e-Discovery Team ®

The June 20, 2007, blog reported on the Magistrate’s decision in Los Angeles District Court that held, for the first time, that the contents of a computer’s Random Access Memory (“RAM”) memory are discoverable. (The Magistrate’s Order is Columbia Pictures Industries v. Bunnell, Case No. CV 06-1093 (FMC(JCx) (Doc. No. 176)).   The Magistrate’s discovery ruling was appealed to the District Court Judge, Florence-Marie Cooper. Multiple amiciappeared and advanced “weapon of mass discovery” type arguments, urging the court not to interpret “electronically stored information” (“ESI”) under the rules to include RAM. The amici wanted the court to exclude RAM from discovery for several reasons, but primarily because of its “ephemeral nature.” The key issue here is the meaning of “stored.” As my earlier blog pointed out, information can sometimes be stored in RAM for less than one-billionth of a second.   The arguments were all rejected, and Judge Cooper’s  upheld the Magistrate’s earlier Order.  I put up a full copy of the final order here: Order Denying Defendants’ Motion For Review dated Aug. 24, 2007, Columbia Pictures Industries v. Bunnell,Case No. CV 06-1093 (FMC(JCx)) (Doc. No. 254).

Judge Cooper begins by identifying the issue:

At the heart of Defendants’ Motion for Review is the following question of first impression: is the information held in a computer’s random access memory (RAM) “electronically stored information” under Federal Rule of Procedure 34?

The Court then characterizes defendants’ arguments as unsupported rule construction:

Defendants and amici seek to engraft on the definition of “stored” an additional requirement, that the information be not just stored, but stored “for later retrieval.” They argue that “electronically stored information” cannot include information held in RAM because the period of storage, which may be as much as six hours, is too temporary. The Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM. The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.

The court found support for its broad interpretation of ESI in the Rules Advisory Committee Commentary to the 2006 Amendments to Rule 34 (copy included in the Rule 34 Blog Page above). The Commentary explained that ESI was not specifically defined so that Rule 34(a)(1) would be construed “expansively” to “cover all current types of computer-based information, and flexible enough to encompass future changes and developments.”

The court clearly rejected defendants’ and amicis’ position that ESI requires a degree of permanency not found in RAM. The “ephemeral” argument was again rejected on the basis of the old Mai Systems case, which concerned whether RAM could be copyrighted, not whether it could be discovered. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-519 (9th Cir. 1993). The Court did address the fact that some RAM lasts far less than a second. The Opinion only states that in this case the time period “may be as much as six hours.” 

The argument of amici that this ruling creates bad precedent, opening a floodgate of e-discovery, was rejected by simply amplifying a footnote in the Magistrate’s opinion that the ruling only pertains to this case.

In response to amici’s concerns over the potentially devastating impact of this decision on the record-keeping obligations of businesses and individuals, the Court notes that this decision does not impose an additional burden on any website operator or party outside of this case. It simply requires that the defendants in this case, as part of this litigation, after the issuance of a court order, and following a careful evaluation of the burden to these defendants of preserving and producing the specific information requested in light of its relevance and the lack of other available means to obtain it, begin preserving and subsequently produce a particular subset of the data in RAM under Defendants’ control.

Many contend that this does not really address the core concerns of amici, and demonstrates instead a kind of irresponsible naiveté as to the potential impact of the decision. They contend that the general refusal in this opinion to put any kind of time duration requirement on “information” before it is considered “electronically stored information” under the Rules, subjects everyone to the possibility of extremely expensive preservation, search, and production of ephemeral information.

It is interesting to note how the defendants’ website responded to this order. Recall that the effective date of the injunction was postponed until this district court review of the Magistrate’s order. The injunction requires that all user activities recorded in the webserver log be transferred from RAM and produced to plaintiffs. Just after the district court order was entered, but before the injunction could go into effect, the defendants excluded all users from the web whose computers are identified as located in the United States. When you try to use the site to search for any media you are directed to a page with the following message:

Torrentspy Acts to Protect Privacy.

Sorry, but because you are located in the USA you cannot use the search features of the Torrentspy.com website. Torrentspy’s decision to stop accepting US visitors was NOT compelled by any Court but rather an uncertain legal climate in the US regarding user privacy and an apparent tension between US and European Union privacy laws.

We hope you understand and will take the opportunity to visit one of these other fine websites: (omitted)

It will be interesting to see how the plaintiffs and court now react to this development. The latest District Court order notes that defendants’ webservers are now located in the Netherlands. This was the basis of additional arguments defendants made to reverse the magistrate’s orders. They construed Netherlands law as prohibiting the production of the server log data as required by the injunction. The District Court disagreed with defendants’ interpretation of Dutch law. Further, the Court held that even if foreign law did prohibit the disclosure, that would “not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that [foreign]statute.” It appears that this case is far from over, and defendants have already promised to appeal to the Ninth Circuit.

UPDATE: On December 13, 2007, this case came to a sudden end when the trail judge entered a default judgment against defendants for their intentional destruction of electronic evidence. Columbia Pictures, Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 96360 (C.D. Cal. Dec. 13, 2007). The judgment had nothing to do with the RAM memory issues. Instead, the alleged pirate-facilitating-defendants were caught lying under oath, attempting to conceal  incriminating evidence, and sucessfully destroying other evidence that was probably also incriminating.  The full opinion can be downloaded here.

Judge Copper called defendants’ conduct “obstreperous” and concluded that they “engaged in widespread and systematic efforts to destroy evidence,” that severely prejudiced plaintiffs’ ability to prove their case. So as punishment, the Judge took away defendants’ right to trial, and entered a default judgment against them. Defendants’ reply was apparently in Dutch, but can be loosely translated as “Arrr.” All that’s left now is to see if these Jim-Lads will appeal.

For a good blog on this final chapter to the RAM memory case, see Larry Wescott’s blog of February 28, 2008. It will provide the details of this final opinion. For analysis of the entire saga, see the recent BNA article by Bill Hamilton and Martin Jaron, entitled  Battering RAM: Default Judgment Entered in Columbia Pictures v. Bunnell for Defendants’ Spoliation of Evidence.

This entry was posted on Sunday, September 2nd, 2007 at 6:41 am and is filed under New Rules, Search, Technology. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.