February 12, 2009 | By michael

RAM, Litigation, and Battlestar Galactica

Fans of the Sci Fi channel's "reimagined" version of Battlestar Galactica (BSG) all know that the only reason the human warship Galactica survived the initial attack by the Cylons was that it was an old ship using old technology. The Cylon attack crippled the modern systems of the rest of the colonial fleet, leaving them helpless. Galactica survived, and has defended the few humans who survived the Cylon attack ever since. (Good thing, too, because otherwise there wouldn't be much of a television show.)

Curiously, a California federal court's order from 2007 has threatened to make new technology a liability in discovery proceedings in litigation, much the way new technology doomed so much of the human fleet on BSG. In the movie studios' lawsuit against TorrentSpy, a magistrate judge (and later a district court judge) ordered TorrentSpy to start logging, retaining, and giving to the movie studios the IP addresses of TorrentSpy users—information that TorrentSpy had previously held only temporarily in RAM. The order was based on 2006 amendments to the federal rules of civil procedure that talk about how parties should exchange "electronically stored information" during discovery in court cases. The judge and magistrate judge both concluded—erroneously—that data in RAM is "electronically stored information" that is potentially subject to discovery.

To understand what is wrong with that view, it's important to look at the purpose behind the 2006 amendments. Those amendments were intended to place electronic information on equal footing with old-school paper documents and the like. The district court's order threatens to do exactly the opposite. Do you have a digital phone system? Well, then your conversation will temporarily exist as RAM data that you might be required to produce in litigation. If you have an analog phone system, though, there would be no such obligation. How about security cameras? (For present purposes, let's assume the cameras are used just for real-time monitoring, and thus are not recording videos for later review.) Digital? You better talk to your lawyers. Analog? Oh, no issue. Given the ubiquity of digital technologies and the use of RAM in most if not all of those technologies, the potential reach of the district court's order is breathtaking.

In an amicus brief filed in the appellate proceedings today [PDF], EFF, the Center for Democracy & Technology, and Public Knowledge urge the Ninth Circuit to overturn the district court's conclusion that data held solely in RAM is subject to discovery. Although this is not the central issue in the appeal, it's one that threatens to mislead other courts and to sow uncertainty for counsel. (EFF, CDT and PK take no position on the central issue in the appeal, which is whether the district court acted within its authority when it ordered "terminating sanctions" against TorrentSpy based on alleged discovery abuses, and when as a result it entered a massive default judgment and permanent injunction against TorrentSpy.)

The privacy implications of the district court's order are also disturbing. TorrentSpy was ordered to log, retain, and turn over IP addresses of its users, which happened to be in direct violation of TorrentSpy's privacy policy. It makes little sense to grant courts the power to make such invasive orders in the name of discovery simply because the data in question happened to be stored in RAM rather than some ephemeral analog form. And it would be a shame if procedural rules in court suddenly made it a good idea to rely on out-moded analog systems instead of digital ones, simply to avoid discovery costs.

Here's hoping the Ninth Circuit follows common sense as well as the letter and spirit of litigation procedure, and rejects the district court's overly broad definition of "stored information."

So say we all.


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