Is temporarily stored data in RAM subject to eDiscovery?

An interesting case from California was discussed in Law Technology Today involving whether the e-Discovery rules of the Federal Rules of Civil Procedure reach beyond the typically understood types of digital data [e.g., on harddrives, on backup drives, etc.] to the RAM [random access memory] which holds digital data only temporarily. Because of the realities of BitTorrent's file-sharing protocol, the MPAA had to sue on a theory of 'contributory infringement'. And to prove that, the MPAA needed evidence which was stored for only six hours in the RAM of the server. Thus, the quesiton under the Federal Rules is whether this data is "electronically stored information". Because the evidence could only be obtained through preserving and producing the RAM logs and from nowhere else, the magistrate ordered TorrentSpy to preserve and produce those logs. The full discussion at LTT is well worth reading for the details.

An appeal was filed and was heard in mid-August. The magistrate's decision was upheld and the judge adopted a broad reading of "electronically stored information" and upheld the earlier ruling. The positions of the contending parties and the district court's decision is fully discussed at the e-Discovery Team blog.