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1 See Microsoft letter comment to Committee on Rules of Practice and Procedure re: Proposed Amendments to the Federal Rules of Civil Procedure: Electronic Discovery, December 16, 2004, p. 1 available at http://www.prestongates.com/Images/pubs/MicrosoftFRPCComments.pdf

2 3 4 5 Id. at p. 2. Advantages or disadvantages of these proposals other than relating to cost are beyond the scope of this article. See, e.g. Zubulake v. US Warburg LLC et al., 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”) However, see Zubulake v. US Warburg LLC et al., 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”) (A party who reasonably anticipates litigation should not destroy unique, relevant evidence that may be useful to an adversary, even if such evidence exists only on backup tapes if that party can identify where the particular documents are stored on the backup tapes.). It is not clear whether the Zubulake exception would remain intact after this amendment; however it appears that it would not.

6 7 8 See FN. 1 supra, p. 2 Uniform Commercial Code, Article 1, § 1-201 (2001). See Zubulake v. US Warburg LLC et al., 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”) (A party may not, pursuant to its routine operations, destroy unique, relevant electronic data from an inaccessible backup tape if the location of such data on the backup tape is known and the electronic data is not otherwise available elsewhere).

9 See Testimony of Charles Beach, Coordinator, Corporate Litigation, Exxon Mobil Corporation, at Public Hearing On Proposed Amendments to the Federal Rules of Civil Procedure, January 28, 2005, p. 36, available at http://www.uscourts.gov/rules/e-discovery/DallasHearing12805.pdf

10 11 Id. at p. 38. See, e.g., Local Rules of the U.S. Dist. Courts of Southern and Eastern Districts of N.Y. (The term “document” is synonymous in meaning and equal in scope to the usage of the term in F.R.C.P. 34(a), including electronic and computerized compilations); Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000) (computer records, included records that have been deleted, are discoverable under Rule 34); Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL 649934, *2 (S.D.N.Y. 1995) (it is “black letter law that computerized data is discoverable if relevant”).

12 Zubulake v. US Warburg LLC et al., 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”); Zubulake v. US Warburg LLC et al., 216 F.R.D. 280 (S.D.N.Y. 2003) (“Zubulake III”); Zubulake v. US Warburg LLC et al., 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”); Zubulake v. US Warburg LLC et al., 2004 WL 1620866 (S.D.N.Y. 2004) (“Zubulake V”);

13 Data does not necessarily need to be in backup tapes to be “inaccessible.” OpenTV v. Liberate Technologies, 219 F.R.D. 474, 477 (N.D.Cal. 2003) (Court found defendant’s source code “inaccessible” because of amount of time and expense required for extraction even though the source code was not “backed up;” parties ordered to split costs of extracting source code).

14 One common exception is a SEC regulation that requires securities exchange members, brokers and dealers to retain certain records, including e-mails, for a period of six years, the first two years in easily accessible form. See 17 C.F.R § 240.17a-4. In a recent case, a defendant broker-dealer was sanctioned and an adverse inference was ordered because defendant, inter alia, continued its practice of overwriting e-mails after 12 months despite the SEC regulation. Coleman (Parent) Holdings, Inc. v Morgan Stanley & Co., Inc., 2005 WL 679071 (Fl. Cir. Ct. 2005).

Toshiba America Electronic Components, Inc. v. Superior Court (Lexar Media, Inc.), 124 Cal.App.4th 762 (2004). Section 2031(g)(1) has since been re-codified as Section 2031.280. The wording remains the same. See Zubulake III. See FN. 1, supra George Socha, Jr., Socha Consulting, Proactive Discovery Management: A New Best Practice for Electronic Discovery, 2004, available at http://www.zantaz.com/news/resources/proactive_discovery_management.pdf 15 16 17 18 19

20 See Zubulake V (Defendant sanctioned after certain employees willfully deleted e-mails after litigation hold in place).

21 See Jeff Blumenthal, Delaware Law Weekly, Region’s IP Lawyers Consider Offshore Outsourcing, pg. D1 Vol. 8 No. 21.

22 See Jennifer Fried, The Recorder, Outsourcing Reaches Corporate Counsel, August 25, 2004; Karl Schoenberger, Knight Ridder Newspapers, Legal Work Becomes the Latest White-Collar Job Being Offshored, January 18, 2005, available at http://www.southcoasttoday.com/daily/01-05/01-18-05/102ca588.htm.

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