Capturing and Preserving Evidence in Software Disputes

24 September, 2018
by: Cripps Pemberton Greenish

Nikita Gonin ©

One of the most common mistakes made in any dispute is to fail to capture and preserve evidence at an early stage.

Unless you’ve been involved in litigation before, capturing evidence at the outset might not be something that immediately comes to mind as being a critical first step.  However if the opportunity to capture important evidence is missed, a claim may be fatally harmed.

Capture Early

Seeking legal advice at an early stage is always recommended as we can help you structure your communications more advantageously to shape a robust dispute resolution strategy, but don’t let this delay you from gathering evidence. At any moment critical evidence may be removed, edited or deleted, particularly if the other side is aware of a dispute.

An example: Copied Software Code

If you discover that someone has copied your software without your permission, infringing your intellectual property (IP) rights, the initial instinct may be to contact the offender and make a claim. However, if you make contact with the infringer before capturing and keeping a copy of any evidence of infringement, you give them an opportunity to edit or hide it. It may then be difficult or impossible to pursue a claim without access to evidence of infringement. The original evidence could be lost and with it the opportunity to apply for an injunction to stop further use of the software and a claim to the infringing party’s profits.

Therefore, before any contact is made with the infringer, it is recommended that the infringing software (including any code if possible) is captured and preserved as dated screenshots.

Practical Tips: Capturing and Preserving Evidence

Screenshots are good evidence of software infringement.

When taking a screen shot try to include the date and time information as it appears on the main page of your computer’s operating system (Google should help you find the answer how to do this depending on your particular device if you’re unsure). It is also useful to make a contemporaneous note (recording the date and time) of the circumstances under which you discovered the infringing material and how you have stored it in isolation to preserve its integrity. It is important not to use the evidential copy of the material as your “working copy” for further analysis / investigation. We may need to provide the original material to an expert for forensic analysis at a future point in time and it is important not to undermine the validity of that material as a result of poor handling / storage.

You may also wish to email the screenshots and your commentary to your lawyer/accountant to ‘date stamp’ and preserve the evidence.

A quick and easy low tech method of capturing the material can be to take a photograph of the screen.

Evidence can make or break a claim (whether or not it goes to court). It also plays a key role in both the assessment of damages and the ability to secure other remedies from the Court, such as final injunctions, which may be critical to stopping further harm.  

If you take the time to capture and preserve evidence then you will make your lawyer’s job a lot easier.

In more complex situations (for example if the material is located on the hard disk of a PC or laptop or on a server), it is important to seek expert help and advice from forensic specialists from the outset to ensure that the integrity of the evidence is preserved.

For more information on software disputes please contact the commercial disputes team.

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