Electronic Discovery Law
Information Temporarily Stored in Computer's Random Access Memory ("RAM") Constitutes "Electronically Stored Information" under FRCP 34(a)
Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007)
In this opinion, the district court denied defendants’ motion for review of a prior discovery order that required defendants to begin preserving and subsequently produce certain data held in the random access memory (RAM) of defendants’ computer servers. The court noted that, at the heart of defendants' motion for review was a question of first impression: Is the information held in a computer's random access memory (RAM) "electronically stored information" under Federal Rule of Civil Procedure 34? The court concluded that it is:
Defendants and amici seek to engraft on the definition of “stored” an additional requirement, that the information be not just stored, but stored “for later retrieval.” They argue that “electronically stored information” cannot include information held in RAM because the period of storage, which may be as much as six hours, is too temporary. The Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM. The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.
The court's rationale for the holding was as follows:
First, even the definition amici supplied fails to support their argument that information written to and held in random access memory is not “stored.” As amici explain, according to the Merriam-Webster Collegiate Dictionary, to store means “to lay away, to accumulate or to place or leave in a location (as a warehouse, library, or computer memory ) for preservation or later use or disposal.” Merriam-Webster's Collegiate Dictionary (Frederick C. Mish et al. eds., 10th ed.1993) (emphasis added). It is undisputed that RAM is computer memory and that information held in RAM is held there for later use by the computer (e.g., to be used in tasks performed by software or written to a hard drive, flash drive, DVD, or other more permanent medium) or disposal (e.g., to be erased when the computer is turned off or when the data is overwritten with new information as part of the regular computing process).
The definition of “to store” from the Random House Dictionary of the English Language specific to the context of computers further undermines Defendants' argument that RAM does not store data: “13. Computers, to put or retain (data) in a memory unit.” Random House dictionary of the English Language (Stuart B. Flexner et al. eds., 2d ed.1987) (emphasis added). Under this definition, the information need not even be subsequently accessed or used; simply placing the data in the RAM module is sufficient for it to constitute electronically stored information.
In addition, RAM itself is defined as a storage unit, and, due to its speed relative to hard disk drives, is typically used as the computer's primary storage: “Random Access Memory (RAM): A read/write, nonsequential-access memory used for the storage of instructions and data. Note 1: RAM access time is essentially the same for all storage locations. Note 2: RAM is characterized by a shorter access time than disk or tape storage.” National Communications System, Federal Standard 1037C: Telecommunications: Glossary of Telecommunication Terms (Gen. Servs. Admin., 4th ed. 1996) (emphasis added). Accordingly, information held in RAM is “stored” under the plain meaning of the unambiguous language of Rule 34.
Second, the Notes of the Advisory Committee to the 2006 Amendments to Rule 34, which amended the Rule to make explicit that it authorized discovery of information stored electronically,indicate that the definition was intended to be read expansively to include all current and future electronic storage mediums:
The 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. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail. The rule covers-either as documents or as electronically stored information-information “stored in any medium” to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
Fed.R.Civ.P. 34(a)(1) (2006 amendments) advisory committee's note. Such clear evidence that Rule 34(a)'s scope was intended to be as broad as possible, and cover data stored “in any medium from which information can be obtained,” leaves no room to interpret the Rule to categorically exclude information written in a particular medium simply because that medium stores information only temporarily. Information in the RAM of Defendants' computers “can be obtained” by Defendant. It is undisputed that the Server Log Data Plaintiffs seek can be copied from RAM in Defendants' computers and produced to Plaintiffs. Rule 34 requires no greater degree of permanency from a medium than that which makes obtaining the data possible. As information can be obtained from RAM, it is within the scope of Rule 34 and subject to discovery under the appropriate circumstances.
Finally, as discussed in the Magistrate Judge's May 29 Order, amici and Defendants' argument that data in RAM is too ephemeral to satisfy Rule 34's storage requirement is foreclosed by the Ninth Circuit's decision in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir.1993). To determine if the plaintiff could prevail on a claim of copyright infringement, the court in MAI Systems Corp. confronted the question of whether a program in RAM was “fixed in a tangible medium of expression,” which the applicable statute defined as “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id. at 517-518; 17 U.S.C. § 101. Despite the Copyright Act's explicit requirement that the medium store information with a degree of permanence and for “more than transitory duration,” the court held that a computer's copying of software into RAM was sufficient to meet the statutory prerequisites for liability and affirmed the district court's grant of summary judgment and issuance of a permanent injunction. Id. at 519.
In light of the Ninth Circuit's holding that RAM is a tangible medium, sufficiently permanent to permit reproduction, amici and Defendants' argument that RAM holds data for such a short duration that it is not stored subject to later access and retrieval simply has no merit. Defendants have therefore failed to establish that the Magistrate Judge's legal conclusion that data held in the RAM of computers under Defendants' control is within the scope of discoverable information under Federal Rule of Civil Procedure 34 was contrary to law.
In response to amici' s concerns over the potentially devastating impact of this decision on the record-keeping obligations of businesses and individuals, the Court notes that this decision does not impose an additional burden on any website operator or party outside of this case. It simply requires that the defendants in this case, as part of this litigation, after the issuance of a court order, and following a careful evaluation of the burden to these defendants of preserving and producing the specific information requested in light of its relevance and the lack of other available means to obtain it, begin preserving and subsequently produce a particular subset of the data in RAM under Defendants' control.
(Footnotes omitted.) The court went on to reject the other objections raised by defendants.
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