Court Ruling Could Have Major Impact on E-Discovery

 
 
By Chris Preimesberger  |  Posted 2007-07-13
 
 
 

Court Ruling Could Have Major Impact on E-Discovery


A court date of July 16 has been set for the first appellate hearing in a lawsuit that may have a long-term bearing on whether data residing temporarily in a computers RAM—and not as files in regular disk-drive storage—is deemed eligible for e-discovery in litigation.

Currently, under Rule 34 of the Federal Rules of Civil Procedure (PDF), data described as "electronically stored information" is eligible for e-discovery for litigation purposes.

At the crux of the issue is whether computer-generated log data, kept in RAM temporarily until overwritten or until the computer is shut down, is considered "electronically stored information" under the federal rules.

The case is Columbia Pictures Industries v. Justin Bunnell, pending in the U.S. District Court for the Central District of California (Los Angeles). The Motion Picture Association of America—which owns no copyrights but offers support to its members—is backing Columbia Pictures with its own legal team.

Bunnell is the founder of TorrentSpy, a search engine similar to YouTube that indexes and presents videos available to the public using the BitTorrent file-sharing protocol. BitTorrent, created by entrepreneur Bram Cohen, is an open-source software application that enables fast downloading of large files, such as audio and video.

Users of TorrentSpy at first put up only homemade films, copies of television and news shows, and other innocuous videos. In fact, Cohen struck an agreement with the MPAA in November 2005 to bar users of BitTorrent from trading unauthorized copies of materials owned by the members of the MPAA, which includes virtually all the major motion picture studios.

But the BitTorrent-MPAA policing on Internet sites—including TorrentSpy—didnt work. When copyrighted movies and other commercial videos began showing up on the site and were made available for download, TorrentSpy was sued in February 2006 by Columbia Pictures for copyright infringement and accused of contributing to the theft of feature films.

A May 29 ruling by Los Angeles federal magistrate Jacqueline Chooljian against TorrentSpy would require TorrentSpy—and potentially all Internet search engines if the ruling stands—to create and store all logs of its users activities as part of electronic discovery obligations in a civil lawsuit.

A recent survey found that schools are at risk for e-discovery-related litigation. Click here to read more.

TorrentSpy said in court documents that it has never logged its visitors IP addresses because the practice is contrary to its own privacy policy. Nonetheless, Chooljian ordered TorrentSpy to activate logging and to turn the logged data over to Columbia upon its request.

On June 8, Chooljian put aside her May 29 ruling to allow TorrentSpy to present its appeal, which will be heard July 16 before Judge Florence-Marie Cooper.

"TorrentSpy blatantly contributes to, profits from, and induces massive copyright infringement," Elizabeth Kaltman, communications director of the MPAA, told eWEEK. "Here, the court found that the server data was itself critical evidence. The server log data would show the number of requests for Torrent files corresponding to the studios works, and the dates and times of such requests, which demonstrates exactly how TorrentSpy is used to facilitate massive copyright infringement.

"Under the courts order, all private identifying information is kept private: IP addresses will be redacted, and no other personally identifying information will be revealed. Contrary to claims made by the defendants, under the courts order, TorrentSpy need not disclose either IP addresses or search queries to the motion picture studios," Kaltman said.

The San Francisco-based Electronic Frontier Foundation and the Center for Democracy and Technology, in Washington, urged the court in a public statement and in court documents to overturn what it calls "a dangerous ruling that would require an Internet search engine to create and store logs of its users activities as part of electronic discovery obligations in a civil lawsuit."

Next Page: The ruling reaches beyond the Internet.

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"This decision could reach every function carried out by a digital device," said Fred von Lohmann, a senior staff attorney with the EFF. "Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information. There is no reason why the rules should be different simply because a company uses digital technologies," von Lohmann said.

Von Lohmann told eWEEK that he is hopeful—and believes it is likely—that the magistrates ruling will be overturned.

"This ruling actually reaches beyond the Internet," he said. "Any company that finds itself in a lawsuit could potentially have to retain a lot more documents than they ever thought they might.

"One example I use is if you believe the magistrate judge in this case—that any information that exists in the RAM of a computer potentially must be preserved and produced to the adversary—then what do you do about VOIP [voice over IP] phone systems? Every conversation in an IT-based phone system is going to exist in RAM for at least a split second. Does that mean now that you have to record every phone conversation?"

Instant messaging has become a de facto business tool, as well. "Every instant message communication creates copies at least temporarily. Do we now have to log every employee who uses IM to communicate with anybody inside or outside the company?" von Lohmann asked.

The EFF filed a 26-page amicus curiae (friend of the court) brief (PDF) on behalf of TorrentSpy, drafted by EFF attorney Corynne McSherry, von Lohmann and Palo Alto, Calif., attorney Tom Moore.

"Sheer common sense demands that courts not elide the distinction between ephemeral and stored data," the EFF contended in the brief. "Any construction of the electronic rules that would encompass transient RAM data could easily lead to absurd results."

The MPAA and Columbia Pictures, however, say they are pinpointing TorrentSpy in this case, and no other company or individual.

"The purpose of this lawsuit is to put TorrentSpy out of the business of inducing massive copyright infringement," Kaltman said. "The court order is specifically limited to the facts of this case and does not break any new ground. The concept of RAM as stored information is well-established under the law. This is not the first time that RAM data or issues have been used in civil litigation .... Any other decision would allow blatant infringers to dictate what evidence they have to produce simply based on where and how they choose to store it."

The courts decision is carefully tailored to this case and does not mean that every company faces the same preservation obligation, Kaltman said.

Von Lohmann and the EFF arent so sure that the ramifications of this ruling would be limited to TorrentSpy, Columbia Pictures and the MPAA.

"The expense of being in litigation is already so staggering for big companies that have these obligations to retain potentially millions of documents, that if the ruling stands, this could potentially make that even more expensive for them," von Lohmann said. "Its a mistake to view this case as being just about the Internet. I dont think it is, but potentially it could have implications for a lot of companies in a lot of arenas. Everyone uses digital technology now, so were all in it together."

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