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U.S. Case Law Update: The Discoverability of RAM
Michele C.S. Lange, Esq. Director, Kroll Ontrack Legal Technologies, U.S.
Electronically stored information (“ESI”) continues to dominate legal jurisprudence in the United States. Probably the most controversial U.S. judicial opinion as of late is the one issued by the Honorable Jacqueline Chooljian, of the Central District of California, in Columbia Pictures Industries v. Justin Bunnell, No. 06-1093 FMC (JCx) (C.D.Cal. May 29, 2007). This case has the U.S. legal technology community mystified and in debate about the accessibility of data that is seemingly impossible to retrieve.
Who are the parties in this case and what are the claims?
In a suit alleging copyright infringement, specifically claiming the defendant enabled, encouraged, and induced profit from online piracy, the plaintiff, entertainment giant Columbia Pictures, sought preservation and production of the IP addresses of users of the defendant’s Web site and the dates and times of the users’ requests. TorrentSpy.com operates as a search engine, searching the web for torrent files that match a keyword search. Torrent files point to other files stored on users’ computers that contain the sought after information but do not contain the information themselves.
What were the defendant’s arguments?
The defendant argued that this server log data was not stored on its Web site or in any form from which it could be retrieved. Instead, this data was temporarily stored in random access memory (RAM) on servers located in the Netherlands and routed through a contracted server. The defendant also argued the data did not constitute ESI, was not within their possession, custody or control that preservation and production was tantamount to requiring the creation of new data, and such an order would be unduly burdensome. Additionally, the defendant argued that the preservation and production of their Web site user IP addresses raised privacy issues.
What was the judge’s opinion on the matter?
Disagreeing with the defendant and ordering preservation and production of the data stored in RAM, the court found that the RAM data was extremely relevant, did constitute ESI, was within the defendant’s possession and control, and the IP addresses should be masked to protect the privacy of the Web site users. The court relied on Rule 34 of the Federal Rules of Civil Procedure combined with case law decided over a decade earlier that categorized RAM as ESI. The court also rejected the defendant’s arguments as to violation of the Stored Communications and Wiretap Acts, holding that compliance with this order provides a complete defense to any civil or criminal action predicated on either statute. Lastly, the court refused to sanction the defendant or require them to pay plaintiff’s attorney’s fees and costs.
What are U.S. legal commentators saying?
Critics claim this ruling will require anyone involved in civil litigation to begin preserving and producing ESI stored in RAM. As RAM is generally overwritten within hours of its creation, this could result in a massive amount of information being stored and produced when relevant in a pending litigation. They also claim that this ruling creates the requirement that parties must generate, preserve, and produce documents not ordinarily maintained for the sole purpose of discovery. Supporters claim courts have long considered RAM electronically stored information and that the ruling will not have an effect on anyone other than people attempting to illegally share files. They also point out that the illegal downloading of copyrighted movies costs U.S. studios more than $2 billion annually. In another camp are commentators who claim this case will not have a widespread impact and that the result was based on the evidence demonstrated by the plaintiffs that the RAM data was overwhelmingly relevant.
What is the long-term impact of this controversial ruling?
While the merits of these arguments are noteworthy, the bottom line is that data accessibility continues to dominate legal technology case law in both the U.S. and the U.K. Legal professionals and technologists alike will want to stay tuned as the arguments in this case and others in the future continue to unfold relating to RAM data and its impact on litigation.
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