Temporary storage may not be so temporary

Data privacy and data retention are hot issues these days. While American and European legislatures and regulators wring their hands over how to balance the interests of privacy, law enforcement, and commercial imperatives, courts are not hesitating to step into the breach in unexpected ways. Last month, in Columbia Pictures Indus. v. Bunneli, a federal magistrate judge in California ordered TorrentSpy, a website that offers dot-torrent files for download by users, to preserve and produce information about users' interaction with the site, even though this information is purposely not logged but only stored temporarily in the RAM of either the TorrentSpy server, located in the Netherlands, or of servers controlled by a third-party middleman, located around the world. The ruling was based on the Federal Rules of Civil Procedure, which require litigants to retain and produce "electronically stored information" relevant to a case. The court rejected the defendants' various arguments for why retention and production should not be required – including costs, the website's privacy policy, the Stored Communications Act (SCA), the Wiretap Act, the pen register statute, the First Amendment, the potential loss of users' good will, and conflicts with Dutch data protection law. If this ruling becomes the norm in discovery, it could lead to much greater retention and production of communication records, website logs, and search terms during litigation. More broadly, if courts routinely order data retention during discovery, even where such retention is not part of a company's normal business practices, the slope leading to a broad data retention mandate seems likely to get a lot more slippery.

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