Court Ruling Could Have Major Impact on E-Discovery

An appellate court decision could change the way courts and companies view RAM data for litigation purposes.

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.

/zimages/1/28571.gifA 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.

Chris Preimesberger

Chris J. Preimesberger

Chris J. Preimesberger is Editor-in-Chief of eWEEK and responsible for all the publication's coverage. In his 13 years and more than 4,000 articles at eWEEK, he has distinguished himself in reporting...