Is Data in RAM a Document that Must be Preserved and Produced in Response to a Request for Documents?

Torrenstspy appealed today the Magistrate Judge's Log File Order. In a case I am handling we asked the court in our brief to reverse or modify an e-discovery ruling that finds data in RAM to be a document that needs to be preserved and produced in response to a request for documents in civil litigation. Here is an article from Law.com and News.com on the matter.

We argued in our appeal, amongst other things, that:

Torrenstpy has never had server logging turned on and thus log files were never created. The Magistrate committed error when she ordered the creation of log files as it is axiomatic that in responding to a request for documents one need not be compelled to create documents. The Magistrate reasoned that such log file data was in existence as it (or the “HTTP header information”) was present in RAM for a transient moment (like frankly every web server in the world) and then the Magistrate used copyright law to decide in essence that RAM was sufficiently tangible to constitute a document for purposes of preservation duties and production of documents. The Magistrate committed error in finding that RAM was sufficiently tangible to constitute a document for purposes of document production. Transient RAM or “random access memory” is ipso facto ephemeral and there is no reported case in federal civil discovery to support such a radical view that transient RAM constitutes a document for purposes of production.

The privacy issues from a civil logging Order are real in this context - logging would have an enormous chilling effect on site use and the user experience. The good faith nature of this privacy issue can be summed up in one question: What users are going to want to use the Torrentspy.com search engine when they know that Torrentspy.com has been ordered by a Federal Court to log what is in essence user clickstream tied to their IP address?

Respectfully, the Magistrate’s order, “turn on logging” or “write software” amounts to a de facto injunction, without any finding of a likelihood of success on the merits and without any bond – such an injunction order not only violates due process but it also exceeds the Magistrate’s jurisdiction. There are no copyrighted works on the Torrentspy site or linked to by the site and there had been no finding on the merits of infringement or affirmative defenses such as the DMCA - if Torrentspy succeeds in its defense but the Order is not reversed there would be no bond to compensate it for the burdens and the lost users who were chilled from using the site under fear of being tracked and logged.

Such an order is also vastly overbroad as it is designed to turn on logging for “all” site visitors. The plaintiffs sued regarding roughly fourteen US copyrighted works. Initiating a download of a torrent file from a third party server does not demonstrate that the download was successful. According to the evidence even if the torrent file download was successful it does not demonstrate that the torrent file downloader loaded the torrent file into the specialized software program needed to attempt to fetch an audiovisual file or that such attempt was successful or that the user fetched one of the copyrighted works being sued upon.

Such overbreadth of the Order can also be found in that the un-rebutted evidence demonstrated that the vast majority, over 70% of the site visitors to the Netherlands Torrentspy servers are from outside the United States. Over 90% of the bit torrent trackers are located outside the United States. In essence, the vast majority of site visits to Torrentspy.com cannot lead to primary infringements under US Copyright statutes “as a matter of law” as the site visits and such conduct after the site visits occur wholly outside the United States and do not fall under this Court's subject matter jurisdiction.