Employer not allowed to search for porn on employee’s home computer

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

Photo credit: Jakob Montrasio (CC BY 2.0)

Court upholds criminal intimidation conviction over threats to distribute sexually explicit photo

State v. Noll, 2011 WL 2418895 (Ind. App. June 14, 2011) (Not selected for publication)

Defendant used a sexually explicit photo of the victim in an attempt to gain leverage in an intra-family dispute. She handed an envelope containing the photo to the victim, and indicated she would begin distributing the photo if certain demands were not met.

Defendant was convicted of intimidation under Indiana law. She sought review of her conviction. On appeal, the court affirmed.

One of the arguments that defendant made on appeal was that there was no intimidation because distribution of the photo to persons such as the victim’s husband or co-workers would not subject her to hatred, contempt, disgrace or ridicule as required by the Indiana statute. Defendant pointed out that the victim had posted the sexually explicit photo of herself at issue on the web five years earlier. So in essence, defendant argued, further distribution would do the victim no harm.

The court rejected this argument, finding:

The fact that [victim] already publicized the material herself certainly merits consideration, but is not alone determinative because publicizing material to a particular audience does not necessarily mean that further, targeted, publication would not lead to hatred, contempt, disgrace, or ridicule. In other words, we consider [victim’s] posting of these photographs online in the past as it might mitigate reputational consequences of [defendant] mailing the photographs to others. Although internet websites are of an unusually public and long-lasting nature, we also recognize that making an obscure set of photographs available online is qualitatively different in nature from directly mailing the same photographs as hard-copies addressed to a particular individual or company. [Victim’s] husband or employer could have discovered [victim’s] prior internet posting of the photographs, but a direct mailing is certain to reach them.

The court similarly rejected defendant’s argument that because the victim had posted the photo on the web before, she had no reasonable expectation of privacy in the photo and thus could not be the subject of intimidation. The court disagreed with the analogy to the Fourth Amendment expectation of privacy because in this case, the privacy interest was the victim’s, not the defendant’s. So use of such an analogy might “misdirect [the court] from the determinative issue of whether she would be exposed to reputational consequences.”

More subpoenas on the way to identify John Doe BitTorrent users in copyright cases

First Time Videos v. Does 1-37, 2011 WL 1431619 (N.D. California, April 14, 2011)

Hard Drive Productions v. Does 1-118, 2011 WL 1431612 (N.D. California, April 14, 2011)

There have been a couple of new cases filed in federal court in California alleging that unknown BitTorrent users committed copyright infringement and engaged in civil conspiracy by trading porn files online. [Read about some earlier, ongoing cases of this type here and here]. The court has issued orders that move the process of uncovering the identities of the John Doe defendant BitTorrent users.

Generally a plaintiff cannot start the discovery process in a case until it has had a “Rule 26(f)” conference with the defendant. But when the defendants are anonymous (as they are in these BitTorrent cases — they’re known only by IP address), the plaintiff has a bit of a problem. It needs discovery to find out the names of the defendants, but it cannot take discovery before the Rule 26(f) conference. [More on this]

So in cases like this, a plaintiff will ask the court to allow the early discovery to be had. Courts grant those motions allowing early discovery when good cause has been shown.

In this case, the court allowed the discovery because the following four criteria had been met:

(1) The plaintiffs had identified the Doe defendants with sufficient specificity that the court could determine that the defendants are real people who can be sued in federal court. On this point, the court credited the list of IP addresses associated with each of the unknown defendants.

(2) The plaintiffs recounted the steps taken to locate and identify the defendants. Again, the court looked to the fact that the defendants were known only by IP addresses. The names of the defendants could not be ascertained from the information available.

(3) The plaintiffs demonstrated that the action could withstand a motion to dismiss. In some cases this is a tough hurdle to get over. But in copyright cases the threshold can be met relatively easily — simply alleging ownership of a copyright and unlawful copying satisfies this element.

(4) The plaintiffs proved that the discovery was likely to lead to identifying information that will permit service of process. Getting the subscriber information from the ISPs would allow names to be associated with the IP addresses, for further action to be taken.

(The above 4-factor test is drawn from Columbia Ins. Co. v. seescandy. com, 185 F.R.D. 573, 578–80 (N.D.Cal.1999).)

So ISPs across the country will be getting peppered with more subpoenas, and sending out letters to their John Doe subscribers, giving deadlines to move to quash the subpoenas. More mad scramble to protect identities is on its way.

Sexting minor’s lawsuit against website moves forward despite her violation of federal law

Doe v. Peterson, 2011 WL 1120172 (E.D.Mich. March 24, 2011)

When plaintiff Jane Doe was seventeen years old, she took some nude photos of herself and sent them over the internet to her boyfriend. Somehow the photos ended up on an adult website owned by defendants. Doe brought a civil cause of action against defendants for violation of the federal child pornography laws and for intrusion upon seclusion, public disclosure of private facts, intentional infliction of emotional distress, and negligence.

The defendants pled an interesting affirmative defense to Doe’s claims — in pari delicto. A plaintiff’s actions that are found to be in pari delicto are just as bad or worse than what the plaintiff is suing over, so in cases like that the court will not award relief. Doe moved to strike this affirmative defense. The court granted the motion.

Although the court found that “it seems clear that [Doe was] guilty of violating federal laws prohibiting the production and distribution of child pornography,” it held that as a matter of law the doctrine of in pari delicto was not available to the defendants as an affirmative defense.

The court refused to allow “broad common-law barriers to relief where a private suit serv[ed] important public purposes.” Doe was a member of the class sought to be protected by the statute she had violated, and was not equally culpable as defendants allegedly were in permitting the distribution of the images. In this respect, it was not clear that Doe was of greater or equal fault than defendants, so the in pari delicto defense did not apply.

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