<iframe src="//www.googletagmanager.com/ns.html?id=GTM-NQZ8BZF&l=dataLayer" height="0" width="0" style="display:none;visibility:hidden"></iframe>

RAMing New ESI Preservation Obligations Down Litigants' Throats - Columbia Pictures Industries v. Bunnell, 2007 WL 2080419 (C.D.Cal. May 29, 2007)


E-Discovery Alert

September 1, 2007

Perhaps no e-discovery issue has resulted in more discussion and decisional law analysis than the scope of the duty to preserve electronically stored data (“ESI”). A recent decision handed down by the United States District Court for the Central District of California now opens the door to arguments for the need to preserve the most fleeting type of ESI – Random Access Memory (RAM). In Columbia Pictures Industries v. Bunnell, 2007 WL 2080419 (C.D.Cal. May 29, 2007), Los Angeles Federal Magistrate Jacqueline Chooljian concluded that operators of the “TorrentSpy” website are required to create and store all logs of its users’ activities as part of electronic discovery preservation obligations in a civil lawsuit.

In Columbia Pictures, a number of motion picture studios (referred to hereafter as the MPAA) sued defendants who operate the TorrentSpy site, which offers “dot-torrent” files for download by users. The dot-torrent files found on the TorrentSpy site do not contain actual copies of a full-length content item, but instead, contain data used by a “BitTorrent” application running on the user’s computer to locate and download content. BitTorrent is a peer-to-peer protocol used for transferring files. Users connect to each other directly to send and receive portions of a file, and a central server (referred to as a tracker) coordinates the actions of all peers. Under this protocol, once a user downloads a file, the user’s computer becomes another source for other users to acquire all or part of that file, and the more BitTorrent files the user has available for others, the faster that user’s own downloads will be. Since BitTorrent assembles portions of a file from a variety of sources, all at a high rate of speed, BitTorrent downloads have been widely used for films and full-length television programs.

In Columbia Pictures, the MPAA filed a copyright infringement action against defendants alleging that defendants knowingly enabled, encouraged, induced and profited from online piracy of plaintiffs’ copyrighted works through the operation of their TorrentSpy website. However, as the court explained, the relevant claims were contributory in nature since the case “is predicated on theories of vicarious infringement, contributory infringement, and inducement.” Columbia Pictures, 2007 WL 2080419 at *4. The claims were considered contributory because it was not the actual dot-torrent files that were infringing, and because TorrentSpy was not hosting much of the allegedly infringing content.

As part of its discovery requests in the litigation, plaintiffs sought preservation and production of the IP addresses of users who requested dot-torrent files and the dates and time of the users’ requests. Plaintiffs contended that the server log data was discoverable because knowing what requests were made for which dot-torrent files and knowing the IP addresses of the requesting computers could lead to the identification of direct infringers, thereby helping plaintiffs to make their contributory case against the TorrentSpy defendants. Defendants maintained that this server log data was not stored on its website, nor in any form from which it could be retrieved, but instead, that the data was temporarily stored as RAM. Additionally, defendants argued that the data was not ESI, and was not within their possession, custody or control. They also claimed that preservation and production essentially required the creation of new data, and that such a requirement was unduly burdensome. Finally, defendants asserted that preservation and production of website user IP addresses raised privacy issues.

The court rejected defendants’ arguments wholesale. It concluded that the server log data stored in RAM was “extremely relevant,” constituted ESI and was within the possession, custody and control of defendants, and held that defendants failed to demonstrate that the production of the data was not reasonably accessible due to undue cost or burden. The court also rejected the defendants’ privacy and First Amendment concerns, concluding that IP addresses could be easily masked to protect the privacy of the web site users. The court further concluded that provisions of the Stored Communications Act, the Wiretap Act, and the Pen Register Statute did not prevent disclosure of the server log data by defendants. Notwithstanding these rulings, Magistrate Chooljian declined to sanction the defendants for spoliation of evidence based primarily on the lack of precedent for her ruling.

While there is no question that the ruling breaks new ground, the Court tempered its holding noting that:

[i]ts 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.

Columbia Pictures
, 2007 WL 2080419, at *13 n.31.

Columbia Pictures has already been the subject of many articles and seminar discussions. Critics of this ruling have claimed that it will require anyone involved in civil litigation to begin preserving and producing ESI stored in RAM. They argue that if upheld, and interpreted by other courts to apply beyond its particular supporting facts, the holding could impose an enormous burden on litigants already subject to expensive discovery requirements, and could mean a significant intrusion into the privacy rights of both litigants and third parties. Indeed, most broadly interpreted and applied, the holding could theoretically reach every function carried out by a digital device, requiring companies to store ESI of all forms, down to keystrokes on a keyboard. Others do not see such a parade of preservation obligation horribles on the horizon, noting the limitation of the holding to the unique facts before the Court.

Magistrate Judge Chooljian has stayed her order while defendants challenge the ruling. The Motion for Review is pending in the U.S. District Court for the Central District of California. We will report on its outcome in a future edition of E-Discovery News.

The link above is reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.