*1 BIBY, Appellant, Gerald Plaintiff — REGENTS, THE UNI OF OF
BOARD LIN AT NEBRASKA OF
VERSITY
COLN; in his Indi Darrell W. Capacity; Donald
vidual Official and Offi Individual in his 1-10, Does, Capacity; John
cial Capaci Individual Official
their Cauble, Wood;
ties; De Ken Richard Appellees.
fendants — Liberties Union
American Civil
Nebraska, Behalf Amicus on Appellant.
No. 04-3878. Appeals, Court of
United States
Eighth Circuit. 20, 2005.
Submitted: Aug.
Filed: *2 university’s
er and the honor failure to its (TLA) technology licensing agreement party, depriving with a third thus him of royalty income. affirm. We at university’s worked the Industri- Agricultural (IAPC), al Products Center which seeks to increase industrial and oth- agricultural er nonfood uses of commodi- ties. a technology As transfer coordinator IAPC, Biby private for worked with sector companies identify research and mar- for keting opportunities technologies. new negotiations a project When for were suc- cessful, agreement by the was formalized university’s of Technology Office (OTT). managed Transfer That office also university’s policy patentable on dis- resulting coveries from work for done university by its employees developed with use of or facil- policy provided ities. The such dis- coveries were to be offered to the universi- ty in writing, and the institution would presented Counsel who argument be- applying assume the costs of if appellant Mary half of the C. Gaines it accepted the offer within six months. Lincoln, Nebraska. Royalties accrued from the in- use of the vention were to be divided between Wiltse, Lincoln, argued, John C. Ne- inventor and university, the in- braska, for appellee. receiving
ventor at percent least fifteen MURPHY, BYE, SMITH, the net Before revenues. Judges.
Circuit IAPC, While was employed at the director, worked with the Milford MURPHY, Judge. Circuit Hanna, Qi Fang to develop horticul- employment as a technology After applications tural for polylactic acid at University transfer coordinator (PLA). Brown, Bill owner of Corn Card terminated, Nebraska Lincoln was Ger- International, expressed an interest us- ald Regents sued its Board of ing PLA to biodegradable manufacture several university officials. The district Hanna, plastic phone Biby, cards. court1 summary judgment awarded to the Fang technology modified the to suit that claims, defendants on all appeals purpose and it called Soft Touch II. In its ruling adverse them. two of He March 1997 offered the invention to rights claims his constitutional were university, provisional patent ap- and a violated comput- plication his office was subsequently filed. Donald Bataillon, Joseph The Honorable F. United braska. Judge States District for the District of Ne- agreement an with the vice chancellor the associate rights it mar- ownership accorded research, statement claim- filed a verified technology. keting of PLA Associate nonprofit organization status with Vice Chancellor Helmuth directed IAPC Office declar- and Trademark Patent *3 give him all the it regard- information had or law the under contract “rights that Card, ing Corn and on March 5 it fur- conveyed to and remain with” been have him 975 pages nished documents with university regard Touch the with Soft an attached memo from Director Hanna. us does contain II. The record before not repre- Hanna wrote that these documents rejection by acceptance a formal either “all the regarding sented information Corn university of invention of the offer the Card, GemPlus and card related [sic] Biby the others. by made and had located that work” IAPC but university into July In 1997 the entered joint not meeting did cover a held licensing agreement or TLA Corn with Helmuth or conversations with phone with university TLA the The identified Card. Helmuth him. and Darrell dean II technology Touch owner of the Soft the agricultural and director of the research right Corn the exclusive gave and Card university, Biby at the division instructed market, printable plastic and sell develop, times in not early several 1999 to contact technology incorporating cards phone directly Corn Card and told that Mexico, States, and Canada. in the United go communication with Corn Card must reports diligently he worked Biby that through legal reports counsel. that project Brown to market the success- with relationship Helmuth and Nelson with began In 1998 Brown discussions fully. strained, and he acknowledges became inter- Gemplus, a card manufacturer with openly lying that he accused them about using Touch marketing cards Soft ested Gemplus project and of the Corn Card and and technology Europe. Brown II breaching April the TLA. On 1999 would hoped university that Gemplus other of Soft Touch II and the inventors Gemplus assignment to of Corn allow an transferring an their assignment executed TLA that the rights under the Card’s university. to the rights the invention territory expanded could marketing be compliance In with the terms of making worldwide. was involved TLA, dispute between Corn Card Card, plans Gemplus Corn university arbitra- was submitted to IAPC kept people and he claims that he May 19, parties On 1999 the execut- tion. them that he OTT informed about Terms Reference ed a document called assignment and market was told they agreed other provide in which each approved. Biby fur- expansion would be all relevant documents nonprivileged university no one at ther claims that in a tele- Helmuth plans af- opposition to the until expressed phone on June conversation Gemplus ter both through university go his com- needed in re- financial investments made extensive that it had all of puter files make sure approval project. of the liance on initial required to turn the documents it was February pursuant In 1999 Corn Card threatened Helmuth added over. legal against university sign a university policy Biby to take action would have to assign- and that a member approve Gemplus if it did consent to search form ment, alleging police department be in would that it would breach of the Biby said apparently signing. The centered to witness the dispute the TLA. need having a it had that he would be uncomfortable by Cargill, claim Inc. that on a made police officer involved and asked Helmuth material, not tried to withhold but copy him a of the university policy to fax was never asked for anything Gemplus. procedure. establishing Helmuth Computer specialist Anthony Spulak Cauble, from Biby a memo Ken who faxed then arrived at office plain- with a police was the chief of de- Spulak clothes officer. intended to search partment, copy and a Biby’s computer files after the officer first policy technology and networks. The him, went over the consent form with memo from Chief Cauble stated that the Biby sign refused to the consent form. He “internal on the use of Consent to referred to the computer policy Helmuth Search forms is that the rights of the had faxed and said that he assumed the only individual can be waived to a commis- *4 search related investigation to an im- university police sioned member” of the proper or illegal use since there was no The department. university computer pol- repair or maintenance issue. He said that also icy which Helmuth faxed has a section threatened, intimidated, he had been and That section privacy. states that the coerced university officials and reiterat- only search legiti- will files if a ed his concern integrity about the of his exists, such repair mate reason as needed documents being compromised. Spulak of equipment, or maintenance investigation replied that he would not conduct a search illegal resources, or improper use of and consent, without the signed and he and the “response public to a request, records ad- departed. others judicial ministrative or order request or That Biby afternoon met with Associate discovery in the course of litigation.” Vice Chancellor Dean to search Consent forms are not men- and Director gave Biby Hanna. Nelson tioned, policy explicitly but the states that letter prepared he had which Biby directed applicable its terms are to e-mail.2 “to provide immediate access to all busi- When the attempted ness, to re- licensing, tech transfer and research view paper and computer files, records, files on or communications relating videotaped -he the encounter. The International, Corn Card whether person first to arrive at his office an paper form, was or electronic to University operations Uher, analyst, Micha in- Operations who Analysis and special- tended to go through his paper Biby files. personnel” ist so the university turn could said that he did not want leaving files over all documents for the arbitration. his office because he was Biby concerned that said he understood that the universi- their integrity would compromised. be ty files, He needed the and the others told him claimed that was making IAPC the that the necessary OTT files were those dealing scapegoat in the dispute with Card, Corn Card with Corn Gemplus, and Cargill. and said he would not participate in They also him told there had been a mis- destruction Biby of evidence. informed understanding morning because Uher Uher that pages the 975 which IAPC had only go was through paper files with turned over to Helmuth had not Biby included and to copy documents rather than personal his notes and records or anything remove They them. assured him that the about Gemplus. He told Uher that he had computer specialist would not delete or 2. The record also contains another version of "request discovery also lists in the computer policy university says which the litigation” course of exception as an to user has employees been e-mail, available to all since it explicitly applies and but it implemented was January 1998. This does not mention consent to search forms. time to files, Biby complete need return another but that he would alter Biby that he process indicated filing about questions answer could forward all of the e-mail files to his might relevant. which files be and indicate says Spulak own account. he later re- following present Biby agreed be the e-mail and to Hel- viewed forwarded Spulak could and morning so Uher appeared muth those to be files files. and paper collect to Corn related Card. part the file Biby videotaped the first dispute The between 4. Uher arrived collection on June August Sep- Corn Card settled or first, paper him files that handed September 1999. In tember Dean Nelson pages in the not been included had leave, placed Biby on paid administrative over March. told turned alleging misrepresented had to Gemplus related these documents dealings himself with Corn notes, personal or were his Cargill authority Gemplus having obligate copies Spulak them. After Uher made university contractually that he a uniformed officer from the arrived with disobeyed the order to contact university police department, he directly. The dean Corn Card met with Wood, president vice that Richard *5 October, Biby in he was terminated on and general university, had de- counsel for the 12,1999. November necessary not to signed cided consent was computer search his because the Biby of Regents sued the Board and it. said he had been Spulak owned also university officers in several their official files, through to all to instructed search individual on 2003. capacities and dispute, to those related to the and copy The named individual defendants included any personal or irrelevant files. Helmuth, close Dean Associate Vice Chancellor Spulak they if Biby Nelson, Wood, asked and officer Vice President and Chief thought these instructions were consistent Biby wages sought Cauble. lost and bene- from previ- with Dean Nelson’s letter fits, rights, royal- and patent past future They day. ties, ous both looked at Nelson’s damages, punitive compensatory and replied they thought fees, letter and that attorney costs. and His second then instructions were consistent. complaint alleged amended numerous fed- you Spulak, “You can start wherever action, including eral and state causes of contract, want.” speech for breach claims of free violation, and a tortious interference with Spulak said he start with the wanted relationship. business files, Biby logged Lotus Notes e-mail summary Spulak allow conducted counts were dismissed access. All key using judgment, Biby’s appeal word search terms related to concerns § 42 1983 dispute. Spulak reports claims under U.S.C. for violation immediately guaranteed by closed file that of the Fourth and any privacy that he not to e- and denial of due appeared dispute relate to Fourteenth Amendments the Fifth Four- ap- process guaranteed by himself all of the files mailed peared At the time of sum- to be related to arbitration so teenth Amendments. mary judgment could them the named defendants that he deliver to Helmuth. e- counts Darrell Donald Spulak Before was able review the were in their indi- Pega- on the and Richard Wood mail files had retained capacities, he was and the district court system, Biby complained sus that vidual they qualified feeling Spulak says ill. that that were entitled to he offered ruled 850 Fourth claim government Amendment of
immunity employees on the noninvesti- a clearly had violated gatory, purposes, because work-related as well right and a rea- constitutional established as for of investigations work-related regarded would not misconduct, have sonable official judged by should be to be unlawful. The court their conduct standard of reasonableness under all the due claim after con- dismissed the circumstances. Under reasonable- Biby had not established a cluding standard, inception ness both the either the interest scope intrusion must be rea- claim the TLA. It reasoned that .... sonable patent assignment coercion regarding 725-26, Id. at 107 S.Ct. denies would be barred the state statute of that he consented to the and claims that the TLA not pro- limitations and did permitting that he was coerced into it and payments royalty Biby. vide for only gave it became when obvi- court’s Our review district ous he had no other choice. grant summary judgment is de novo. Appellees respond did not Miller, Omni Health v. Behavioral expectation have reasonable (8th Cir.2002). “Summary F.3d computer files because the evidence,
judgment warranted if is allows searches when light viewed in the most favorable to the request is a discovery there in litigation. genuine nonmoving party, shows that no They contend that the legit- issue of fact exists material files, reasons imate to search the is entitled moving party judgment as a the search was in scope, reasonable matter of law.” Bockelman MCI Biby gave his consent to the search. Ap- *6 (8th Inc., Worldcom, 528, 403 F.3d 531 pellees argue they further that are entitled Cir.2005). summary judg survive a To qualified to immunity because has not qualified on immunity, ment motion based demonstrated that a clearly he had estab- a must a of plaintiff assert violation a right of privacy lished or that were on right, right show that this constitutional is that notice their conduct violated rights his established, and clearly raise an issue of the under circumstances. as to whether material fact the defendant would known that the conduct in have O’Connor, Supreme Court In question clearly violated the established listed several factors which are in relevant City v. right. Habiger Fargo, 80 F.3d of determining employee’s whether an expec Cir.1996). (8th 289, 295 of privacy tation in workplace is rea
Biby’s
allega
Fourth
sonable,
Amendment
and one such factor is the exis
constitutionally
are
he had a
tions
that
tence of a workplace privacy policy. See
protected
interest in
com
privacy
his work
718-19,
id. at
S.Ct.
In both
puter,
university’s
that
reasons for
versions of the
computer policy
searching
computer
illegitimate,
were
here,
in
the record
user is
scope
that the
the search was un
expect
informed not to
if
privacy
the uni
Supreme
reasonable. He relies on the
versity has a legitimate reason to conduct
in
Ortega,
Court’s decision O’Connor v.
480 a search.
specifically
The user is
told that
U.S.
107 S.Ct.
[PJublic
the con-
a
ing
discovery
intrusions on
to
in
request
the course of
protected
stitutionally
privacy
interests
litigation. Although
contends that
a
for the
has not shown that he had
rea-
true motivation
university’s
expectation
in his com-
sonable
him and
find a reason to fire
search was to
files,
puter
and even
he had met that
evidence,
if
dis
the record
tamper
O’Connor,
requirement
threshold
he has
was
with
the search
conducted
closes that
that
failed to show
the search of his com-
arbitration,
for
discovery period
in the
puter
inception
was
unreasonable
or
to the arbi
key
that it
words related
used
He has also failed to make a
scope.
show-
tration,
Biby was
in advance
that
appellees’
sufficient to overcome
de-
necessary
locate docu
that a
was
search
a
qualified immunity,
fense of
defense at
A search
ments
to the arbitration.
related
case but
issue
not O’Connor. He
justi
employee’s office is
government
of a
clearly
that a
has
demonstrated
estab-
“when
are rea
fied
there
under O’Connor
by
right of his
violated
lished
was
grounds
suspecting
[it]
sonable
or that
official would
search
reasonable
necessary
noninvestigatory
...
is
scope
the inception
have known that
726, 107
purpose.”
Id. at
work-related
Biby’s
the search would violate
Fourth
Moreover,
might
an official
S.Ct. 1492.
rights.
Amendment
conclude
We
Biby’s
from
reasonably have concluded
did not
sum-
granting
district court
err
conduct that he had con
statements and
mary judgment
his Fourth Amendment
In
circum
sented
the search.
claim.
it
stances
cannot conclude that would
we
due
claim as articu
to a
official
have been clear
reasonable
complaint
in his second
lated
amended
is
discovery
that his efforts
obtain the
university’s
that the
failure to abide
unlawful. See Saucier
materials were
him
deprived
TLA with Corn Card
of ben
2151, 150
Katz,
194, 202, 121
533 U.S.
S.Ct.
due as
efits he was
an owner
(2001).
L.Ed.2d 272
II
He
technology.
Touch
recast
to Soft
however,
appeal,
and as
argument
key word
complains that the
that his status
an inventor of Soft
serts
unreasonably
that it
broad and
gives
rights
roy
II
Touch
yielded
personal or
files
many
confidential
a party
He concedes that he is not
alties.
He
project.
unrelated to
TLA,
argues
the Corn Card
suggests
the search
have been
would
*7
an
patent policy gives him in
university’s
to sit
if he had been allowed
reasonable
policy provides
in it
terest
because
computer specialist conduct
down with the
argues
royalties to inventors. He also
ing
the files with
the search
review
though
claim is
time barred even
this
permissible
scope
him.
is
in
A search
his
did not file
suit until June 2003.
adopted
when
measures
are reason
“the
year
statute
Biby contends
the four
of
objectives
ably
of the search
related to
25-207(3)
§
in
limitations
Neb.Rev.Stat.
O’Connor,
excessively
and not
intrusive.”
to run in
1999 when he
April
did not start
(internal
726,
Bank 269 Neb. 690 N.W.2d (2005). 778, 782 TLA obligate The did not party royalty
either to disburse funds to
Biby, making him at most an incidental
beneficiary without rights. enforceable
See id. at might 783. That he have had a claim to ownership or a DAYTON DEVELOPMENT separate agreement royalties with the COMPANY, a Minnesota university is immaterial respect. corporation, Appellee, cognizable property Without a interest TLA, Biby’s due claim must fail. We conclude that the district court SERVICES, GILMAN FINANCIAL did not err dismissing this claim. INC., corporation, a Delaware Appellant.
For these reasons judgment district court is affirmed. No. 03-4071.
BYE, United Judge, Appeals, Circuit. States Court of concurring. Eighth Circuit. To majority the extent the opinion can be read to disavow Gerald expecta- Submitted: Dec. 2004. tion of computer, I disagree. Aug. Filed: University’s The privacy policy created an expectation the contents of his
are to a degree private. certain The
specifically states “a user can expect the
files and data generates he or she to be
private information.” In addition to the
policy, the fact password
protected and located in private office
is further evidence of the heightened ex-
pectation of privacy. He regularly also use,
used his personal his e- personal
mail for correspondence, and he
kept highly proprietary confidential infor- Moreover,
mation in his computer.
University acted as if expecta- he had an