WHAT'S IN YOUR RAM? Inquiring Lawyers Want to Know ......
Let’s talk about Random Access Memory - a/k/a “RAM” – for a moment.
RAM is memory that a computer uses to store things temporarily. It's very volatile, and can often be erased simply by turning the computer off. The contents of RAM are usually overwritten easily, indeed routinely, by normal computer functions. RAM is the electronic equivalent of a yellow sticky pad—no one saves yellow sticky notes for too long.
So let's assume you're being sued in federal court, and you get a discovery request demanding that you reveal the contents of your computer's RAM? What to do?
We begin with Rule 34 of the Federal Rules of Civil Procedure, which allows litigants to request, and receive, information that is "electronically stored". So at the outset, we need to know whether the information stored in RAM is “electronically stored”, or whether the volatility of the data in RAM removes such information from the category of being “electronically stored”.
A recent case in California addresses this issue. In Columbia Pictures Inc. v. Bunnell (decided on 8/24/07), the federal court in the Central District of California held that information held in RAM was “electronically stored” and, therefore, subject to being discovered by the opposing party in the lawsuit.
But given that information stored in RAM is so short-lived, shouldn't the court have held that the information really wasn't "electronically stored" for purposes of discovery? Is information that is "here today, gone in a few minutes" really "electronically stored"?
The court stated that “[t]he wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information.” The court further stated that Rule 34 is “expansive” and is intended to include “any type of information that is stored electronically.”
Bottom line: no matter how short-lived it may be, information in RAM is "electronically stored" for the purposes of Rule 34.
IMPACT
Couldn’t this have a devastating impact on litigants, especially those who rely on technology in day-to-day business practices? Must companies now worry about destroying information in RAM and, if so, must they routinely preserve it?
The court said that its decision would likely not have a devastating impact on companies, because the ruling was essentially limited to the circumstance where (i) the party seeking the records first obtained a court order for the information stored in RAM, and (ii) there were no other reasonable means to acquire the information in RAM.
My thought: Perhaps the court is right, but this opinion should still send chills up the collective spine of companies. I’m not saying it was an incorrect decision—in fact, I think it was correctly decided. But it is a sobering reminder that information could be found anywhere, and companies need to understand the scope of (i) where information can be stored, (ii) how easily it can be destroyed, even accidentally, and (iii) the need to be able to preserve data when a court order requires your company to do so.
ADDITIONAL IMPACT (lawyers, or those interested in the law, keep reading.....)
In this case, the defendant had turned off the logging feature of its servers, and therefore did not have (or save) any evidence of the IP addresses of people who logged on to, or “hit”, the defendant’s servers. The plaintiff argued that even though such evidence did not exist, that type of evidence would be valuable and relevant to the plaintiff's lawsuit. Consequently, the plaintiff asked the court to require the defendants to start logging such information.
If you've handled discovery issues before, you know that this request was extraordinary, in that the plaintiff essentially asked the court to require the defendants to create records that, to date, had never been created before. Put another way, the plaintiff essentially said, "Judge, I know these records don't exist, but we could really use them, so please force the other side to go through the time and trouble of creating new records, and then make them give those records to us." Wow. The court, in a decision handed down in May 2007, agreed with the plaintiff and ordered the defendant to do so.
My opinion: The court’s analysis was correct (see 2007 WL 2080419 for the written decision). Just because a company elects not to create certain electronic documents, a court subsequently can compel that company to do so if (i) it is not unreasonable burdensome or expensive to create such records, (ii) the information cannot be reasonably obtained from other sources, and is not duplicative or cumulative of other information in the case, and (iii) the burden or expense of the proposed discovery is outweighed by the importance of the issues at stake in the litigation.
Thoughts? Something to add? Let me know.......
NOTE: The information in this blog is for discussion purposes only; it is not intended to be, nor should it be considered, legal advice. In fact, it isn't legal advice. The hiring of a lawyer is an important decision that should not be based solely on things you read in a blog, or in a newspaper, or in an advertisement. If you have any questions, you can contact Brad Gross at bgross@becker-poliakoff.com, or call him at the law firm of Becker & Poliakoff, P.A., at 954-364-6044.
NOTE: The information in this blog is for discussion purposes only; it is not intended to be, nor should it be considered, legal advice. In fact, it isn't legal advice. The hiring of a lawyer is an important decision that should not be based solely on things you read in a blog, or in a newspaper, or in an advertisement. If you have any questions, you can contact Brad Gross at bgross@becker-poliakoff.com, or call him at the law firm of Becker & Poliakoff, P.A., at 954-364-6044.
Posted by Bradley Gross at 9/27/2007 1:32 PM 
Categories: E-Discovery,federal rules of civil procedure
Categories: E-Discovery,federal rules of civil procedure
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