Bokenfohr v. Gladen et al
Filing
142
Opinion and Order. The Court GRANTS Gladen's Motion (# 121 ) for Partial Summary Judgment. The Court DIRECTS the parties to file a Joint Status Reportno later than September 9, 2019, to include a proposed case-managementschedule for moving this case forward as to all remaining issues. IT IS SO ORDERED. See attached order for further details. Signed on 8/22/19 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LORI BOKENFOHR,
Plaintiff,
3:17-cv-01870-BR
OPINION AND ORDER
v.
CYNTHIA GLADEN and
CHRISTINE GUIDERA,
Defendants.
KRISTEN L. TRANETZKI
EDWARD A. PIPER
Angeli Law Group LLC
121 S.W. Morrison Street
Suite 400
Portland, OR 97204
(503) 954-2232
Attorneys for Plaintiff
JOHN J. DUNBAR
Larkins Vacura LLP
121 S.W. Morrison St
Suite 700
Portland, OR 97204
(503) 222-4424
Attorneys for Defendant Cynthia Gladen
1 - OPINION AND ORDER
JEFFREY M. EDELSON
HEATHER ST. CLAIR
Markowitz Herbold PC
1211 S.W. Fifth Ave
Suite 3000
Portland, OR 97204
(503) 295-3085
Attorneys for Defendant Christine Guidera
BROWN, Senior Judge.
This matter comes before the Court on Defendant Cynthia
Gladen’s Motion (#121) for Partial Summary Judgment.
The Court
concludes the record is sufficiently developed, and, therefore,
oral argument is not required to resolve this Motion.
For the reasons that follow, the Court GRANTS Gladen’s
Motion.
BACKGROUND
Because the parties are familiar with the facts underlying
this action, the Court sets forth only the facts taken from the
parties’ filings related to Gladen’s Motion that are relevant to
the pending Motion.
In 2015 Defendant Cynthia Gladen was married to Kenneth
Kolarsky.1
Kenneth Kolarsky was having an affair at that time
with Plaintiff Lori Bokenfohr, an attorney who lived and
practiced law in Canada.
1
Kolarsky is not a party to this action.
2 - OPINION AND ORDER
Plaintiff alleges in her Complaint that in 2015 she owned a
laptop computer on which she stored “a broad range of personal
and confidential information” including her banking, financial,
and tax records; her medical records and the medical records of
her children; and her “private photo albums.”
Compl. at ¶ 12.
In July 2015 Kolarsky purchased two solid-state computer
drives (SSD) or “flash drives.”2
Kolarsky purchased the SSDs
with a “family credit card,” but he intended one of the SSDs to
be a gift for Plaintiff.
Plaintiff alleges she intended to use
the SSD to create a back-up copy of the contents of her laptop.
In mid-October 2015 Plaintiff asked Kolarsky to copy the
information from Plaintiff’s laptop to the SSD.
Kolarsky tried
to do so, but his “attempt appeared to fail, following which
Kolarsky reformatted the SSD.”
Compl. at ¶ 14.
Kolarsky and
Plaintiff believed the reformatting process permanently deleted
any information that might have been copied from Plaintiff’s
laptop to the SSD.
Plaintiff and Kolarsky were mistaken,
however, and “[a]lthough information was not readily
accessible, the backup of [Plaintiff’s] computer on the [SSD],
including the photos [at issue in this action] remained and could
be recovered and restored by a computer vendor.”
Statement of Agreed Facts at ¶ 4.
2
Am. Joint
Kolarsky retained possession
The parties also refer to the SSDs as flash drives. The
Court refers to them as SSDs for purposes of this Opinion and
Order.
3 - OPINION AND ORDER
of the SSD after the attempted backup and kept the SSD at the
home he shared with Gladen.
The parties dispute precisely where and when Gladen found
the SSD at issue.
The record reflects Gladen found the SSD in
either her family car or in her family home.
This factual
dispute, however, is immaterial to resolution of the Motion now
before the Court.
At some point Gladen attempted to open the SSD, but she
could not open or read anything on the SSD on her personal
computer.
Gladen, therefore, took the SSD and her personal
computer to Office Depot for technical assistance.
The Office
Depot employee was able to restore some of the information on the
SSD.
In late January 2016 Gladen returned to Office Depot to
have the files restored, and “certain information was restored
from the drive [and a] copy of the [SSD] was made onto an
external hard drive.”
Am. Joint Statement of Agreed Facts at
¶ 8.
On January 23, 2016, Home Depot “completed its restoration
work” on the SSD.
Am. Joint Statement of Agreed Facts at ¶ 11.
As a result of the restoration “Gladen saw photographs and other
data copied from the [SSD].”
Am. Joint Statement of Agreed Facts
at ¶ 11.
On November 21, 2017, Plaintiff filed a Complaint in this
Court against Gladen and Christine Guidera in which she brought
4 - OPINION AND ORDER
claims against Gladen for violation of the Computer Fraud and
Abuse Act (CFAA), 18 U.S.C. § 1030; against both Defendants for
violation of Oregon Revised Statutes § 30.865(1)(d); against both
Defendants for conversion; against both Defendants for replevin;
and against both Defendants for “intrusion upon seclusion.”
On February 21, 2019, Gladen filed a Motion for Partial
Summary Judgment as to all of Plaintiff’s claims except for her
First Claim for violation of CFAA against Gladen.
Also on
February 21, 2019, Guidera filed a Motion for Summary Judgment as
to all of Plaintiff’s claims against her.
On June 13, 2019, the Court issued an Opinion and Order in
which it granted Guidera’s Motion for Summary Judgment, dismissed
Plaintiff’s claims against Guidera, and granted in part and
denied in part Gladen’s Motion for Partial Summary Judgment.
On June 4, 2019, Gladen filed a Motion (#121) for Partial
Summary Judgment as to Plaintiff’s First Claim for violation of
CFAA against Gladen.
The Court took Gladen’s Motion under
advisement on July 12, 2019.
STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
5 - OPINION AND ORDER
See also Fed. R.
Civ. P. 56(a).
The moving party must show the absence of a
genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).
Emeldi v. Univ. of Or.,
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts
demonstrating the existence of genuine issues for trial."
In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one. . . .
The non-moving party must
do more than show there is some 'metaphysical doubt' as to the
material facts at issue."
Id. (citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
6 - OPINION AND ORDER
judgment."
F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.
2009)(citation omitted).
When the nonmoving party's claims are
factually implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."
LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149
(9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
In her First Claim Plaintiff alleges Gladen violated CFAA
“[b]y directing the computer technician to recover, restore, and
reformat data on the SSD, and by causing that data to be copied
to her personal devices and accounts, and by subsequently
accessing and disseminating that data . . . without
authorization.”
Compl. at ¶ 27.
Plaintiff appears to bring her
claim against Gladen pursuant to § 1030(a)(2)(C) of CFAA, which
imposes civil and/or criminal liability on a person who
“intentionally accesses a computer without authorization or
exceeds authorized access, and thereby obtains . . . information
7 - OPINION AND ORDER
from any protected computer.”3
CFAA defines a computer as
an electronic, magnetic, optical, electrochemical,
or other high speed data processing device
performing logical, arithmetic, or storage
functions, and includes any data storage facility
or communications facility directly related to or
operating in conjunction with such device, but
such term does not include an automated typewriter
or typesetter, a portable hand held calculator, or
other similar device.
18 U.S.C. § 1030(e)(1).
Plaintiff asserts the SSD is a “high
speed data processing device performing logical, arithmetic, or
storage functions.”
Gladen, however, asserts Plaintiff’s claim for violation of
CFAA fails as a matter of law because the SSD is not a “dataprocessing device,” and, therefore, it is not a “computer” within
the meaning of CFAA.
When interpreting terms in CFAA the Ninth Circuit explained:
[W]e start with the plain language of the statute.
See United States v. Blixt, 548 F.3d 882, 887 (9th
Cir. 2008). [When] CFAA does not define [a term
in the statute] it is a “fundamental canon of
statutory construction . . . that, unless
otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common
meaning.” Perrin v. United States, 444 U.S. 37,
42 (1979).
LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132–33 (9th Cir.
2009).
Accordingly, the Ninth Circuit in Brekka looked to the
3
When it was enacted in 1984 CFAA was exclusively a
criminal statute. Congress amended CFAA in 1994 to include a
civil cause of action for conduct that involves any one of
several factors. See 18 U.S.C. § 1030(g).
8 - OPINION AND ORDER
dictionary definition of the term at issue and applied that
“ordinary, contemporary, common meaning” to the term.
Id. at
1133.
CFAA does not define “data processing device” and neither
the parties nor the Court could find any case defining the
phrase.
Accordingly, this Court’s “analysis begins with the
ordinary meanings of [the words in the phrase at issue] at the
time that [CFAA] was adopted.”
909, 911 (9th Cir. 2005).
United States v. Carter, 421 F.3d
To discover the ordinary meaning of
the words at issue the Court “follow[s] the common practice of
consulting dictionary definitions” of the terms.
Id.
The parties do not dispute the SSD is a device, but they
disagree as to whether it is a “data-processing” device.
Webster’s Dictionary has defined “data-processing” consistently
since 1976 as “the conversion and subsequent processing of raw
data.”
Webster’s Third New Int’l Dictionary (1976).
See also
Webster’s New Collegiate Dictionary (8th ed. 1977)(“the
converting (as by computers) of crude information into usable or
storable form); Webster’s New Collegiate Dictionary (9th ed.
1985)(“the converting of raw data to machine-readable form and
its subsequent processing (as storing, updating, combining,
rearranging, or printing out) by a computer”); Webster’s Third
New Int’l Dictionary (1993)(“the conversion of raw data to
machine-readable form and its subsequent processing (as
9 - OPINION AND ORDER
storing, updating, combining, rearranging, or printing out) by a
computer”); Webster’s Third New Int’l Dictionary (2002)(“the
conversion of raw data to machine-readable form and its
subsequent processing (as storing, updating, combining,
rearranging, or printing out) by a computer”); Webster Online
Dictionary, https://www.merriamwebster.com/dictionary/
data%20processing (“the conversion of raw data to
machine-readable form and its subsequent processing (as storing,
updating, combining, rearranging, or printing out) by a
computer”).
Thus, according to the “common meaning” of “data
processing,” a data-processing device is one that converts raw
data to machine-readable form and then processes the machinereadable data.
Gladen’s expert explains the “input and output” of data from
the SSD at issue as follows:
[T]he primary function of the controller [in the
SSD] . . . is to control the input and output of
data to and from the [SSD]. How the controller
controls the input and output of the data is
immaterial because the input and output of the
data is always machine-readable data. . . . With
[the] firmware [in the SSD at issue], the
controller and the [SSD] do[] not convert raw data
unto usable, storable, or machine-readable data.
The controller does not convert raw data from any
source. . . . The controller receives as input
machine-readable data from the computer [that]
the [SSD] is attached to and returns the same
machine-readable data upon request. The [SSD]
does not store, process, or convert raw data
. . . . The [SSD] cannot convert raw data, cannot
perform data processing, and is not a computer.
10 - OPINION AND ORDER
Decl. of Gary Liao at ¶ 4.
Plaintiff’s expert states in his Digital Forensics
Examination Report that the SSD at issue is a computer because it
contains a SandForce SF-2281 flash controller.
The controller is the brains of the device and is
an ASIC (Application Specific Integrated Circuit)
which contains a CPU (Central Processing Unit) as
well as its own internal memory according to the
manufacturer’s specification sheet in Exhibit 10.
The SSD also internally stores and runs firmware
which acts as an OS (Operating System) for
embedded systems like the SSD.
Decl. of Joanna Perini-Abbott, Ex. 1 at 4.
Plaintiff’s expert,
however, does not assert the SSD at issue converts raw data to
machine-readable form or that it is capable of doing so.
In
fact, Gladen’s expert notes in his Declaration that he has
reviewed Plaintiff’s expert report, and “[t]he presence of this
firmware does not change the primary function of the controller,
which is to control the input and output of data to and from the
[SSD]. . . .
With that firmware, the controller and the [SSD]
do[] not convert raw data unto usable, storable, or machinereadable data.”
Liao Decl. at ¶ 4.
Pursuant to the common
meaning of data processing, therefore, the SSD does not perform
that function, and, therefore, it is not a computer.
This
conclusion is supported by the few cases in which the use of SSD,
flash, or thumb drives4 were involved in CFAA claims.
4
For
Courts use the terms SSD, flash drive, and/or thumb drive
to describe the same kind device as the one at issue here.
11 - OPINION AND ORDER
example, in Lewis-Burke Associates, LLC v. Widder the plaintiff
brought a claim for violation of CFAA on the ground that the
defendant exceeded his authorized access when he copied certain
files from a computer onto a flash drive.
The court noted:
In this case, there is no dispute that Widder was
still an employee of Lewis–Burke when he allegedly
copied certain files to a thumb drive. Plaintiff
claims that some of the access occurred on
defendant's very last day as an employee of
plaintiff; however, it still occurred while he was
in the employ of plaintiff, and plaintiff has not
alleged to have terminated his authorization to
access the computer before he left its employ.
There is an allegation that the forensic exam
demonstrated that certain files were accessed from
the thumb drive after Widder was no longer
employed by Lewis–Burke; however, there is no
allegation that Widder accessed his Lewis–Burke
computer or the server after his employment with
it ended. The CFAA is concerned with access to a
computer; Widder's alleged access to data on a
thumb drive would fall outside of plaintiff's CFAA
claim.
725 F. Supp. 2d 187, 193 (D.D.C. 2010)(emphasis added).
The
court, therefore, assumed, without evaluation of the definition
of “computer,” that a thumb or flash drive is not a computer
within the meaning of the CFAA.
Similarly, in Dresser-Rand
Company v. Jones an employer brought an action against two former
managers alleging violation of CFAA on the ground that the
defendants had “accessed their work laptops and downloaded
thousands of documents to external [hard drives and flash
drives].”
957 F. Supp. 2d 610, 620 (E.D. Pa. 2013).
evaluating the plaintiff’s claim the court noted:
12 - OPINION AND ORDER
In
If [the defendants] were authorized to access
their work laptops and to download files from
them, they cannot be liable under the CFAA even if
they subsequently misused those documents to
compete against [the plaintiff].
* * *
[The plaintiff’s] forensic computer expert noted
that [the defendants] accessed [the plaintiff’s]
files [that they had downloaded onto external hard
drives and flash drives] after [the defendants]
ceased their employment. . . . Because[,
however,] the CFAA is based on unauthorized
computer access — not file access, the fact that
[the files that the defendants had downloaded onto
external hard drives and flash drives] were
accessed [later] on [the defendants’] computers is
immaterial to the CFAA claim.
Because [the defendants] had authorization to
access their work computers, they did not hack
into them when they downloaded the files. Their
alleged [later] misuse of the [downloaded] files
may have remedies under other laws, but not under
the CFAA.
Id.
The court, therefore, assumed, without evaluating the
definition of “computer,” that flash drives are not computers
under CFAA.
On this record the Court concludes the plain meaning of
“computer” under CFAA does not include the SSD at issue here.
The Court, therefore, concludes Plaintiff has not established a
claim against Gladen for violation of CFAA.
Accordingly, the Court grants Gladen’s Motion for Partial
Summary Judgment as to Plaintiff’s First Claim for violation of
CFAA against Gladen.
13 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court GRANTS Gladen’s Motion (#121)
for Partial Summary Judgment.
The Court DIRECTS the parties to file a Joint Status Report
no later than September 9, 2019, to include a proposed casemanagement schedule for moving this case forward as to all
remaining issues.
IT IS SO ORDERED.
DATED this 22nd day of August, 2019.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
14 - OPINION AND ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LORI BOKENFOHR,
Plaintiff,
3:17-cv-01870-BR
OPINION AND ORDER
v.
CYNTHIA GLADEN and
CHRISTINE GUIDERA,
Defendants.
KRISTEN L. TRANETZKI
EDWARD A. PIPER
Angeli Law Group LLC
121 S.W. Morrison Street
Suite 400
Portland, OR 97204
(503) 954-2232
Attorneys for Plaintiff
JOHN J. DUNBAR
Larkins Vacura LLP
121 S.W. Morrison St
Suite 700
Portland, OR 97204
(503) 222-4424
Attorneys for Defendant Cynthia Gladen
1 - OPINION AND ORDER
JEFFREY M. EDELSON
HEATHER ST. CLAIR
Markowitz Herbold PC
1211 S.W. Fifth Ave
Suite 3000
Portland, OR 97204
(503) 295-3085
Attorneys for Defendant Christine Guidera
BROWN, Senior Judge.
This matter comes before the Court on Defendant Cynthia
Gladen’s Motion (#121) for Partial Summary Judgment.
The Court
concludes the record is sufficiently developed, and, therefore,
oral argument is not required to resolve this Motion.
For the reasons that follow, the Court GRANTS Gladen’s
Motion.
BACKGROUND
Because the parties are familiar with the facts underlying
this action, the Court sets forth only the facts taken from the
parties’ filings related to Gladen’s Motion that are relevant to
the pending Motion.
In 2015 Defendant Cynthia Gladen was married to Kenneth
Kolarsky.1
Kenneth Kolarsky was having an affair at that time
with Plaintiff Lori Bokenfohr, an attorney who lived and
practiced law in Canada.
1
Kolarsky is not a party to this action.
2 - OPINION AND ORDER
Plaintiff alleges in her Complaint that in 2015 she owned a
laptop computer on which she stored “a broad range of personal
and confidential information” including her banking, financial,
and tax records; her medical records and the medical records of
her children; and her “private photo albums.”
Compl. at ¶ 12.
In July 2015 Kolarsky purchased two solid-state computer
drives (SSD) or “flash drives.”2
Kolarsky purchased the SSDs
with a “family credit card,” but he intended one of the SSDs to
be a gift for Plaintiff.
Plaintiff alleges she intended to use
the SSD to create a back-up copy of the contents of her laptop.
In mid-October 2015 Plaintiff asked Kolarsky to copy the
information from Plaintiff’s laptop to the SSD.
Kolarsky tried
to do so, but his “attempt appeared to fail, following which
Kolarsky reformatted the SSD.”
Compl. at ¶ 14.
Kolarsky and
Plaintiff believed the reformatting process permanently deleted
any information that might have been copied from Plaintiff’s
laptop to the SSD.
Plaintiff and Kolarsky were mistaken,
however, and “[a]lthough information was not readily
accessible, the backup of [Plaintiff’s] computer on the [SSD],
including the photos [at issue in this action] remained and could
be recovered and restored by a computer vendor.”
Statement of Agreed Facts at ¶ 4.
2
Am. Joint
Kolarsky retained possession
The parties also refer to the SSDs as flash drives. The
Court refers to them as SSDs for purposes of this Opinion and
Order.
3 - OPINION AND ORDER
of the SSD after the attempted backup and kept the SSD at the
home he shared with Gladen.
The parties dispute precisely where and when Gladen found
the SSD at issue.
The record reflects Gladen found the SSD in
either her family car or in her family home.
This factual
dispute, however, is immaterial to resolution of the Motion now
before the Court.
At some point Gladen attempted to open the SSD, but she
could not open or read anything on the SSD on her personal
computer.
Gladen, therefore, took the SSD and her personal
computer to Office Depot for technical assistance.
The Office
Depot employee was able to restore some of the information on the
SSD.
In late January 2016 Gladen returned to Office Depot to
have the files restored, and “certain information was restored
from the drive [and a] copy of the [SSD] was made onto an
external hard drive.”
Am. Joint Statement of Agreed Facts at
¶ 8.
On January 23, 2016, Home Depot “completed its restoration
work” on the SSD.
Am. Joint Statement of Agreed Facts at ¶ 11.
As a result of the restoration “Gladen saw photographs and other
data copied from the [SSD].”
Am. Joint Statement of Agreed Facts
at ¶ 11.
On November 21, 2017, Plaintiff filed a Complaint in this
Court against Gladen and Christine Guidera in which she brought
4 - OPINION AND ORDER
claims against Gladen for violation of the Computer Fraud and
Abuse Act (CFAA), 18 U.S.C. § 1030; against both Defendants for
violation of Oregon Revised Statutes § 30.865(1)(d); against both
Defendants for conversion; against both Defendants for replevin;
and against both Defendants for “intrusion upon seclusion.”
On February 21, 2019, Gladen filed a Motion for Partial
Summary Judgment as to all of Plaintiff’s claims except for her
First Claim for violation of CFAA against Gladen.
Also on
February 21, 2019, Guidera filed a Motion for Summary Judgment as
to all of Plaintiff’s claims against her.
On June 13, 2019, the Court issued an Opinion and Order in
which it granted Guidera’s Motion for Summary Judgment, dismissed
Plaintiff’s claims against Guidera, and granted in part and
denied in part Gladen’s Motion for Partial Summary Judgment.
On June 4, 2019, Gladen filed a Motion (#121) for Partial
Summary Judgment as to Plaintiff’s First Claim for violation of
CFAA against Gladen.
The Court took Gladen’s Motion under
advisement on July 12, 2019.
STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
5 - OPINION AND ORDER
See also Fed. R.
Civ. P. 56(a).
The moving party must show the absence of a
genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).
Emeldi v. Univ. of Or.,
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts
demonstrating the existence of genuine issues for trial."
In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one. . . .
The non-moving party must
do more than show there is some 'metaphysical doubt' as to the
material facts at issue."
Id. (citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
6 - OPINION AND ORDER
judgment."
F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.
2009)(citation omitted).
When the nonmoving party's claims are
factually implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."
LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149
(9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
In her First Claim Plaintiff alleges Gladen violated CFAA
“[b]y directing the computer technician to recover, restore, and
reformat data on the SSD, and by causing that data to be copied
to her personal devices and accounts, and by subsequently
accessing and disseminating that data . . . without
authorization.”
Compl. at ¶ 27.
Plaintiff appears to bring her
claim against Gladen pursuant to § 1030(a)(2)(C) of CFAA, which
imposes civil and/or criminal liability on a person who
“intentionally accesses a computer without authorization or
exceeds authorized access, and thereby obtains . . . information
7 - OPINION AND ORDER
from any protected computer.”3
CFAA defines a computer as
an electronic, magnetic, optical, electrochemical,
or other high speed data processing device
performing logical, arithmetic, or storage
functions, and includes any data storage facility
or communications facility directly related to or
operating in conjunction with such device, but
such term does not include an automated typewriter
or typesetter, a portable hand held calculator, or
other similar device.
18 U.S.C. § 1030(e)(1).
Plaintiff asserts the SSD is a “high
speed data processing device performing logical, arithmetic, or
storage functions.”
Gladen, however, asserts Plaintiff’s claim for violation of
CFAA fails as a matter of law because the SSD is not a “dataprocessing device,” and, therefore, it is not a “computer” within
the meaning of CFAA.
When interpreting terms in CFAA the Ninth Circuit explained:
[W]e start with the plain language of the statute.
See United States v. Blixt, 548 F.3d 882, 887 (9th
Cir. 2008). [When] CFAA does not define [a term
in the statute] it is a “fundamental canon of
statutory construction . . . that, unless
otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common
meaning.” Perrin v. United States, 444 U.S. 37,
42 (1979).
LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132–33 (9th Cir.
2009).
Accordingly, the Ninth Circuit in Brekka looked to the
3
When it was enacted in 1984 CFAA was exclusively a
criminal statute. Congress amended CFAA in 1994 to include a
civil cause of action for conduct that involves any one of
several factors. See 18 U.S.C. § 1030(g).
8 - OPINION AND ORDER
dictionary definition of the term at issue and applied that
“ordinary, contemporary, common meaning” to the term.
Id. at
1133.
CFAA does not define “data processing device” and neither
the parties nor the Court could find any case defining the
phrase.
Accordingly, this Court’s “analysis begins with the
ordinary meanings of [the words in the phrase at issue] at the
time that [CFAA] was adopted.”
909, 911 (9th Cir. 2005).
United States v. Carter, 421 F.3d
To discover the ordinary meaning of
the words at issue the Court “follow[s] the common practice of
consulting dictionary definitions” of the terms.
Id.
The parties do not dispute the SSD is a device, but they
disagree as to whether it is a “data-processing” device.
Webster’s Dictionary has defined “data-processing” consistently
since 1976 as “the conversion and subsequent processing of raw
data.”
Webster’s Third New Int’l Dictionary (1976).
See also
Webster’s New Collegiate Dictionary (8th ed. 1977)(“the
converting (as by computers) of crude information into usable or
storable form); Webster’s New Collegiate Dictionary (9th ed.
1985)(“the converting of raw data to machine-readable form and
its subsequent processing (as storing, updating, combining,
rearranging, or printing out) by a computer”); Webster’s Third
New Int’l Dictionary (1993)(“the conversion of raw data to
machine-readable form and its subsequent processing (as
9 - OPINION AND ORDER
storing, updating, combining, rearranging, or printing out) by a
computer”); Webster’s Third New Int’l Dictionary (2002)(“the
conversion of raw data to machine-readable form and its
subsequent processing (as storing, updating, combining,
rearranging, or printing out) by a computer”); Webster Online
Dictionary, https://www.merriamwebster.com/dictionary/
data%20processing (“the conversion of raw data to
machine-readable form and its subsequent processing (as storing,
updating, combining, rearranging, or printing out) by a
computer”).
Thus, according to the “common meaning” of “data
processing,” a data-processing device is one that converts raw
data to machine-readable form and then processes the machinereadable data.
Gladen’s expert explains the “input and output” of data from
the SSD at issue as follows:
[T]he primary function of the controller [in the
SSD] . . . is to control the input and output of
data to and from the [SSD]. How the controller
controls the input and output of the data is
immaterial because the input and output of the
data is always machine-readable data. . . . With
[the] firmware [in the SSD at issue], the
controller and the [SSD] do[] not convert raw data
unto usable, storable, or machine-readable data.
The controller does not convert raw data from any
source. . . . The controller receives as input
machine-readable data from the computer [that]
the [SSD] is attached to and returns the same
machine-readable data upon request. The [SSD]
does not store, process, or convert raw data
. . . . The [SSD] cannot convert raw data, cannot
perform data processing, and is not a computer.
10 - OPINION AND ORDER
Decl. of Gary Liao at ¶ 4.
Plaintiff’s expert states in his Digital Forensics
Examination Report that the SSD at issue is a computer because it
contains a SandForce SF-2281 flash controller.
The controller is the brains of the device and is
an ASIC (Application Specific Integrated Circuit)
which contains a CPU (Central Processing Unit) as
well as its own internal memory according to the
manufacturer’s specification sheet in Exhibit 10.
The SSD also internally stores and runs firmware
which acts as an OS (Operating System) for
embedded systems like the SSD.
Decl. of Joanna Perini-Abbott, Ex. 1 at 4.
Plaintiff’s expert,
however, does not assert the SSD at issue converts raw data to
machine-readable form or that it is capable of doing so.
In
fact, Gladen’s expert notes in his Declaration that he has
reviewed Plaintiff’s expert report, and “[t]he presence of this
firmware does not change the primary function of the controller,
which is to control the input and output of data to and from the
[SSD]. . . .
With that firmware, the controller and the [SSD]
do[] not convert raw data unto usable, storable, or machinereadable data.”
Liao Decl. at ¶ 4.
Pursuant to the common
meaning of data processing, therefore, the SSD does not perform
that function, and, therefore, it is not a computer.
This
conclusion is supported by the few cases in which the use of SSD,
flash, or thumb drives4 were involved in CFAA claims.
4
For
Courts use the terms SSD, flash drive, and/or thumb drive
to describe the same kind device as the one at issue here.
11 - OPINION AND ORDER
example, in Lewis-Burke Associates, LLC v. Widder the plaintiff
brought a claim for violation of CFAA on the ground that the
defendant exceeded his authorized access when he copied certain
files from a computer onto a flash drive.
The court noted:
In this case, there is no dispute that Widder was
still an employee of Lewis–Burke when he allegedly
copied certain files to a thumb drive. Plaintiff
claims that some of the access occurred on
defendant's very last day as an employee of
plaintiff; however, it still occurred while he was
in the employ of plaintiff, and plaintiff has not
alleged to have terminated his authorization to
access the computer before he left its employ.
There is an allegation that the forensic exam
demonstrated that certain files were accessed from
the thumb drive after Widder was no longer
employed by Lewis–Burke; however, there is no
allegation that Widder accessed his Lewis–Burke
computer or the server after his employment with
it ended. The CFAA is concerned with access to a
computer; Widder's alleged access to data on a
thumb drive would fall outside of plaintiff's CFAA
claim.
725 F. Supp. 2d 187, 193 (D.D.C. 2010)(emphasis added).
The
court, therefore, assumed, without evaluation of the definition
of “computer,” that a thumb or flash drive is not a computer
within the meaning of the CFAA.
Similarly, in Dresser-Rand
Company v. Jones an employer brought an action against two former
managers alleging violation of CFAA on the ground that the
defendants had “accessed their work laptops and downloaded
thousands of documents to external [hard drives and flash
drives].”
957 F. Supp. 2d 610, 620 (E.D. Pa. 2013).
evaluating the plaintiff’s claim the court noted:
12 - OPINION AND ORDER
In
If [the defendants] were authorized to access
their work laptops and to download files from
them, they cannot be liable under the CFAA even if
they subsequently misused those documents to
compete against [the plaintiff].
* * *
[The plaintiff’s] forensic computer expert noted
that [the defendants] accessed [the plaintiff’s]
files [that they had downloaded onto external hard
drives and flash drives] after [the defendants]
ceased their employment. . . . Because[,
however,] the CFAA is based on unauthorized
computer access — not file access, the fact that
[the files that the defendants had downloaded onto
external hard drives and flash drives] were
accessed [later] on [the defendants’] computers is
immaterial to the CFAA claim.
Because [the defendants] had authorization to
access their work computers, they did not hack
into them when they downloaded the files. Their
alleged [later] misuse of the [downloaded] files
may have remedies under other laws, but not under
the CFAA.
Id.
The court, therefore, assumed, without evaluating the
definition of “computer,” that flash drives are not computers
under CFAA.
On this record the Court concludes the plain meaning of
“computer” under CFAA does not include the SSD at issue here.
The Court, therefore, concludes Plaintiff has not established a
claim against Gladen for violation of CFAA.
Accordingly, the Court grants Gladen’s Motion for Partial
Summary Judgment as to Plaintiff’s First Claim for violation of
CFAA against Gladen.
13 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court GRANTS Gladen’s Motion (#121)
for Partial Summary Judgment.
The Court DIRECTS the parties to file a Joint Status Report
no later than September 9, 2019, to include a proposed casemanagement schedule for moving this case forward as to all
remaining issues.
IT IS SO ORDERED.
DATED this 22nd day of August, 2019.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
14 - OPINION AND ORDER
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