Magistrate Affirms Data in RAM is Discoverable
District Judge Cooper of the U.S. District Court of California has affirmed Magistrate Judge Chooljian’s finding that contents of a web server’s random access memory (“RAM”) are discoverable. Columbia Pictures Indus. v. Bunnell, C. D. Calif., No. CV 06-1093, discovery order 8/24/07. Defendants had challenged the magistrate’s prior ruling that required a BitTorrent site sued for copyright infringement to turn on the site's logging function and begin capturing and retaining user requests for dot-torrent files. See Columbia Pictures Industries v. Bunnell, 2007 WL 2080419 (C.D.Cal., May 29, 2007).
In this motion, Judge Cooper was asked not to interpret “electronically stored information” (”ESI”) to include data stored in RAM and to exclude RAM from discovery because it is too “ephemeral”. Defendants and amici argued that information held in a computer’s RAM was not ESI under Federal Rule of Civil Procedure 34 because even though it was “stored”, it was not stored for later retrieval because of its very temporary period of storage. The court found this interpretation of “stored” unsupported by the Rule, the Rule’s commentary, or any Ninth Circuit precedent involving RAM. Following the magistrate’s reasoning, the Judge Cooper cited MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993). In that copyright infringement case, the court concluded that software copied into RAM was “fixed” in a tangible medium and was sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. Therefore, Judge Cooper rejected the position that ESI requires a degree of permanency not found in RAM.
Additionally, the court dismissed concerns that this approach would have a devastating impact on the record-keeping obligations of businesses and individuals. The court clarified that the decision's effect is limited to the defendants in the instant case only.
