Eric Mandel, Driven Inc.: Discovery of Ephemeral Messaging

Extract from Eric Mandel’s article “Discovery of Ephemeral Messaging”

In this post, I examine how the law looks at the construct of ephemerality when it comes to determining the obligations of litigants to preserve and produce discoverable information.

Ephemeral Data is Discoverable

Columbia Pictures, Inc. v. Brunnell[1] is the seminal case addressing the preservation and discovery of “ephemeral” data.  Plaintiffs, a group of motion picture and television companies, filed a copyright action against a company running bit-torrent servers, allegedly allowing users to illegally download pirated digital copies of movies and television shows. Plaintiffs demanded that the defendants preserve and produce server logs showing the IP addresses of users.  Defendants asserted that these server logs were never stored in permanent form, but rather existed only in Random Access Memory (RAM), where data is maintained only for transitory periods and then overwritten (or cleared when power is disconnected.

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