Metropolitan News-Enterprise


Thursday, April 3, 2003


Page 1


Lawyers Spar Over Order Barring Ex-Employee From Sending E-Mails

Attorney for Former Intel Worker Says Restriction on Client Is Unconstitutional


By KENNETH OFGANG, Staff Writer/Appellate Courts


A 4-year-old injunction barring a former Intel Corporation employee from bombarding the company’s current workforce with anti-Intel e-mail messages violates free speech and wrongly expands the common law theory on which Intel’s suit was based, the ex-employee’s lawyer told the California Supreme Court yesterday.

William McSwain, who represents Kourosh Kenneth Hamidi, urged the justices to overturn a Third District Court of Appeal ruling upholding the injunction as a remedy for what the trial court determined to be a trespass to chattel.

That theory has always required physical damage to the plaintiff’s property, McSwain told the justices, arguing that any change should come from the Legislature, rather than the courts.

That argument struck a sour note with Chief Justice Ronald M. George, who cited California’s history as a leader in redefining the common law, saying the state had been responsible for “very drastic turns and developments in tort law.”

Trespass Theory

But McSwain took issue with the chief justice’s suggestion that using trespass theory to protect a business owner from having thousands and thousands of unwanted e-mails sent through its server might be appropriate. “The doctrine of judicial restraint is not a doctrine of judicial convenience,” the attorney argued, as he urged the court to also consider “the collateral consequences to the Internet.”

The case has attracted widespread interest among free speech advocates, intellectual property scholars and the technology community.

Former Intel engineer Hamidi, who was fired from the Santa Clara-based company after a work-injury dispute, made headlines when he drove a horse and buggy to the chipmaker’s headquarters and dropped off 40,000 anti-Intel messages.

After his 1995 dismissal from Intel, he barraged the company’s computer server by sending several different e-mails complaining of unfair work practices. More than 100,000 e-mails went to as many as 30,000 of the company’s workers.

Sacramento Superior Court Judge John Lewis and the Third District Court of Appeal panel ruled that Intel had the same right to police its e-mail system as it would its factories and office hallways. The court said the e-mails were a literal intrusion into the workplace.

The Electronic Frontier Foundation, the American Civil Liberties Union, the Thomas Jefferson Center for the Protection of Free Expression, and other workers’ rights and civil liberties group backed Hamidi, while other large employers sided with Intel.

The argument focused largely on tort theory, with Justice Joyce L. Kennard appearing more sympathetic to the arguments by McSwain, a Philadelphia attorney who wrote a Harvard Law Review article on the case while still a student.

Intel, she said, would more appropriately have sued for nuisance, defamation, or interference with prospective advantage.

The chief justice, however, suggested that Intel’s position is consistent with the more modern view of the trespass tort, in which a defendant may be held liable for an act which impairs “the quality and value of the chattel.” The volume of e-mail sent by Hamidi appears to qualify, George commented.

Personal E-Mail Permitted

McSwain, however, argued that there was no diminution of the quality or value of Intel’s e-mail system. Every Intel employee probably gets “tens, if not hundreds” of unsolicited e-mails every day, he said, not to mention a “reasonable” amount of personal e-mail that company policy permits.

Hamidi has been treated differently than all of the other people who send non-business-related e-mail to Intel’s workers, the attorney said, only because the company does not like the content of his messages.

But Michael A. Jacobs, the San Francisco attorney representing Intel, said Hamidi’s e-mails were more disruptive than “reunion invitations” or other types of personal e-mail that the company allows its workers to receive.

“Computers are bought for productivity,” he declared. “...If that tool can be diverted to an unproductive use, the value of the chattel is degraded.”

Kennard disagreed.

“Where have you shown an actual—and the key word is actual—injury to Intel’s computers?” she asked.

The very fact that Intel’s right to a remedy for Hamidi’s actions remains in dispute eight years after he was fired is proof enough, Jacobs argued. “Intel did everything it could” to stop the barrage short of litigation, he said, including an attempt to block the messages—which Hamidi circumvented by changing e-mail addresses—as well as the sending of a demand letter.

That led Court of Appeal Justice Richard Mosk, sitting on assignment, to ask whether the victim of a trespass to chattel must demand that the person stop before a lawsuit is brought. Jacobs responded that no demand was necessary if the plaintiff has suffered damage.

The argument featured the active participation of Mosk, as well as Justice Steven Perren of this district’s Div. Six. The two were chosen to sit in place of Justices Ming Chin and Marvin Baxter, who recused themselves.

George said prior to the argument that the court was “honored to have a Justice Mosk sitting with us again,” in reference to the jurist’s father, the late Justice Stanley Mosk, a member of the court for 37 years.

The case is Intel Corporation v. Hamidi, S103781.

The court yesterday also took up the closely watched case of Viner v. Sweet, S101964.

Los Angeles attorney Mark B. Helm urged the court to overturn a ruling by this district’s Div. Seven that held the “case-within-a-case” approach to proving causation in a legal malpractice case inapplicable when the alleged negligence involved a transaction such as a business acquisition rather than the mishandling of a lawsuit.

Under the Div. Seven ruling, Helm argued, “you’re making the plaintiff better off than the plaintiff would have been if the malpractice had not occurred” because the plaintiff need not prove that it would have gotten a better result.

But Patricia Glaser of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro contended that under Helm’s argument, transactional malpractice would be impossible to prove.

Glaser’s clients, Dove Audio founder Michael Viner and his wife, actress Deborah Raffin, sued attorney Charles Sweet and the Washington, D.C. firm of Williams & Connolly, winning an $8 million judgment. They claim Sweet mishandled negotiations concerning their exit from Dove Audio, Inc, which they co-founded but left after a series of disagreements with a major stockholder.

Her clients, Glaser said, had “no chance to raise the issue of a better deal” because “their attorney told them they had the deal they wanted.”


Copyright 2003, Metropolitan News Company