In early June, the federal court for the Central District of California, in Columbia Pictures Indus. v. Bunnell, Case No. CV 06-1093, issued a ruling requiring a company to store its random access memory ("RAM") data. The ruling came during ongoing litigation stemming from a lawsuit filed by the Motion Picture Association of America ("MPAA"), alleging claims of contributory copyright infringement against TorrentSpy, a popular free file sharing service. The RAM data preservation requirement appears to be an issue of first impression for the courts.
U.S. Magistrate Judge Jacqueline Choolijan held that Rule 34(a) of the Federal Rules of Civil Procedure, which allows for the discovery of electronically stored information, applies to a computer server's RAM data. Although Rule 34 only requires a party to produce documents already in existence, Judge Choolijan drew a distinction between forcing TorrentSpy to create new information and requiring TorrentSpy to store information created by its servers. Generally, when a web server's logging function is disabled, RAM data are purged by the server shortly after they are created. However, Judge Choolijan noted that the RAM data could be saved by requiring TorrentSpy to enable its server's logging function.
Judge Choolijan rejected TorrentSpy's argument that forcing it to store the RAM data would be unduly burdensome based on the added cost storage would require. The judge reasoned that because TorrentSpy does not have to store all of the RAM data it produces, the cost of storage would not be excessive; the only RAM data TorrentSpy must store are the server log data, as they are relevant evidence as to whether TorrentSpy's users are using the file sharing service to illegally download copyrighted material.
Judge Choolijan also rejected TorrentSpy's argument that forcing it to store the RAM data would violate its users' privacy. The judge's ruling requires TorrentSpy to redact users' IP addresses, keeping the users of TorrentSpy anonymous. However, Judge Choolijan also stated that TorrentSpy cannot avoid the order by relying on its own privacy policy, the terms of which are exclusively under TorrentSpy's control.
Judge Choolijan's decision could potentially expand the definitions of what is "reasonably accessible" under Rule 26 to include temporarily stored information, not kept in the usual course of business, and which must be recreated. The court's order requiring preservation and production of the transient contents of computer memory greatly expands the current legal duty to preserve electronic data.
Although the ruling is presently on appeal, if upheld, the effect of broad implementation of this ruling would not only result in e-discovery anarchy, but it could also result in serious computer performance deficiencies and excessive costs to the parties. For example, RAM is ephemeral. It is designed for temporary storage of computer programs and data currently in use. It is therefore routinely overwritten by new programs and data and always deleted when the computer is turned off. RAM is also much faster to read from and write to than other storage devices, such as a hard disk or CD-ROM. Hence, routine copying of RAM to one of these devices will significantly slow the operation of the computer.
Adding to the deficiencies in operation of RAM upon implementation of this order is the fact that there is only a limited amount of RAM available on most computers and it has significantly less capacity than a computer's hard drive. If every computer process written to RAM in the course of normal computer operations were required to be preserved for later production, the sheer act of copying the RAM to another much slower device could cause error messages associated with insufficient RAM. The end result is a significant and noticeable slowing of the computer because the computer does not have enough memory for all the actions it is trying to perform.
This order would also have the obvious effect of increasing the already rising cost of doing business electronically. The storage requirements necessary to meet the court's order would be extraordinary and therefore extremely expensive. It would also be nearly impossible to determine if, in fact, all of the data in RAM had been properly preserved, creating a quality control nightmare.
The ruling may also have a chilling effect on web users who now have even less comfort that personally identifiable information will remain private.
This Alert was authored by Duane Morris eDiscovery Team members Sharon L. Caffrey and Sandra A. Jeskie.
For Further Information
If you have any questions about this Alert or would like more information on eDiscovery, please contact John J. Soroko, John C. Herman, one of the other eDiscovery Team attorneys or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.