Six Articles on Electronic - Craig Ball

Craig Ball © 2007
Yours, Mine and Ouch!
By Craig Ball
[Originally published in Law Technology News, September 2005]
When star performer Sarit Shmueli was fired from her real estate agent job with The Corcoran
Group, she returned to her desk to find that she’d been locked out of the company computer
system. Shmueli was barred from retrieving virtual property, in particular, her client list. When
demands for her data were unavailing, Shmueli sued Corcoran for three million dollars.
Though opinions vary on whether to drop the axe on Friday or Monday, human resource experts
agree that immediate steps must be taken to block the fired individual’s access to company
computers. That’s wise, considering more than a few heading to the door have trashed
important files or attempted to sabotage entire networks. But, what about personal computer
data? Fired workers are routinely furnished a cardboard box and the supervised opportunity to
collect personal belongings before being escorted to the door. Is denying access to personal
data stored on a company computer a violation of the discharged party’s property rights?
Overruling a motion for summary judgment, a recent decision in Sarit Shmueli’s case holds that
when The Corcoran Group blocked Shmueli from accessing her records on the company
computer system, Corcoran may have been guilty of conversion. "There should be no reason
why [a] practical view should not apply equally to the present generation of documents—
electronic documents—which are just as vulnerable to theft and wrongful transfer as paper
documents, if not more so," reasoned New York Supreme Court Justice Herman Cahn. Shmueli
v. The Corcoran Group, 104824/03 (N.Y.S.Ct. July 25, 2005) online at
http://decisions.courts.state.ny.us/fcas/FCAS_docs/2005JUL/30010482420033SCIV.PDF.
Of course, Justice Cahn is right to ascribe value to electronic documents, but what are the
ramifications of affording a conversion cause of action to employees and contractors against
companies that refuse to recognize personal property interests in data stored on their systems?
The bulk of my work as a special master in computer forensics revolves around employees
who’ve allegedly purloined company data to build rival businesses. If the employees haven’t
already jumped ship, they’re canned as soon as the boss realizes they’re playing for the other
team. Then, much time and money goes into assessing what information was taken and what
tracks were covered. Initial reports of the Shmueli decision made me wonder if workers being
shown the door might now be entitled to access the company network for the purpose of
copying information they deem to be their own property. Are they perhaps at liberty to delete
such “personal” items, too? What of the longstanding notion that anything stored on the
company computer belongs to the company?
The Order makes clear that Shmueli’s unique employment status as independent contractor and
not an employee played a decisive role in the court’s view that Corcoran may be liable for
converting its former agent’s digital property just as if the data had been printed to paper.
Though Corcoran asserted its ownership of the computer trumped the plaintiff’s rights, the court
countered that because Shmueli worked with Corcoran and not as an employee of Corcoran,
the computer was “licensed” for plaintiff’s use to facilitate the independent contract.
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