In Belvac Prod. Mach., Inc.v. Adonis Acquisition Holdings LLC, No. 25-166-JLH (D. Del. July 29, 2025), Delaware Magistrate Judge Sherry R. Fallon denied Plaintiff’s motion for the entry of its proposed ESI protocol is without prejudice, ordering the parties to meet and confer to discuss Defendant’s preservation obligations, including the preservation of RAM (random access memory) in Defendant’s computers.

Case Discussion and Judge’s Ruling

This case involved claims of copyright infringement by the Defendant where Plaintiff alleged that Defendant was reproducing Plaintiff’s copyrighted software in random access memory (“RAM”) or other temporary storage in violation of the Copyright Act. According to Plaintiff, Defendant’s infringing acts “have occurred or will imminently occur as [Defendant] continues to operate the Belvac Equipment in which the copyrighted Software is embedded.”

To obtain the evidence necessary to support its claims, Plaintiff sought the entry of an ESI protocol that proposed for Defendant to preserve three categories of ESI only “to the extent that this information evidences use, reproduction, preparation of a derivative work, and/or distribution of the Belvac Software by Defendant”: (a) deleted, slack, fragmented, or other data only accessible by forensics; (b) random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system; and (c) server, system, or network logs. Of these three ESI categories, Plaintiff identified RAM data, other temporary files, and system logs as “likely the most critical to this case”.

Plaintiff contended “it is undisputed that each time [Defendant] powers on or reboots the Belvac Equipment … a copy of [Plaintiff’s] embedded, copyrighted programmable logic controller (‘PLC’) Software is made from an SD memory card to RAM for execution of the software, with the RAM copy remaining only until the Belvac Equipment is next powered off.” As Judge Fallon stated: “Plaintiff argues its proposal ‘requires the preservation of RAM, temporary file, and log information only if it evidences an infringing act by Adonis under one of the known-to-Adonis scenarios in which reproduction occurs,’ without defining the ‘known-to-Adonis scenarios.’”

Defendant opposed Plaintiff’s proposal, arguing that Plaintiff had not shown good cause to deviate from the District of Delaware’s Default Standard for Discovery, which identifies a list of specific categories of ESI which need not be preserved absent a showing of good cause, including: (a) deleted, slack, fragmented, or other data only accessible by forensics; (b) random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system; and (c) server, system, or network logs.

Addressing the issue, Judge Fallon stated: “Defendant’s response convinces the court that the parties have not fully engaged in a meet and confer that included any exploration of compromise options. Defendant opposes any preservation requirement, but acknowledges that if the court finds good cause for preservation, the “starting point” for the protocol… should … be no broader than requiring preservation of: RAM data, temporary files, and system logs located in, as applicable, the Belvac Equipment PLCs, external devices used to access the PLC Software, and/or the industrial PC on which the IMS Software resides when, and only when, Adonis powers on or reboots the Belvac Equipment, Adonis personnel access the PLC Software through an external device, or Adonis powers on or reboots the industrial PC on which the IMS Software resides.”

She added: “Adonis disputes that ‘real-time’ capture of RAM is even possible, noting that ‘the only programs Adonis has been able to identify … create a snapshot at the time the capture is initiated. This snapshot would not be a continuous capture of RAM over time.’… With respect to burden, Defendant represents that the breadth of the preservation requirement would cause delays in production when Defendant needs to contact an outside vendor each time the equipment is rebooted or serviced… Defendant estimates the cost of the proposed preservation would total between $40,000 and $240,000, depending on certain variables, but it provides no evidence beyond a brief declaration to substantiate these estimates…The record before the court suggests that Defendant did not investigate the cost, feasibility, or burden of implementing Plaintiff’s proposal prior to the parties’ meet and confer or the filing of the Joint Motion for Discovery Dispute Teleconference on July 7, 2025.”

Ruling on the preservation of RAM request, Judge Fallon stated: “Plaintiff’s motion for the entry of its proposed ESI protocol is DENIED without prejudice. Plaintiff has not met its burden to show good cause for the preservation of ESI as set forth in its proposed protocol. Neither the proposed protocol nor Plaintiff’s letter submission defines phrases such as ‘real-time retention’ or ‘known-to-Adonis scenarios,’ rendering the scope of the information to be preserved too broad and vague. Furthermore, the parties have not met and conferred on Defendant’s compromise proposal.”

She also ordered the parties to meet and confer on the issue, stating: “If no compromise is reached during the meet and confer process, any renewal of the instant motion by Plaintiff should include in the briefing: (1) analogous case authorities, to the extent there are any, regarding the preservation of evidence of the alleged reproduction of copyrighted software; and (2) precise and narrowly contoured language defining the scope of the ESI which must be preserved, with each side’s competing proposal clearly identified for any portions of the proposed protocol that remain in dispute.”

So, what do you think? Are you surprised the Court denied the preservation of RAM request? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for his previous coverage of the case here.

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