RAM Is Subject To E-Discovery Under Recent Ruling: Talk With Your Legal Counsel About The IT Issues

Late last year I blogged about the new E-Discovery Rule that took effect on December 1, 2006.
I wrote “The Business Leader Data Retention and E-Discovery Primer” discussing the issues, and I also wrote an article discussing the e-discovery issues for which IT must be involved, “E-Discovery Quagmires.”

On May 29 a significant e-discovery ruling was made in the central U.S. District Court of California that establishes a precedent for interpretation of the E-discovery Rule. The judge ruled that a server’s random access memory (RAM) is a tangible document that can be stored and must be turned over as evidence in a lawsuit involving BitTorrent and 6 movie studios, Columbia Pictures Industries, et al, v. Justin Bunneli.
The lawsuit alleged TorrentSpy was guilty of copyright infringement because it acts as a search engine that sends users to copyrighted video files on the Web. The order has been stayed pending TorrentSpy’s appeal.
Something to note is that the court’s decision found RAM “was sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
If the ruling stands, IT folks will need to think about how they will create procedures and methods for capturing and storing RAM…which is a flow of data constantly changing as the computer is used. IT folks would have to basically put a wiretap on the computers’ RAM.
What was the judge thinking when she made this ruling? What kind of IT background or understanding does she have?
Think about it. If you’re an IT professional, doesn’t this make your head hurt trying to figure out how to accomplish this?
Most organizations do not have the resources necessary for normal business functions and existing regulatory and legal compliance issues.
Another thing to consider is that if this ruling is upheld, it may encourage other lawsuits against employees and/or organizations that use peer-to-peer (P2P) systems, and in particular Torrent systems.
This is definitely a good discussion to have with your legal counsel. Explain to them…in LAYMAN’S TERMS PLEASE; leave what they perceive to be the geek techno-babble at your desk…what RAM is, how it works, and the generally temporary nature of RAM. Look at this case together and talk about how such a suit would impact your organization.
For a nice discussion of this that your lawyer would appreciate, see the Privacy Law Blog posting on this ruling.

Tags: , , , , , , , , , , ,

Leave a Reply