employee – Attorney Evan Brown

October 7, 2012 Computer Crime, Employment, Trademarks

No Computer Fraud and Abuse Act violation for taking over former employee’s LinkedIn account

Eagle v. Morgan, 2012 WL 4739436 (E.D.Pa. October 4, 2012)

After plaintiff was fired as an executive, her former employer (using the password known by another employee) took over plaintiff’s LinkedIn account. It kept all of plaintiff’s contacts and recommendations but switched out plaintiff’s name and photo with those of the new CEO.

Plaintiff sued in federal court under the Computer Fraud and Abuse Act, the Lanham Act, and a slew of state law claims including identity theft, conversion and tortious interference. The former employer moved for summary judgment on the CFAA and Lanham Act claims. The court granted the motion, but continued to exercise supplemental jurisdiction over the state law claims.

On the CFAA claim, the court found that plaintiff failed to show how the taking over over her account gave rise to a cognizable loss under the CFAA. The kinds of losses she tried to prove, e.g., lost future business opportunities and professional reputation, did not pertain to any impairment or damage to a computer or computer system. Moreover, the court found, plaintiff failed to specify or quantify the damages she alleged.

As for the Lanham Act claim, the court found that there was no likelihood of confusion. It noted that “anyone who navigated to [plaintiff’s] LinkedIn account would be met with [the new CEO’s] name, photograph and new position.” Accordingly, there was no effort to “pass off” the new CEO as plaintiff or to otherwise suggest an endorsement or affiliation.

Though it dismissed all the federal claims, the court kept the pending state law claims. The matter had been before the court for over a year, the judge was familiar with the facts and the parties, and dismissing it so soon before trial would not have been fair.

Other coverage by Venkat.

Photo credit: Flickr user smi23le under this Creative Commons license.

September 12, 2011 Employment, Trade Secrets

Former employer’s trade secret claim under inevitable disclosure doctrine moves forward

Copying of employer computer files central to trade secrets claim

Mobile Mark, Inc. v. Pakosz, 2011 WL 3898032 (N.D.Ill. September 6, 2011)

Defendant used to work for plaintiff. Before he left that organization to work for a competitor, he allegedly accessed plaintiff’s computer system and copied proprietary information to a laptop that plaintiff had loaned him. He then allegedly transferred the proprietary data to a number of external storage devices, and then installed and repeatedly ran a “Window Washer” program on the laptop to delete files and other data in order to conceal his activities.

Plaintiff sued, putting forth several claims, including a claim of misappropriation of trade secrets under the Illinois Trade Secrets Act, 765 ILCS 1065/2. Defendant moved to dismiss. The court denied the motion.

One of the bases for plaintiff’s trade secret misappropriation claim was that defendant, by going to work for a competitor, would inevitably disclose the proprietary information he had obtained while working for plaintiff. Looking to Illinois law, the court noted that “[i]nevitable disclosure is not assumed when an employee has general information in his head as a result of working for a company.” But “where evidence exists that the employee copied the employer’s confidential information, it leads to the conclusion of inevitable disclosure.”

February 5, 2009 Computer Crime, Employment

Probable cause existed to arrest employee for criminal data tampering

Deng v. Sears, Roebuck & Co., 552 F.3d 574 (7th Cir. January 5, 2009).

Employee Deng got a bad review from his employer Sears, Roebuck & Co. Disaffected, he took disability leave but continued to come into the office. On one of these visits, he deleted a bunch of data relating to work he had been doing. It cost Sears more than $40,000 to restore that data.

Sears called the police to report the data deletion, and Deng was arrested a year and a half later in Massachusetts (which is where he had fled). Deng was charged with violation of 720 ILCS 5/16D-3(a)(3), the Illinois law that prohibits tampering with computer files without the permission of the files’ owner. The criminal court dismissed the charges at the preliminary stage because a witness failed to appear.

Deng then filed a federal civil action against Sears for malicious prosecution. After his case was thrown out at the district court level, he sought review with the Seventh Circuit. On appeal, the court affirmed the dismissal of Deng’s suit. Among the things Deng was required to prove was that his arrest was made without probable cause. The court found that probable cause existed.

Deng had argued that he was authorized to delete the data, since statistical modelers like him were expected from time to time to free up disk space and get rid of unneeded data. One problem with this argument, however, was that Deng was on disability leave. Nothing in the record showed that the remaining Sears employees thought the data was no longer needed. After all, they spent significant sums to restore it. Moreover, because Deng was on disability leave, he had no authority to do anything with the data, let alone get rid of it. Finally, Deng’s fleeing after the troubles began was an indicator to authorities that he had done something wrong. Probable cause requires an objective analysis. Flight added to the impression that a crime had been committed.

Tennessee lawyer Jack Burgin also discusses this case at his blog Our Own Point of View.

November 15, 2007 Employment, Ethics, Litigation, Privacy

Be careful with email because your employer is “looking over your shoulder”

Workplace email policy destroyed attorney-client privilege

Scott v. Beth Israel Medical Center, — N.Y.S.2d —-, 2007 WL 3053351 (N.Y. Sup. October 17, 2007).

Dr. Scott, who used to work for Beth Israel Medical Center in New York, sued his former employer for breach of contract and a number of other different things. Before he was terminated, however, he had used his work email account to send messages to his attorneys, discussing potential litigation against Beth Israel.

When Dr. Scott found out that Beth Israel was in possession of these email messages, he asked the court to order that those messages be returned to him. He argued that they were protected from disclosure to Beth Israel under the attorney client privilege.

Beth Israel argued that they were not subject to the privilege because they were not made “in confidence.” There was an email policy in place that provided, among other things, that the computers were to be used for business purposes only, that employees had no personal right of privacy in the material they create or receive through Beth Israel’s computer systems, and that Beth Israel had the right to access and disclose material on its system.

Dr. Scott argued that New York law [CPLR 4548] protected the confidentiality. Simply stated, CPLR 4548 provides that a communication shouldn’t lose its privileged character just because it’s transmitted electronically.

The court denied Dr. Scott’s motion for a protective order, finding that the messages were not protected by the attorney client privilege.

It looked to the case of In re Asia Global Crossing, 322 B.R. 247 (S.D.N.Y. 2005) to conclude that the presence of the email policy destroyed the confidential nature of the communications. The policy banned personal use, the hospital had the right to review the email messages (despite Scott’s unsuccessful HIPAA argument), and Dr. Scott had notice of the policy.

The decision has implications for both individuals and the attorneys who represent them. Employees should be aware that when they are sending messages through their employer’s system, they may not be communicating in confidence. And attorneys sending email messages to their clients’ work email accounts, on matters not relating to the representation of the employer, must be careful not to unwittingly violate the attorney client privilege.

What’s more, although the decision is based on email communications, it could affect the results of any case involving instant messaging or text messaging through the company’s server.