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The evolution of electronic discovery has been marked by assertions that a party must preserve and produce electronic information that initially seems well beyond what would normally be considered discoverable. The first of these “cutting edge” cases, and arguably one of the most prescient, was the 1980 decision in National Union Electric v. Matsushita Electric Industrial Co., 494 F. Supp. 1257 (E.D. Pa. 1980), in which the court held that “common sense” required production of information in machine-readable format over an objection that the information did not exist in the precise form sought and was therefore not discoverable. The court opined that the difference between producing printouts and producing the data in computer-readable form was a distinctions without a difference.” As later explained in Daewoo Electronics Co. v. U.S., 650 F. Supp. 1003 (Ct. Int’l Trade 1986), the court was “not requiring [the party] to create something new or to render exceptional assistance. It [was] simply requiring that an existing body of data be transmitted in a reasonably usable way with a modicum of cooperation.” Skip forward 25 years, and we find Convolve Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 177 (S.D.N.Y. Aug. 17, 2004), in which Magistrate Judge James Francis IV refused to sanction a party for failing to take affirmative action to preserve successive iterations of wave-form images visible on an oscilloscope screen. The engineer could have, so the argument went, merely taken a “screen shot” each time he made a change in the parameters that caused the wave to form on the screen. The court assessed the “heroic” effort involved in doing so as beyond the pale � it was not required by business needs and no attempt had been made to demand that the action be undertaken by the party now claiming its omission constituted spoliation. Perhaps unnoticed and certainly unremarked in the opinion or the comments that followed was the latent issue of whether such types of evanescent information were discoverable � their existence was only temporary or “ephemeral,” after all, according to the court. In both 1980 and in 2004, Fed. R. Civ. P. 34 provided that “data compilations from which information can be obtained” were discoverable provided that the information was within the scope of discovery as defined by Rule 26(b). However, by 2007, amended Rule 34, which confirmed the discoverability of “electronically stored information,” spoke of “data or data compilations stored in any medium from which information can be obtained.” The committee note emphasized that the rule was “intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” Whether it should be produced, “and in what form,” were described as “separate questions” to be addressed under the rules. ‘Just flip the switch’ An oft-quoted Oliver Wendell Holmes maxim is that “[g]reat cases like hard cases make bad law.” One of the battlegrounds in the titanic battle between the entertainment industry and the fickle Internet user is to be found in the ongoing disputes over the various tools that facilitate a user’s downloading of copyrighted material. In Columbia Pictures v. Brunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419, at *3-*6 (C.D. Calif. May 29, 2007), motion to review denied, Aug. 24, 2007, a magistrate judge found that certain information (“server log data”) about individuals seeking to acquire such a tool to facilitate downloading was discoverable, even though it had existed only temporarily in the computer’s random access memory (RAM) (which is blank when the computer is first turned on and is emptied when the computer is turned off) and even though the producing party was required to “turn on” a logging feature which it had chosen, deliberately it would seem, not to activate. Like the predecessor court in National Union, however, the result seemed merely a matter of common sense. As District Judge Florence-Marie Cooper put it, the wording of Rule 34(a) “leaves no room to interpret the Rule to categorically exclude information . . . simply because that medium stores information only temporarily.” See Columbia Pictures, 2007 WL 2702062, at *3 (C.D. Calif. Aug. 24, 2007). It is difficult to predict how courts will view the dilemma presented by the “flip the switch” option in more extreme cases. When a company does not routinely preserve the data in its RAM as part of its record-retention policy, many courts will find that the company does not have a duty to change its business practices and start preserving that information. Other courts might, however, take a more practical approach and find that if all it takes to preserve information relevant to the litigation is for the party to “flip the preservation switch,” the court might feel comfortable ordering a party to do just that. The holding in Columbia Pictures seems to be that a party may be required to produce existing electronic information that exists for any period of time and that can be placed into a usable form for production under Rule 34 with a “modicum of cooperation,” particularly when the information is not available elsewhere. At first blush, the result may seem inconsistent with an earlier decision by the court refusing to compel a party to collect information about customer use of commercial-skipping TV devices that “is not now and never has been existence.” See Paramount Pictures v. Replay TV, No. CV 01-9358, 2002 WL 32151632 (C.D. Calif. May 30, 2002). However, the two cases are reconcilable. In Columbia Pictures, the information existed (albeit in a different and transitory form), whereas in Paramount Pictures, the information had to be gathered and its production would require a “major software development effort.” The information sought in Columbia Pictures was highly relevant and had not been saved to a hard drive or other “nonvolatile” form of memory. Given that neither the minutes of the advisory committee meeting nor the committee note to Rule 34(b) reflect any indication that transitory or ephemeral electronic information is to be treated as a special class, Columbia Pictures seems in line with the rule. Rule 34(a) must be assessed not just by the issue of whether the underlying data already exist, but also by the degree of effort required to place the data into a discoverable form before they are deleted or otherwise disappear. This result is entirely consistent with pre-existing case law. In Anti-Monopoly v. Hasbro, No. 94 Civ. 2120, 1996 WL 22976 (Jan. 23, 1996), for example, Magistrate Judge Andrew Peck ordered production that required writing a program to extract information from existing and stored computer tapes, and in PHE v. Department of Justice, 139 F.R.D. 249 (D.D.C, Nov. 14. 1991), production was ordered when, with little effort, a party could execute a program to obtain information from existing databases. By comparison, the U.S. Court of Federal Claims recently refused to order production of information that did not exist “in a form in which it could simply be ‘copied’ ” because of the substantial effort required, while conceding that “ [t]here may be instances when it may be reasonably necessary to so order, especially in this era of computerized data.” See In re Claims for Vaccine Injuries Resulting in Autism Spectrum Disorder, 2007 WL 1983780, at *16 (Fed. Cl. May 25, 2007). Much of the angst expressed by commentators and bloggers who have filled the airwaves with their criticism (e.g., “unprecedented,” “irresponsible naivet�,” etc.) is based on their belief that Columbia Pictures implies that all ephemeral and transitory information must be routinely preserved � exactly the result not contemplated by the court in Convolve. But these concerns appear misplaced. Columbia Pictures does not hold that transitory or ephemeral information must be routinely preserved when litigation can be anticipated; quite the contrary. Both the magistrate judge and the district judge noted the need of “a specific request by [the requesting party] to preserve the information.” As the district judge carefully noted, the producing party was ordered to preserve a subset of data only “ after the issuance of a court order.” 2007 WL 2702062, at *4 (emphasis in original). What producing parties must do A producing party that is aware of the pending or imminent possibility of litigation has the responsibility to be attuned to potential needs to act to preserve information that may be required in discovery. As explained in Sedona Principle 6 (2d ed.), those choices are best made, at least in the first instance, by the party with the responsibility for the operation of the information systems, guided by the document- or records-management policies that are adopted to fit its particular business and regulatory context. When interim or transitory information is not required for business purposes, a failure to retain it “is not the kind of willful action that discovery sanctions are intended to redress.” Getty Properties Corp. v. Raceway Petroleum, No. Civ.A.99-CV-4395DMC, 2005 WL 1412134 (D.N.J. June 14, 2005) (failure to create and preserve interim readings of alarm activations). If temporary or ephemeral information is not routinely retained, the emerging common law principle is that the requesting party must take effective affirmative action, including, when necessary, the seeking of a preservation order, to require that a producing party place transitory information into a form from which production can later be made. Rule 26(b) was expressly amended during the 2006 amendments so that “potential preservation obligations” may be determined by filing either a motion to compel or a protective order. If the requesting party is not willing to make the effort at a time when it could make a difference, Columbia Pictures stands for the proposition that sanctions for nonproduction will be denied. That was the result in Healthcare Advocates v. Hardin, Earley, Follmer & Frailey, No. 05-3524, 2007 WL 2085358 (E.D. Pa. July 20, 2007), in which a court held that there was no duty to preserve images automatically retained in (and subsequently deleted from) temporary cache files in light of the fact that the producing party was not aware of the need to do so. In that case, the defendants accessed a Web site operated by an Internet archive and viewed archived screen shots of the plaintiff’s Web site using a tool called the Wayback Machine. The defendants printed screenshots but did not save electronic copies to their hard drives. The requesting party later claimed spoliation because the images involuntarily saved in cache files were later lost. The court disagreed, noting that the defendants did not affirmatively destroy evidence and so no sanction was warranted. The court also noted that the plaintiff was able to get what it needed through forensic imaging of the defendants’ computers. Thus, to paraphrase Holmes, the lesson of Columbia Pictures is that while great controversy does indeed make for hard cases, it can also help develop emerging common law principles needed for assessing preservation obligations at the cutting edge of discoverability. Thomas Y. Allman is a former general counsel and one of the editors of The Sedona Principles (2d ed.), www.thesedonaconference.org. He can be reached at [email protected]. Kevin F. Brady is a litigation partner in the business law group of Connolly Bove Lodge & Hutz in Wilmington, Del. He can be reached at [email protected].

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