What every attorney needs to know about electronic technology

Florida Bar Journal, Oct, 2008 by D. Patricia Wallace

These days an attorney can get away with not knowing what a bit, byte, or gig is, but no longer can a Florida lawyer meet his or her professional obligation of competent representation without knowing the basic characteristics of electronic data. This article provides an introduction to the technology of electronic data in the context of recent court decisions and suggests some easy methods for avoiding common and often costly pitfalls related to electronic technology.

1. All data that passes across an electronic medium is stored there, if only for a short period of time.

Every time we open an electronic file, from whatever source, including the Internet, we save data to our computer. This characteristic of electronic data is one of the most profound for the nonexpert. In layman's terms, opening an electronic file such as an e-mail or a document is tantamount to opening a book. Just like we cannot see the contents of the book without having it in our hands, we cannot read the contents of an electronic document without having the data comprising the document residing in our computer's memory, specifically, our computer's Random Access Memory (RAM). The electronic data differs from the book, however, because, unlike a book that can be reshelved, electronic data stays in our computer's memory even after we have closed the document. Electronic data also differs from the book in that we cannot readily detect most of the electronic data entering our computer's memory; we cannot see that data stays in our computer's memory; and we often cannot or do not control the flow of electronic data into our computer. For example, in order for us to see a Web page, numerous files comprising that Web page must be downloaded to our computer, including those that may be unwanted. These files or parts of them will remain on the computer in some form, likely inaccessible by the regular user.

Litigators must understand this characteristic of electronic data so that they can find information to support their client's claims or defenses. A recent decision from the Central District of California shows the value of being familiar with the staying power or stickiness of electronic data. In Columbia Pictures Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419 (S.D. Cal. May 29, 2007), the plaintiff, Columbia Pictures, alleged that the defendant had pirated its copyrighted works. (1) The defendant allegedly sold copies of copyrighted works over the Internet, using a vendor's server located in the Netherlands to process orders. (2) To prosecute its case, Columbia Pictures wanted to find out how many copyrighted works were sold illegally and who made the illegal purchases. During discovery, its attorneys requested the IP addresses of users of the defendants' Web site, the users' requests for files (that is, the films purchased), and the dates and times of such requests. (3) The defendants contended that this information was not within their possession because it was routed to the RAM of their Dutch vendor. (4) According to the defendants, the information routed to their vendor's RAM was not "in any medium from which the data [could] be retrieved or examined, or fixed in any tangible form such as a hard drive." (5) This response may have been acceptable in the world of paper discovery, but Columbia Pictures' attorneys knew that any information that went across a server had to stay there if only for a short period of time. The attorneys confirmed through discovery that a customer's order remained in RAM for about six hours on the server in the Netherlands. (6) Columbia Pictures convinced the court that such information was in the custody and control of the defendants. (7) The court ordered the defendants to cause their vendors' automatic overwriting process to cease so that the requested information would be preserved during the course of litigation. (8)

It cannot be emphasized enough: All data that crosses over an electronic medium is stored there. The attorneys for Columbia Pictures used this knowledge as part of their litigation strategy. Conversely, defending attorneys need to anticipate requests such as those made by Columbia Pictures, work with their clients to develop a strategy before receiving such requests, and lay the groundwork for convincing the court of the appropriateness of their client's position and actions.

2. Deletion does not mean destruction.

By now, most attorneys know the basic rule that deletion of an electronic document does not eradicate it, but few contemplate all the dangers and opportunities arising from this characteristic of electronic data. "Deletion" of electronic files simply means that the space occupied by those files is now available to store other files. Techies commonly use the analogy that deletion of files is like removing a library's card catalog: The books are still in the library, but without another card catalog, the library patron cannot find them. In the electronic storage system, until new files occupy the old spaces, that data survives even if it is locatable only through the application of forensic software.