Potentially Planted Evidence, Memory Lapses, and Unwanted Memorabilia: the Latest from the IRobot-Robotic FX Files
A feeling of being followed. A mysterious memory lapse. Beating U.S. Marshals to the scene of a search. Hints of a tampered-with car trunk and planted evidence. A company using a former employee (and potential competitor) as a consultant, perhaps without making him sign a confidentiality agreement.
It just seems to get wilder and wilder. With a hearing on iRobot’s request for a preliminary injunction against rival Robotic FX set to resume in U.S. District Court in Boston this morning, these are just a few of the details emerging from documents filed on Friday in a separate lawsuit in Alabama involving the two companies. Two of three key Alabama filings are transcripts from the Boston hearing, which began more than a week ago, and the third was a deposition taken from Robotics FX founder Ahed in Boston, the day before the hearing opened. The new filings at once shed more light on and raise more questions about the events surrounding the case (they also make plain what’s at stake for both parties—I’ll post separately on that soon).
There’s a lot to cover: between them, the transcripts and deposition span more than 250 pages. (I’m not going to even try to cover all the other documents filed at the end of last week.) But before I dive in, here’s a quick recap. Last month, as the two firms competed for a military contract to deliver bomb-detection robots to Iraq and Afghanistan, Burlington, MA-based iRobot (NASDAQ: IRBT) filed two lawsuits against its Illinois rival. In the Massachusetts case, it accused Robotic FX and Ahed, a former iRobot employee, of infringing on patents for iRobot’s “Packbot” military robot and misappropriation and misuse of confidential information related to the device. IRobot also filed a separate patent-infringement case against Robotic FX in Alabama.
On September 14, Robotic FX won the contract with a bid of $279.9 million. Its first two robots were due to be delivered last week. As we’ve reported, the case already has a lot of drama, including private detectives watching Ahed throw items relating to iRobot in a dumpster and Ahed’s admitting to erasing computer data and shredding CD-ROM disks. But Ahed has also alleged that a key piece of evidence—a welding tool iRobot’s attorneys seem to suggest is based on an iRobot design—might have been planted.
Now, for the latest from the Alabama filings. Some of it is brand new to us, such as the revelation that iRobot actually used Ahed as a consultant after he left the company and started Robotic FX. But much of it fills in details about events we’ve previously outlined. We’ll pick it up on the night of August 17, when Ahed says he learned of the iRobot lawsuits from a reporter from a defense publication (whose name he couldn’t remember) who called to ask about the legal actions.
Of Rounding Up “Memorabilia” and Other Materials
On August 17, as previously reported, an iRobot private detective observed Ahed loading a large duffel bag into the trunk of a Saturn sedan driven by Kimberly Hill, Robotic FX’s chief operations officer, according to the detective’s affidavit.
In a September 19 deposition, under questioning by iRobot attorney Ruffin Cordell of Fish & Richardson, Ahed said that after the reporter called he gathered up CD-ROMs with his backup design data, what he called iRobot “memorabilia,” and various other items that included some manuals or books. He then put the items into a metal-framed duffel-type bag perhaps five feet long and two feet wide. With the help of a technician he then loaded the duffel into the Saturn.
From the deposition:
Q. Why did you feel the need to gather these up?
A. I was concerned that for some time I had been—I was being followed around, and I was afraid that someone would come in and steal my work.
Q. You were afraid they would come in and steal the iRobot memorabilia?
A. No, I referred to the data, the disks. The memorabilia, the reason I gathered that up was, I was angry that—frustrated that iRobot was coming after me at this point when we became competitors in such a big contract….these things were at points given to me and you know, I just didn’t want them anymore.
On Being Followed and A Memory Lapse
In the same deposition, Ahed said that a few weeks before the lawsuit was filed, he began to suspect he was being followed and even considered hiring a bodyguard. For example, he said, he would sometimes come to work in the morning and find strange cars parked in the parking lot. “And then, when I would go into the office that car wouldn’t be there when I looked back, things like that kind of started the nervousness,” he said.
Around midnight on August 17, after the duffel was loaded into the Saturn’s trunk, Ahed said that he and Hill drove from Robotic FX headquarters to his parents’ home, where he got some personal effects, and then to Hill’s apartment in Chicago, some 45 minutes away. Along the way, Ahed said, they spotted someone following them in a dark-colored vehicle: “It was a very different situation. I believe he started out by following us and then somehow we got behind him and we followed him.”
At that point in the questioning, Cordell switched gears:
Q. Did you dispose of anything after leaving your office but before arriving at Miss Hill’s apartment on the evening of the 17th, early morning of the 18th?
A. I just don’t remember. It was so late at night and I was very frightened by someone following us around that I just don’t remember. I don’t remember much until after the breakfast really, the next morning.
Q. So you just—there’s just a blank period in your recollection spanning how long?
A. From the time after we were followed to when I woke up in the morning and we went to breakfast with Kimberly’s mother and then seeing the trunk open [Editor’s note: more on this later], was really like the next real memory that I’ve had.
Cordell tried again on the second day of the hearing in Boston, Monday, September 24:
Q. You have a blank in your memory, sir, from the time you left your parent’s home late on the evening of August 17 until you showed up at breakfast with Ms. Hill and her mother the next morning, correct?
A. The only thing I can remember that night [is] being followed and following the follower. So after that we went home, I went to sleep and woke up and went to breakfast.
Q. Well, you can’t tell us whether or not you disposed of anything on the night of August 17, can you?
A. I don’t believe so.
Q. You just don’t recall one way or the other, correct?
A. I don’t recall.
Q. So, it’s possible that you did dispose of additional material on the evening of August 17, correct?
A. I don’t know.
On the Dumpster and Destroying Data
The morning of August 18th, Ahed said, he and Hill went to breakfast with Hill’s mother. After breakfast, the trio went to an office supply store to buy a paper shredder, then headed back to Hill’s apartment. As Ahed recalled in his September 19 deposition: “…on the way to her house, just right before her house, there’s a dumpster… So I said, Kim, stop, I want to dispose of some things.”
Ahed recounted how Hill and her mother remained in the car while he discarded some commercial software disks, some books—almost all of the items in the duffle bag except his data disks. Why didn’t he discard those in the dumpster as well, Cordell asked? “Because those disks did not have any security,” Ahed replied. “Anybody can put a disk in a computer and get my files. And that’s why I saw fit to shred the disks to prevent anyone from reading my designs or stealing my designs.”
After the visit to the dumpster, Ahed said, he went to Hill”s apartment and began shredding the disks. He had 100 or more of them. Some 20 or 30 disks into the job, the shredder jammed, and he returned to the store to get a more powerful model, as well as a hard-drive erasing program. He finished the disk shredding, and then (Ahed said probably on the next day, Sunday, August 19, but that he wasn’t sure of the timing), began erasing the hard drive of an old laptop computer that he had owned since his college days. He said the computer held some Robotic FX software, as well as his own personal financial data—and that he performed seven overwrites of the hard drive.
Ahed said he also erased three USB external hard drives full of backup data he had taken from the Robotic FX office, and, later, used the scrubber program to “clean the free space” on another personal laptop, as well as his office computer.
On the Possibility of Planted Evidence
Ahed admitted to throwing out almost everything iRobot’s private detectives found in the dumpster that seemed to relate to the case. Items recovered included a box for a paper shredder, a box marked SolidWorks with a UPS label bearing a Massachusetts shipping address, a VHS video cassette tape marked “IS Robotics SWARM 2000.'” (IS Robotics was the original name of iRobot.) But there was one thing in the dumpster that Ahed specifically denied putting there, a tool used to weld together sections of robot tracks.
A fixture of this type was found in the dumpster by iRobot’s detectives. The line of questioning pursued by iRobot’s attorneys seems to suggest they believe it is based on an iRobot design. In his September 24 testimony, Ahed admitted to using a similar fixture in welding together his robots’ tracks, but says he and a toolmaker designed had that tool. What’s more, he denied that the one found in the dumpster was his.
Q. This is one of the items that was found in the dumpster in the block next to Ms. Hill’s apartment, correct?
A. From what I understand, yes.
Q. But it’s your sworn testimony that you never laid eyes on this fixture before, correct?
A. That is correct.
Q. Do you have any explanation as to how this item might have got into a dumpster a block away from Ms. Hill’s apartment on the morning of the 18th?
A. The only explanation I have, sir, is earlier that day after exiting the restaurant that Ms. Kimberly Hill and I and her mother were attending, when the valet brought the car back, the trunk was open. It was physically open, and I had asked the valet if he had anything to do with that, and he said, no, that he had never opened the trunk and I can only imagine that this was possibly planted.
Q. So it’s your theory that someone planted this fixture in Ms. Hill’s trunk?
A. That’s the only explanation I can come up with.
Q. While you were at breakfast on August 18?
A. Yes, sir.
Q. Do you have any evidence of that whatsoever?
A. I do not sir, no.
A bit later in the transcript, Cordell returned to the welding tool issue. Ahed again denied that the device found in the dumpster was his, pointing out an apparent mismatch between the profile of that track-welding device and that of the track used by Robotic FX.
Q. And, again, your explanation for this is that someone made this fixture and then planted it among the materials that you had taken from Robotic FX to then dispose of on August 18?
A. Yes, sir.
On Beating U.S. Marshals to the Scene of the Search
Soon after iRobot’s detectives had spotted Ahed throwing items into the dumpster, the company went back to U.S. District Court in Alabama and got a temporary restraining order. On Tuesday, August 21, U.S. Marshals, in conjunction with iRobot attorneys and some computer forensics experts hired by iRobot, searched Robotic FX headquarters, Ahed’s parents’ home, and Hill’s apartment.
According to Ahed’s testimony on September 24, when the party left Ahed’s parents’ house on the roughly 45-minute drive to Hill’s Chicago apartment, Ahed and Hill drove there in Hill’s car, parking behind the unit and going in the back door. Hill then went to the front door to await the party, while Ahed was left alone in the apartment. Ahed went into Hill’s bedroom, closed up his old laptop, whose hard drive he had erased and which was still on and running. He put the computer in its case and placed it under Hill’s bed.
“Out of the plain view, correct?” Cordell asked in the September 19 deposition.
A. I wouldn’t consider it out of plain view, but…
Q. Well, out of view of anybody’s who’s not looking under the bed, correct?
A. Well, yes.
Q. You understood that the marshals were about to search Miss Hill’s apartment, correct?
A. That is correct.
Q. And you understood that by placing the laptop under the bed, you made it less likely for them to find it, correct?
It’s not hard to imagine how important iRobot’s attorneys think that computer hard drive might have been. At the September 20 hearing in Boston, Cordell put it this way: “We think it’s a key piece of evidence that he deliberately destroyed.”
As far as the hiding of the laptop under Hill’s bed despite the temporary restraining order prohibiting him from tampering with any evidence goes, Cordell made no bones about that being a potential criminal act: “Mr. Ahed intentionally concealed, he tried to hide it from the marshals. He had full knowledge of the TRO as of that moment. We feel that is a very substantial act that is certainly in violation of the TRO and perhaps at worst an obstruction.”
On iRobot Using Ahed as a Contractor After He Left the Company and Possibly Forgoing a Confidentiality Agreement
In the transcript of the September 24 hearing in Boston, Robotic FX attorney Patricia Kane Schmidt, of Jason Alexander Engel, was examining iRobot witness Thomas Frost, program manager of the PackBot robot (the robot whose patents iRobot claims Robotic FX’s device infringes upon). Schmidt questioned Frost about a time after Ahed had left iRobot when he did work building joysticks for the PackBot.
Q. Mr. Frost, you’re aware that iRobot sent materials to Mr. Ahed in order for him to make joysticks in 2002?
A. Yes, I am. [Editor’s note: Frost had previously explained that he didn’t see anything competitive about what Robotic FX was doing, that from the descriptions he had seen the company was providing component-level hardware for hobby-grade robots.]
Q. And there was no confidentiality agreement between Robotic FX and iRobot or Mr. Ahed and iRobot at that time, correct?
A. I don’t recall if there was or not.
Q. You don’t know that there was one, correct?
A. I don’t specifically recall that there was one.”
The Court: (Judge Nancy Gertner): Why isn’t the one that he was under when he signed onto iRobot to begin with, why doesn’t that cover anything further?
Schmidt: “Your Honor, at that time Mr. Ahed had left the company.”
Gertner: “I see. So any information he received after acquired information was not under the confidentiality agreement, okay.”
More coming soon.