Habeas Hard Drive gives a thumbs up to Losing the Signal: The Untold Story Behind the Extraordinary Rise and Spectacular Fall of BlackBerry. The book chronicles the life of the BlackBerry, a fabulous product that's going extinct. It also offers a clear lesson in how not to present technical evidence in court.
To learn the business reasons BlackBerry got knocked off the smartphone throne, read the book. Here, we will stick to its account of the intellectual property claim against parent company Research in Motion. For six years, RIM defended patent infringement claims by NTP, Inc., a holding company that never produced a product, but owned several patents covering wireless email technology.
The lawsuit threatened the very existence of BlackBerry email service. It demoralized and distracted the company during the years just prior to the launch of the iPhone, when RIM could have been solidifying BlackBerry's market position. And while the outcome was initially hailed by Wall Street, the settlement cost a lot of money and robbed the company of momentum. The court battle ended with RIM paying a $612.5 million settlement.
Among the big lessons from the RIM trial -- how metadata can clobber you in court, and just how easy it is to botch explanations of very technical material to laypersons on a jury.
As RIM was preparing to demonstrate the existence of relevant technology that predated NTP's patents, there were technical difficulties. RIM's experts had to alter some code to make the demonstration materials perform. In so doing, they also altered the creation date of the file. That date is part of the metadata, meaning data that describes the content, creation, storage location, and movement of files.
NTP was able to seize on the metadata, showing that the creation date of the technology submitted as evidence was inconsistent with the date RIM claimed it was created. More significant - NTP was able to force RIM engineers to admit that they altered the evidence. This is pretty basic stuff, and you'd think they'd have known better.
While the underlying assertion was correct - NTP's patented invention was not unique - RIM's tinkering infuriated the judge, who tossed the evidence, and issued a sanction. The company might have turned the tide by treating its electronic evidence (and the Court) with more respect.
RIM executives made another notable mistake with legal consequences. Losing the Signal describes how they failed to take SEC regulations seriously, issuing backdated stock options to themselves without disclosing the practice to existing shareholders. They violated trading law, jeopardized the company's position on the exchanges, and misled investors.
Another distracting and expensive episode, made worse by a significant volume of electronic communications between the executives, authorizing the practice. Again, you'd think they'd have known better.
The takeaway is simple. Procedures matter, and digital records matter, even when you aren't being sued. When you are being sued, they matter more. Proper preservation pays dividends, and mishandling digital evidence can cost far more than making sure it's done right.
Ira Victor is the Discovery Technician, practitioner of Digital Forensics for 25 years. He has extensive background in Digital Forensics, E-discovery and preservation of Electronically Stored Information (ESI), Incident Response and Information security. He is named on six U.S. patents in email security and information security, with one additional information security patent pending. Mr. Victor teaches CLE classes for attorneys through the Washoe and Clark County Bar Associations, and the Nevada Justice Association and also engages in public speaking on cybercrime prevention.
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