Innovatio IP Ventures, LLC (“Innovatio”) filed patent infringement actions against various hotels, coffee shops, restaurants and supermarkets for the use of wireless Internet technology located throughout the United States. Innovatio filed a motion for entry of a protocol for collection of electronic evidence and a preliminary ruling on the admissibility of the collected evidence.
As explained by the district court, “Innovatio has been using commercially-available Wi-Fi network analyzers to collect information about the Wireless Network Users’ allegedly infringing Wi-Fi networks. (Dkt. No. 329, at 2.) That process, which is known in the industry as ‘sniffing,’ requires Innovatio’s technicians to enter the Wireless Network Users’ premises during business hours with a laptop computer and a Riverbed AirPcap Nx packet capture adapter (or a similar device). (Id.) The packet capture adapter can intercept data packets that are traveling wirelessly between the Wi-Fi router provided by the Wireless Network Users and any devices that may be communicating with it, such as a customer’s laptop, smartphone, or tablet computer. Innovatio then uses Wireshark network packet analyzer software to analyze the data packets, revealing information about the configuration of the network and the devices in the network. The data packets also include any substantive information that customers using the Wi-Fi network may have been transmitting during the interception of the data packets, including e-mails, pictures, videos, passwords, financial information, private documents, and anything else a customer could transmit to the internet. Innovatio contends that the information it collects will assist in proving its infringement claims.”
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