Oh No, Ephemeral Data!

March 22, 2010

In 2007, Columbia Pictures v. Bunnell sent shockwaves through the legal community with its conclusion that random access memory (RAM) data, a form of "ephemeral data" with a temporary life span, constitutes discoverable electronically stored information (ESI).  In the wake of Bunnell, early predictions were of a discovery doomsday in which the preservation and production of such data at great expense would be required.  Although these predictions have not yet come to fruition, the relevant case law is still developing, and this remains a topic to watch.

In their article published in The New York Law Journal on March 22, 2010, Jennifer Rearden and Farrah Pepper of Gibson Dunn discuss developments in case law since Bunnell and the outlook for discovery obligations relating to ephemeral data going forward.

Reprinted with permission from The New York Journal (March 22, 2010), © 2010 ALM Media Properties, LLC.