The YouTube Discovery Order and ESI

by Lee Gesmer on July 8, 2008

“You have no privacy. Get over it.”
Scott McNealy

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The Internet and the press are abuzz with the potential privacy issues raised by the federal court order requiring YouTube and Google to produce the YouTube “Logging database.” This database is described in the court order as follows:

[the database] contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. . . . That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” [Viacom] seek[s] all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party
website.

In addition to this database, YouTube was ordered to produce copies of the millions of videos that had been deleted from YouTube.

Whew! Just a few, eh? My favorite quote from this decision is the judge’s offhand comment that “while the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives.” (Sorry Judge, you can’t get those at Best Buy ….).

This order, when complied with, is certain to set a new record for a document production in U.S. litigation, or for that matter litigation anywhere, ever. Twelve terabytes (three four-terabyte drives) would hold 12 thousand billions bytes (or characters). Thats 12 trillion bytes, or 12 followed by 12 zeros.

Google is involved in a separate copyright suit over Google Book Search, and all of this makes me wonder what will happen if Google is ordered, in that case, to produce the digital database of all the books that it has scanned. How many bytes would that be? A googol?

Judge have fully caught on to the fact that in electronic discovery size just doesn’t matter. No lawyer will ever again be able to say, with a straight face, those venerable words that applied for so many years to paper document productions: “that’s too much data, your Honor. It would be overly burdensome.” With this court order electronic discovery has truly entered a new era.

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