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Taking up a much-awaited case in which a disgruntled former employee bombarded Intel Corporation workers with tens of thousands of anticompany e-mails, the California Supreme Court appeared to be headed for a 4-to-3 split after oral arguments in early April. Whether that means victory for Intel or for former employee Kourosh Hamidi, however, is not clear. While three justices appeared to side with Intel, three others were apparently leaning toward Hamidi. Justice Carlos Moreno, the swing vote, didn’t tip his hand. Intel Corp. v. Hamidi has generated widespread interest. Eight amici curiae � including the U.S. Chamber of Commerce and eBay Inc. � lined up alongside Intel. The American Civil Liberties Union and the Service Employees International Union supported Hamidi. Trespass To Chattel The facts of the case are undisputed. Hamidi, fired in 1995, flooded Intel employees’ computers with as many as 100,000 anti-Intel e-mail messages in a two-year period. The company sued for “trespass to chattel” � company computers, in this instance. A Sacramento County state court trial judge eventually issued an injunction against Hamidi, prohibiting him from e-mailing Intel employees. In 2001 California’s Third District Court of Appeal affirmed, stating that while trespass to chattel requires some harm to the computers, that standard was met by the loss of productivity Intel suffered as its employees dealt with Hamidi’s messages. “Nothing in the statute,” the court held in a 2-to-1 ruling, “suggests any intent to eliminate the application of common law remedies, such as trespass to chattels, to electronic communications.” Attorneys for Hamidi argued in court papers that the ruling “threatens to stifle” e-mail and eliminates the age-old distinction between trespass to real property and trespass to chattel. “In order to maintain a trespass to chattel action,” they wrote, “a plaintiff must prove either actual harm to the chattel itself, or that he has been dispossessed of his chattel for a period of time.” Damage To Productivity? Those arguments got tough questions from Chief Justice Ronald George and Justice Janice Rogers Brown, among others. George asked Hamidi’s lawyer, William McSwain, an associate at Philadelphia’s Dechert, why 30,000 � 100,000 “vitriol”-filled e-mails intentionally targeting a company’s computers couldn’t be viewed as harm. Another justice on the panel noted that Hamidi’s e-mails were, in a way, an unauthorized use of Intel’s computers, and, therefore, could be construed as damage. Intel, he noted, had asked Hamidi to stop sending the messages. On the other side, three justices seemed bothered by the concept that Intel � and other companies � could consider e-mail a trespass equal to that of trespassing on property. One of these justices noted that Hamidi had offered to remove any Intel employees who so desired from his list, and that about 450 had taken him up on the offer. “So where is the damage to productivity?” the justice asked Morrison & Foerster partner Michael Jacobs, who represented Intel. A decision is expected before the end of June.
A version of this article originally appeared in The Recorder, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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