On Mandatory Data Preservation

Despite rulings to the contrary, some electronic data exists in a state that is not easily captured for production, argues attorney Tom Allman. And that's the case for RAM and instant message logs where a party has not elected to routinely store it.

See: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1188378150913

Excerpts:

"When is enough preservation too much? Many legal professionals cringed when Magistrate Judge Jacqueline Chooljian of the U.S. District Court for the Central District of California, held that the duty to preserve required the activation of a logging function to enable the retention of serve log data in random access memory, where the information that would be captured by that step was predictably at the heart of a highly contested copyright infringement case. See Columbia Pictures Industries v. Justin Bunnell, Case No. CV 06-1093 FMC(JCx), 2007 U.S. Dist. Lexis 46364 (May 29, 2007).

Critics charge that the decision misconstrues the intent of the 2006 electronic data discovery amendments to the Federal Rules of Civil Procedure, and presages an unwarranted expansion of data preservation requirements.

At the heart of the complaints about Columbia Pictures is the contention that information in RAM is typically so ephemeral or transitory that it shouldn't be deemed to be "stored" within the meaning of amended Rule 34(a), which applies the discovery rules to "electronically stored information." Chooljian rejected that argument by holding that Rule 34 did, in fact, apply because of a 9th Circuit U.S. Court of Appeals copyright decision holding that information in RAM was sufficiently fixed to constitute more than a transitory existence."