Recently, as part of the discovery phase of the ReplayTV case, a magistrate judge had ordered ReplayTV to, among other things, "gather all available information about how users of the ReplayTV employ the devices, including all available information about what works are copied, stored, viewed with commercials omitted, or distributed to third parties." In other words, ReplayTV was to spy on its customers and hand the information over to a consortium of television producers. Not only was this a terrible breach of privacy, but ReplayTV did not collect this information and would have to write entirely new software in order to gather data on individual's viewing habits. ReplayTV sought to overturn the magistrate judge's order and was backed by an amicus brief from the Electronic Privacy Information Center, which maintains a page on the case (Covert Electronic Surveillance of TV Usage).
In an eight-page ruling, the judge in the case threw out the order (Order on Parties' Motions for Review of Magistrate Judge's Discovery Order of April 26, 2002 [PDF]). Although a number of arguments had been raised opposing the order (such as violation of privacy), the judge based her decision on procedural grounds, holding that it was impermissible to "require defendants to create new data which does not now exist. A party cannot be compelled to create, or cause to be created, new documents solely for their production."
Additional Resources
C|Net News reports ( Viewing secrets are safe with Sonicblue ).