Preserving & Searching Stored Information on a Computer

Data in RAM is impermanent and may exist for less than a second. In Columbia Pictures Indus. v. Bunnell, the court ordered the defendant to preserve certain data in RAM, which was crucial to the plaintiff's copyright infringement claims. John Rabiej discusses how the court's ruling should be limited to the peculiar facts in the case and should not be viewed as setting a general precedent requiring a party to preserve or search data in RAM. He writes:
                  
     The defendant operated a web site that provided a search engine that could locate, upload, and download files, including digital movies, stored in the computers of persons who were accessing the web server at any single point in time. The web site supported a peer-to-peer network, providing an opportunity for persons to swap files, including movies, without incurring an expense. Motion picture studios, which were suffering major revenue losses from copyright infringements, had successfully taken legal action to suspend the operations of similar web sites in the past. The software programs used in these other web sites contained a logging function that automatically retained certain data in a file, including the IP address of the user's computer and the name of the file downloaded. . . .
 
     Bunnell operated a similar web site, but unlike the others, Bunnell turned off and deactivated the web server's program logging function. Absent the logging data, there was no way to show whether movies were being downloaded and no way to prove a copyright infringement claim. Bunnell argued that there was no preservation obligation to create new data by activating the logging function because the data existed solely in RAM and it was too ephemeral to fall within the meaning of electronically stored information [ESI] as defined under Rule 34 of the Federal Rules of Civil Procedure. Under Bunnell's theory, RAM data could not be realistically “stored” because it was dynamic, possibly existing for less than a second. If the data could not be “stored,” Bunnell contended that Rule 34 would not apply, and he should be allowed to continue to operate the web site. Bunnell also contended that a court's finding that RAM data was discoverable would impose intolerable burdens and costs on parties in all future litigation to preserve and search such data, a virtually impossible task.
 
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     . . . The case provides a good blueprint for parties to follow in future cases in which RAM data may be relevant. The court took special pains to limit the effect of its ruling to the instant facts in Bunnell. In most cases, relevant ESI will be stored in a computer's hard disk drive. Only in exceptional cases, like Bunnell, will RAM information be relevant and unavailable from another source. Though the federal discovery rules do not expressly refer to RAM ESI data, the rules' general provisions provide guidance on how to address such data. In most cases, a party need not search RAM data because it is not reasonably accessible. Only in very peculiar circumstances will a party be obligated to take steps to store RAM data when the party knows or should know that the data is relevant, not available from other sources, and its benefit outweighs the costs and burdens in producing it.