© The Medical-Legal News, 2007
• The Gist: This ruling could mean that millions or billions of pages of otherwise-temporary memory must be written to disks constantly and archived.
By Paul Martino
On May 29, 2007, the U.S. District Court of Central California made a ruling in a case involving TorrentSpy. While the ruling at face value may seem simple enough, the ramifications of complying with it may be horrific.
TorrentSpy is accused of copyright infringement in a lawsuit filed last year by the Motion Picture Association of America. The ruling by U.S. Magistrate Judge Jacqueline Chooljian directs TorrentSpy to keep track of the visitors to its web site and turn this information over to the court. The ruling notes that the data in question is extremely relevant, was in the defendant’s “possession, custody and control” and was not “unduly burdensome” to preserve.
All of this seems simple enough, especially since web management software has logging features built in so that visitors can be automatically tracked. TorrentSpy had this feature turned off in the interest of privacy. The real concern here is the basis for this ruling — the ruling states for the first time that “the data in issue which was formerly temporarily stored in the defendant’s web site’s random access memory (RAM) constituted “‘electronically stored information,’” and was “within the possession, custody and control of the defendants.”
In very broad terms, computers have two types of memory: external (permanent memory such as hard drive and thumb drives), and the internal (RAM memory). Previous to this ruling all discovery was focused on the external memory. Documents and email stored on such media were required to be turned over to the court. This ruling appears to make no distinction between electronically stored data in either the external permanent memory or the internal RAM memory — and this raises significant questions.
RAM memory is the “thinking” memory for the computer. It stores the programs and data that the computer is working on at any given moment. Even home and office computers can commonly have one billion bytes (characters) of RAM (one gigabyte). The data stored in RAM can change several billion times per second. Large business servers have many times this capacity. The question is whether companies, large and small, will need to take steps to record and preserve this vast amount of data to comply with the rules of discovery.
To have a small appreciation of the magnitude of the task, let us think what this might require if we were to take and store a snapshot of RAM on a new desktop computer with a gigabyte of RAM. Suppose we decide it is sufficient to take the snapshot 1,000 times a second, not the two billion that might actually be required. Assuming this computer is busy for one day, it would require hard drive storage of 96,400,000 gigabytes for one day. If we were to buy 300 one-gigabyte hard drives (a common size), we would need 28,800 of them for one day.
This ruling still needs to be interpreted and stand up to challenges. I would have to think it would violate the “unduly burdensome” condition mentioned in the ruling. But just in case it does stand up, I am going to buy some stock in a few hard drive manufacturers!
Paul Martino has a masters in mathematical statistics and is the founder of Legal Nurse Systems, LLC, based in Chardon, Ohio,www.legalnursesystems.com.