Court Orders Preservation and Production of Server Log Data from RAM Citing New E-Discovery ESI Rules

Case: Columbia Pictures Industries v. Bunnell, No. CV 06-1093 (C.D. Cal. 5/29/07)

The One Sentence Summary: Server log data from computer RAM showing user requests for data should be preserved and produced in copyright infringement action.


What They Were Fighting About: Plaintiffs sued Bit Torrent for enabling and inducing copyright infringement with its web site. Plaintiffs sought to require Bit Torrent to preserve and produce server log data from its servers showing IP addresses of users requesting dot-torrent files, requests for dot-torrent files, and the times and dates of the requests.

Central District of California Holdings:

• Server log data in computer RAM which showed web site user file requests was electronically stored information (ESI) subject to production under Rule 34 of the Federal Rules of Civil Procedure.
• The court rejected defendants' argument that they were not required to produce documents that did not exist. The data existed in fixed form in computer RAM and could be produced.
• Defendants had control over the data even though a third party, Panther, operated servers for defendants under contract.
  
• A preservation order for the evidence was justified by the court's concern for maintaining evidence and the irreparable harm likely to plaintiffs if the evidence was not preserved.
  
• A preservation order requiring defendants to preserve and produce the server log RAM data was not unduly burdensome on defendants. Setting the server log switch to log was trivial, and the alternate method of writing a script program to capture IP addresses would not impose an undue burden. Defendants overestimated the volume of server log data by presenting testimony on the logging of all data handled by the server.
• The court rejected privacy concerns raised by defendants because the production order would require masking of user IP addresses.
• Defendants' privacy policy could not stop entry of a preservation order.
• Retention of the server log data would not violate a First Amendment right to anonymous use of the Internet if such a right exists.
• Production of the server log data did not violate the Stored Communication Act, 18 U.S.C. §§ 2701 - 2711, because defendants were the intended recipients of the server requests and could consent to producing it.
• The Wiretap Act, 18 U.S.C. §§ 2510-22, did not prevent disclosure of the Server Log data because the server log was not a transmission, and the statute did not relieve defendants of the duty to preserve and produce the data.
• The production of the server log data would not violate the Pen Register Statute, 18 U.S.C. §§ 3121-27 because the capture of IP addresses by the providers of electronic communications services such as defendants is exempt from the statute.
• Defendants' argument that production of server log data would destroy good will and drive away customers was speculative, and mitigated by the masking of IP addresses in the court's order.
• DMCA subpoenas were not an alternative for getting the data, and plaintiffs were not required to use them.
• Privacy laws of the Netherlands did not prevent preservation and production. The Panther data was in the United States and not subject to Netherlands law. Moreover, the IP addresses did not identify persons as required under the Netherlands law. Finally, a foreign statute did not block an American court from ordering preservation.
• Sanctions under F.R.C.P. 37 were not warranted for defendants' failure to preserve the server log data before entry of this order.