Ephemeral Data

One of the most controversial electronic discovery cases in the U.S. in 2007 involved the preservation of ephemeral, or transient, electronically stored information (“ESI”) stored in Random Access Memory (“RAM”). In Columbia Pictures, Inc. v. Bunnell [PDF], 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007), the court addressed plaintiffs’ motion for an order directing the preservation of information in the RAM of defendants’ computers. The court rejected defendants’ argument that ESI included only information stored for later retrieval. Defendants also argued that ESI could not include information held in RAM because the period of storage (less than six hours) was too temporary. The court found defendants’ “interpretation of ‘stored’ unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM,” and specifically found that “Rule 34 requires no greater degree of permanency from a medium than that which makes obtaining the data possible.”

Although the decision in Columbia Pictures is of no precedential import outside of the court in which it was decided, and presents an arguably unique factual situation, it was the first clear articulation by a court that neither the lack of intent to later retrieve ESI nor the short duration of its existence are a bar to requiring preservation. This position is consistent with Principle 8 of The Sedona Principles for Electronic Document Production [PDF] (“The Sedona Principles”), which provides that “[t]he primary source of electronically stored information for production should be active data and information.”

Practitioners should take note of the increasing range of ESI that courts may find subject to preservation requirements, and the potential argument that the decision in Columbia Pictures puts litigants on notice that otherwise ephemeral data should be preserved.

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