What is a company’s recourse when a former employee deletes e-mails and other company electronic information before he leaves? A case from Indiana provides a lesson.
When Meridian Financial Advisors began serving as Receiver for bankrupted OCMC, Inc., it took possession of a number of OCMC computers, including one belonging to Joseph A. Pence, OCMC's President and CEO. In the course of its investigation, Meridian learned that OCMC employees, including Mr. Pence, had deleted e-mails and computer documents detailing improper conduct just before leaving OCMC. Meridian filed suit against Pence and others in connection with OCMC's collapse, including a claim for civil damages under the Computer Fraud and Abuse Act (“CFAA”) for damaging OCMC’s protected computers. Meridian Fin. Advisors Ltd. v. Pence, No. 07-995 (S.D. Ind. 1/14/11).
A person violates CFAA by:
knowingly caus[ing] the transmission of a program, information, code, or
command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer. 18 U.S.C. § 1030(a)(5)(A)(i).
Civil penalty provisions under the CFAA allow for recovery of compensatory damages when the damage exceeds $5,000.
Pence argued that even if a deletion occurred there was no damage to OCMC computers and, therefore, no damage under the CFAA. The federal district court rejected this argument, pointing out that the statute defines "damage" as:
any impairment to the integrity or availability of data, a program, a system, or information 18 U.S.C. § 1030(e)(8).
The court reasoned that a "deletion of files impairs the availability of data and, as such, is covered under the statute" (citing other cases with similar holdings, Monson v. Whitby Sch., Inc., No 3:09-CV-1096, 2010 WL 3023873, at *3 (D. Conn. Aug. 2, 2010) (under some circumstances, deletion of an employee’s own e-mail can give rise to a CFAA claim); and Condux Int’l, Inc. v. Haugum, No. 08-4824, 2008 WL 5244818, at *8 (D. Minn. Dec. 15, 2008) (same with deletion of evidence of computer use)).
The court went on to address whether Pence deleted the e-mails without authorization, a required element for recovery under the CFAA. While the courts are not in agreement on this issue, the U.S. Court of Appeals for the Seventh Circuit (which has jurisdiction over Illinois, Indiana, and Wisconsin) recognizes that previously authorized use of a computer system may become unauthorized when an employee breaches his duty of loyalty to his employer. Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420 (7th Cir. 2006). The district court in Pence followed the holding in Citrin, although a question of fact remained as to whether Pence actually deleted the e-mails. Because of the open question of fact, the court could not grant Meridian's motion for summary judgment.
Deletion of files is becoming common practice when employees, typically key employees, leave an organization. Where possible, employers should try to prevent the deletions and take steps to better manage their important data. However, when these kinds of deletions happen, in the right cases, the CFAA can be a valuable tool for employers to remedy their damages.