Server Memory Subject to Search

A new court decision has been handed down for those working in forensics and for anyone else that has a server in their business (that means all of us). 

Recently, a court in the Central District of California confirmed that even the random access memory (RAM) in a Web server is “electronically stored information” subject to discovery under Rule 34 of the Federal Rules of Civil Procedure.  (Columbia Pictures Indus. v. Bunnell, C.D. Cal., No. CV 06-1093, 5/29/07). 

This cases makes clear courts are taking an increasingly broad approach to the range of locations in which discovery of electronic evidence will be permitted.  As the breadth of discovery increases, so too will the costs and invasiveness of the process.  In some instances, the costs of identifying and marshalling relevant electronically stored data can run into the hundreds of thousands of dollars. 

Given the foregoing, businesses should take time now to get their “electronic houses in order.”  This means, among other things, getting a far better handle on where electronic information is being stored and for how long.  It also means thinking about ways to decrease the costs of responding to a discovery request for electronic information (e.g., using software to constantly index files, particularly e-mail, stored on the business’ systems; decreasing the number of locations in which information is stored; and implementing appropriate document destruction programs).