Controversial Case Sets New Limits For Electronic Discovery

July 2007

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In a detailed 35-page ruling, the United States District Court established new grounds for the scope of electronic discovery under the new federal rules covering electronic discovery. The case illustrates the wide range of electronic discovery and preservation that might be permissible under the rules. The case is currently under appeal. However, even if overturned, the Court’s detailed discussion will be helpful to those fashioning arguments for additional electronic discovery.

Specifically, the Court ordered that the contents of random access memory (RAM) be permanently recorded, preserved, and produced. The case is Columbia Pictures vs. Burnell, Case No. CV 06-1093 in the Central District of California.

In other circumstances, we have previously commented that many complaints over electronic discovery difficulty are overstated. However, we never expected that electronic discovery preservation would go as far as this case requires, or be so potentially disruptive. Information technology professionals are uniformly concerned that a broad implementation of this ruling in other matters will require substantial additional investment in hardware to avoid computer performance deficiencies, and will greatly increase the cost of litigation.

The case involves allegations of copyright infringement by the Motion Picture Association of America against TorrentSpy, a popular internet file-sharing service. The suit is based on theories of vicarious copyright infringement, contributory infringement, and inducement. Plaintiffs contend that the Defendants’ users were illegally downloading their copyrighted materials based on information from TorrentSpy’s website. Notably, TorrentSpy does not itself store the copyrighted materials. Instead, TorrentSpy provides information as to where these materials can be obtained, usually from computers of individuals located around the world. In this situation, Plaintiffs wish to know what is being shared over the internet and by whom, even though Defendants purposefully chose not to record this data.

What is RAM?

RAM can be thought of as the computer’s short-term memory. It generally holds active program instructions and data being actively worked on. Any program instructions or data stored in RAM can be accessed more quickly than other storage. RAM usually consists of integrated circuits on (or plugged into) a computer’s motherboard. RAM allows the stored data to be accessed in any order (i.e., random) and without the physical movement of the storage medium or a physical reading head. RAM contrasts with storage mechanisms such as tapes, magnetic discs and optical discs, which rely on the physical movement of the recording medium or a reading head.

RAM contents are changed constantly as a computer implements instructions. Most “current” computers have around 1 gigabyte (GB) of capacity, although servers and high-performance machines usually have considerably more. Attempting to record a GB or more of memory that is in constant flux would be an extremely difficult task – a task that no one until now has contemplated doing in a litigation context.

Most types of RAM lose their data when the computer powers down. For this reason, most people do not think of RAM as being part of a computer’s storage.

How Did the Court Arrive at this Result that RAM Contents Must be Produced?

What the Plaintiffs really wanted were web server logs. Web server logs are records that keep track of users’ web access and requests. Webmasters sometimes desire this information as a means of understanding the effectiveness of a website. As with most web servers, the Defendants’ servers have the ability to gather this data. However, before the start of any litigation, the Defendants purposefully turned off these logs in order to (i) limit storage, (ii) improve computer performance/speed, and (iii) not record data that Defendants contend is private and confidential.

Even when the web log functionality is not turned on, the related data resides in RAM for a limited period. In a creative argument, the Plaintiffs claimed that, even though the web logs were not activated, the Defendants nevertheless have a duty to preserve the same information while it is in RAM.

The Court endeavored to follow the new rules of civil procedure for electronic discovery. After noting that the data in question is highly relevant, the Court concluded as follows:

1. The data in question is electronically stored information. According to the Advisory Committee notes to the 2006 Amendment of Rule 34,

“Rule 34(a) applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be stored and examined.”

Further, the same notes indicate that Rule 34(a) (1)

”is expansive and includes any type of information that is stored electronically… [and] is intended to be broad enough to cover all types of computer-based information and flexible enough to encompass future changes and development.”

Defendants argued that RAM is not “stored and examined,” and is not “tangible,” but the Court concluded otherwise.

2. Requiring preservation of this data is not tantamount to requiring the creation of new data. Rule 34 only requires a party to produce documents that are already in existence. Although the Defendants could enable web logging that would capture the desired information, the Defendants elected not to do so before the litigation began. Consequently, the only place that the data exists (albeit only temporarily) is in RAM. The Court concluded that the short period in which the data is stored in RAM did not mean that the data did not exist. If it exists, a preservation order could properly be issued.

3. Capturing and preserving this data is not burdensome. Capturing data from RAM would ordinarily be quite difficult. However, in this case, capturing the additional data is not difficult because the existing web server software has this capability pre-programmed. The problem is simply that Defendants purposefully did not activate the feature. Because Rule 34 cannot require new data (see #2 above), the Court concluded that if the Defendants did not want to turn on the logging feature (which would be relatively easy to do and store), the Defendants could also write a script that would not be cost prohibitive. Since no one is really going to do this customized programming, for all practical purposes, the Court required the server log settings to be changed.

The Court noted that the parties offered drastically different views of the amount of the data in question. Defendants indicated that the data to be preserved was 30 to 40 gigabytes a day. Plaintiffs’ expert testifies that the data would be 300 to 400 megabytes a day. Even at Plaintiffs estimates, this is a considerable amount of data when the additional storage will occur over a lengthy period.

For all practical purposes, the Court wanted the Defendants to store additional information that was relevant to the case, and it used the analysis of RAM storage as a means of forcing a change in the Defendants’ established pre-litigation storage practices. The Court appeared to acknowledge the unusual nature of this situation and that the Court did not intend to establish larger precedents. Specifically:

“The court emphasizes that its ruling should not be read to require litigants in all cases to preserve and produce electronically stored information that is temporality stored only in RAM. The court’s decision in this case to require the retention and production of data which otherwise would be temporarily storied only in RAM, is based in significant part on the nature of this case, the key and potentially dispositive nature of Server Log Data which would otherwise be unavailable, and the defendants’ failure to provide what this court views as credible evidence of undue burden and cost.”

In short, it appears the Court fashioned what it considered a justified answer using unconventional logic. Although the concept of storing RAM has plenty of problems, turning on a pre-programmed option to record web logs is fairly simple. However, if the case’s concepts are applied to broader circumstances, electronic discovery practice and costs will change considerably.

Fulcrum Inquiry provides electronic discovery and computer forensic services.