On May 29, 2007, the U.S. District Court for the Central District of California, Magistrate Judge Chooljian, found that a computer’s RAM (random access memory), is a tangible document that can be stored and must be turned over in a lawsuit. Because this order prohibits the Web Site from tossing RAM relevant data, it has potential to effect the way future litigants prepare for E-Discovery. It should be noted, however, that this order is currently stayed pending appeal.
Last year, the Motion Picture Association of America (“MPAA”) filed suit against TorrentSpy for copyright infringement. The MPAA believes TorrentSpy acts as a search engine to aid users in finding copyrighted video files thereby contributing, promoting and profiting from piracy.
Because of the nature of these businesses, the court found that TorrentSpy’s RAM contains data relevant to the litigation, and should thus be turned over. In addition, the Judge also ordered TorrentSpy to begin logging and storing user information, but allowed encryption of the Internet Protocol addresses belonging to the visitors of their website. TorrentSpy must now create documents not in the ordinary course of their business by logging user activity. Because this issue was of great concern, the court also questioned whether requiring the defendants to preserve and produce this server log data was equivalent to the creation of new data, and found that it was not, because the information at issue was already in existence – and it is in the defendant’s control and possession. As such, the court held that the order requiring defendants to preserve and produce the info was not tantamount to requiring the creation of new data. Torrent Spy must turn over all of this data to the MPAA.
This order raises several technical E-Discovery concerns. The Court granted this order in belief that the RAM is a tangible document that can be stored. While it is true that RAM can be stored, it is not permanent storage. RAM is continually being updated, changed, deleted, or overwritten in your business’ computers. For example, TorrentSpy’s RAM servers were, in the normal course of business, being overwritten approximately every six hours. Preserving and backing up this ever-changing data surely has the potential to economically cripple businesses, both small and large. In addition, because the nature of RAM is to continually change, spoliation of evidence may be a serious concern. It should be noted however, that this order does not require TorrentSpy to go back and recreate RAM’s past server logs, but rather, to begin storing the RAM server log data from this point forward.