10 HARV. J. L. & TECH. 47, 90 (1996) (explaining how RAM data is overwritten); supra note 87 and accompanying text.

(91.) FED. R. CIV. P. 26(f).

(92.) Id.

(93.) FED. R. CIV. P. 16(b)(5). The Advisory Committee notes accompanying Rule 16 state that "It]he amendment to Rule 16(b) is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur." Id.

(94.) FED. R. CIV. P. 34(b).

(95.) Id.

(96.) FED. R. CIV. P. 26(b)(2)(B).

(97.) Id.

(98.) Id.

(99.) Id.

(100.) FED. R. CIV. P. 26(b)(2)(C)(i).

(101.) Id. at 26(b)(2)(C)(ii).

(102.) Id. at 26(b)(2)(C)(iii).

(103.) FED. R. CIV. P. 26(b)(5)(B).

(104.) Id.

(105.) Id.

(106.) Committee on Rules of Practice and Procedure Judicial Conference of the United State, Proposed New Evidence Rule 502, (September 2007) available at http://www.uscourts.gov/rules/newrules6.btm#proposed0806.

(107.) Id.

(108.) Id.

(109.) Id.

(110.) FED. R. CIV. P. 37(f).

(111.) Id.

(112.) FED. R. CIV. P. 37 and accompanying Advisory Committee Notes.

(113.) Id.

(114.) Id.

(115.) See Zubulake V, supra note 78, at 432 (stating that an attorney has an affirmative duty to understand its clients systems.) "A 'document retention policy' is generally understood to mean a set of guidelines or rules governing storage and destruction of paper [and electronic] records." COHEN & LENDER, supra note 43, at 4-4.

(116.) SEDONA PRINCIPLES 2007, supra note 14, at 13.

(117.) Zubulake V, supra note 78, at 431-435.

(118.) COHEN & LENDER, supra note 43 at 4-4.

(119.) See Arthur Anderson LLP v. U.S., 544 U.S. 696, 704 (2005) ("'Document retention policies,' which are created in part to keep certain information from getting in the hands of others ... are common in business.... It is, of course, not wrong for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.")

(120.) Zubulake V, supra note 78, at 432.

(121.) In re '318 Patent Infringement Lit., Case No. 05-356 (D. Del. Mar. 1, 2007) (holding that the general description of a claw-back agreement was insufficient to avoid waiver of privilege data after it was inadvertently produced).

(122.) Lorraine v. Markel, 241 F.R.D. 534, 537-538 (D. Md. 2007).

(123.) Id.

(124.) Id. at 537.

(125.) Id.

(126.) Id. at 538.

(127.) Lorraine v. Markel, supra note 122 at 542-543

(128.) Id. at 544-545. FED. R. EVID. 901(b) states:

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. ... (2) Nonexpert opinion on handwriting. ... 3) Comparison by trier or expert witness. ... (4) Distinctive characteristics and the like. ... (5) Voice identification. ... (6) Telephone conversations. ... (7) Public records or reports. ... (8) Ancient documents or data compilation. ... (9) Process or system. ... (10) Methods provided by statute or rule.

FED. R. EVID. 901(b)

(129.) FED. R. EVID. 901(b)(3)) Advisory Committee notes.

(130.) Lorraine v. Markel, supra note 122 at 545-546.

(131.) Id. at 545.

(132.) Id.

(133.) Id. at 546.

(134.) Id. (quoting FED. R. EVID. 901(b)(4)).

(135.) Id. at 546-547.

(136.) Federal Judicial Center, Managing Discovery of Electronic Information: A Pocket Guide for Judges, Federal Judicial Center, 24 (2007).

(137.) Lorraine v. Markel, supra note 122 at 549.

(138.) FED. R. EVID. 901(b)(9).

Damian Vargas, J.D. Candidate, May 2009, Rutgers University School of Law-Newark; B.A. Political Science, Hunter College, CUNY. The author dedicates this note to his parents, Bertila and Abel Vargas, and his sister, Maty, who without their continuing love and support law school would not have been possible. He would also like to thank his better half, Glenda Tulcan for her love and especially her patience. Finally, a special thank you to my close friends from FDR, Murrow, and especially the 230 Crew, for always having my back.

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