The inevitable e-discovery collision has occurred in the Torrentspy case (entitled Columbia Pictures et al v. Bunnell et al in which the author is defense counsel) between the desire of litigants to procure data that may be available through transient RAM and what in essence constitutes a tangible "document" for purposes of responding to a request for production of documents.
Counsel involved in similar "RAM" e-discovery issues should research and be mindful of the core discovery principals at stake as the e-discovery cases evolve.
It is axiomatic that in response to a request for documents no litigant should be compelled to create, or cause to be created, new documents solely for their production. Federal Rule of Civil Procedure 34 requires only that a party produce documents that are already in existence. Alexander v. FBI (D.D.C. 2000) 194 F.R.D. 305, 310.” Paramount Pictures Corp. v. ReplayTV (C. D. Cal. 2002) CV 01-9358 FMC (Ex) (filed May 30, 2002) 2002 WL 32151632.
The phrase “Electronically Stored Information" was added to Federal Rule of Civil Procedure 34 in 2006. The Advisory Committee Notes to the 2006 Amendment of Rule 34(a) state that the rule “applies to information that is fixed in a tangible form” and that the definition “is expansive and includes any type of information that is stored electronically.” The Notes are silent as to any compact unity or functional integrity that the information must have in time or place of fixation. In the light of a generally cautious approach, it would appear that the silence is intentional. (“The wide variety of computer systems in use, and the rapidity of technological change, counsel against a limiting or a precise definition.”)
Counsel should be cautious as to any request for documents that seeks "documents" that only come about through the reduction of transient RAM to a different format "fixed in a tangible form" - especially if the production of documents requires the ongoing collection of data from transient RAM, gathering the data together into one or more files and then storage of the files in a tangible medium. Such a request for documents that requires the reduction of transient RAM to another format "fixed in a tangible form" appears to deviate from Federal Rule of Civil Procedure 34 which seems to mandate that such documents "already" be fixed in a tangible form as a condition of the requirement of production.
The Federal District Court gave a practical rule of determination in ReplayTV, supra:
“A party cannot be compelled to create, or cause to be created, new documents solely for their production. Federal Rule of Civil Procedure 34 requires only that a party produce documents that are already in existence. Alexander v. FBI (D.D.C. 2000) 194 F.R.D. 305, 310.” Further:
“It is evident to the court, based on Pignon’s declaration, that the information sought by plaintiffs is not now and never has been in existence. The Order requiring its production is, therefore, contrary to law. See National Union Elect. Corp. v. Matsushita Elec. Indust. Co., 494 F.Supp. 1257, 1261 (E.D. Pa. 1980).” (Footnote omitted.)
The phrase “Electronically Stored Information" was added to Federal Rule of Civil Procedure 34 in 2006 and the time of this writing there are few if any cases describing the contours of what "electronically stored information" is and what is considered "tangible". Given the lack of detailed legislative and judicial guidance regarding the revised Rule 34 there is a need for courts to provide clarity on how litigants should conduct themselves (especially when it comes to transient RAM data) in order to: create predictability regarding e-discovery compliance, reduce the ambiguity of data preservation letters, avoid the potentially harsh economic and social consequences of e-discovery over compliance, and to minimize the burden on the Judiciary caused by parties rushing to Court in a chaotic manner raising motions to compel, spoliation claims, and motions for protective orders.