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. 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.