In a recently unsealed order, Central District of California Magistrate Judge Jacqueline Chooljian ruled that data contained in a computer server’s Random Access Memory (RAM) is “electronically stored information” for purposes of Federal Rule of Civil Procedure 34. She also ordered the defendant to begin logging the contents of certain servers’ RAM and producing the logs.
While Judge Chooljian’s ruling raises potentially endless legal and metaphysical questions by opening the door to discovery of data in RAM, she attempted to limit her ruling to the facts in the case before her:
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 temporarily stored only in RAM. The court’s decision in this case to require the retention and production of data which otherwise would be temporarily stored only in RAM, [sic] is based in significant part on the nature of this case, the key and potentially dispositive nature of the Server Log Data which would otherwise be unavailable, and defendants’ failure to provide what this court views as credible evidence of undue burden and cost.
However, this provides little comfort to defendants who may possess in RAM files “key and dispositive” information that is potentially relevant in anticipated or pending litigation. If upheld, and if interpreted by other courts to apply beyond the circumstances of this case, the holding could impose an enormous burden on defendants already subject to expensive discovery requirements, and could mean a significant intrusion into the privacy rights both of defendants and of third parties.
On May 29, 2007, after extensive hearings, Judge Chooljian filed a discovery order in Columbia Pictures Industries, et al. v. Justin Bunnell et al., No. CV 06-1093 FMC(JCx). The entertainment industry plaintiffs accuse defendant TorrentSpy and its principals of copyright infringement based on theories of contributory infringement, secondary infringement and inducement. On March 12, 2007, plaintiffs filed a motion (the “Discovery Motion”) seeking an order requiring defendants to preserve TorrentSpy’s data logs containing information about user requests for “dot-torrent files.” Dot-torrent files essentially are alias files which, when opened, utilize peer-to-peer software to download content, such as movies, from numerous sources at once.
In their Discovery Motion, plaintiffs argued that the data logs were relevant and necessary to proving their claims. More significantly, they asserted that server log data constitutes “electronically stored information” based on the fact that it is copied to the RAM of TorrentSpy’s servers. Defendants argued that the logs were not “electronically stored information” because any such copying was too fleeting to constitute “electronically stored information.” Neither side cited cases in support of their positions.
RAM as electronically stored information
À propos the subject matter of the case, Judge Chooljian drew upon principles of copyright law in concluding that RAM constitutes “electronically stored information” for purposes of Rule 34. She cited MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 51819 (9th Cir. 1993), in which the Ninth Circuit Court of Appeals held that under the Copyright Act, software copied into RAM was “fixed” in a tangible medium and was sufficiently permanent such that it could be viewed or communicated for a period of more than transitory duration. Judge Chooljian then ruled:
In light of the Ninth Circuit’s decision in MAI, and the similarity between the definitions of electronically stored information in the Advisory Committee Notes to Rule 34 and the Copyright Act, the latter of which was at issue in MAI, this court concludes that data in RAM constitutes electronically stored information under Rule 34. Based on the evidence in the record, the court finds that the Server Log Data in this case is transmitted through and temporarily stored in RAM while the requests of defendants’ website users for dot-torrent files are processed. Consequently, such data is electronically stored information under Rule 34.
The ruling also has potentially significant privacy implications. First, the enormous volume of information passing through RAM could render the task of reviewing for privileged and/or private information prohibitively expensive.
Second, the ruling requires TorrentSpy to create, store and produce documents containing logs of user requests for dot-torrent files. These logs document all user requests and include identifying information such as IP addresses. TorrentSpy previously had not utilized the logging features of its server software to keep track of user requests; instead, such requests passed unrecorded through server RAM. Rejecting TorrentSpy’s arguments, Judge Chooljian held that requiring the creation of the logs does not mandate the creation of documents not already in existence. See Alexander v. FBI, 194 F.R.D. 305, 310 (D.C.C. 2000); see also Paramount Pictures Corp. v. Replay, 2002 WL 32151632, *2 (C.D. Cal. 2002) (“[A] party cannot be compelled to create, or caused to be created, new documents solely for their production.”). In reaching this decision, Judge Chooljian relied on her view that, because log data is “temporarily stored” in RAM, the creation of a log reflecting that data is not the creation of a new document.
Judge Chooljian’s decision, one of the first significant discovery rulings to emerge since the amendment of the Federal Rules of Civil Procedure in late 2006 meant to address long-existing e-discovery quandaries, already has sparked debate in legal, security, and information technology circles.