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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Bill McLaren, Jr. v. Microsoft Corp.

Case No. 05-97-00824, 1999 Tex. App. Lexis 4103 (Tex. Crt. of App., May 28, 1999)

In this suit, plaintiff alleged that his former employer's act of reading e-mail stored in a "personal folder" on plaintiff's personal office computer, and disseminating that e-mail to third parties, violated his right of privacy under Texas law. The Texas Court of Appeals disagreed, and affirmed the trial court's dismissal of his action.

Plaintiff was employed by Microsoft Corporation ("Microsoft") which provided him with a personal computer and access to the company's e-mail system to aid him in the performance of his job duties. Access to this e-mail system was gained by use of a network password, which password was known by both plaintiff and his employer. In addition, Microsoft permitted plaintiff to maintain on this PC a "personal folder" in which he could store e-mail he received. Access to this folder was via a second password known only to plaintiff.

Plaintiff was accused of "sexual harassment." He informed Microsoft that e-mail in his personal folder would aid him in disproving these allegations, and requested that Microsoft not tamper with it. Microsoft subsequently discharged plaintiff and, according to plaintiff, obtained the e-mail from his personal folder.

Plaintiff claimed that defendant's conduct "intruded upon plaintiff's seclusion or solitude or into his private affairs," and thus invaded his privacy. Under Texas law:


There are two elements to this cause of action: (1) an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person.

The court found that plaintiff's claim failed to pass muster under this standard. Notwithstanding Microsoft's provision to plaintiff of a password accessible personal folder for the storage of e-mail, the court held that plaintiff had no reasonable expectation of privacy in the e-mail he stored inside it. The court based this conclusion on its finding that such e-mail had first traveled through various points in Microsoft's company e-mail system, where it was accessible by Microsoft. Said the court:


As asserted by McLaren in his petition, e-mail was delivered to the server-based "inbox" and was stored there to read. McLaren could leave his e-mail on the server or he could move the message to a different location. According to McLaren, his practice was to store his e-mail messages in "personal folders." Even so, any e-mail messages stored in McLaren's personal folders were first transmitted over the network and were at some point accessible by a third-party. Given these circumstances, we cannot conclude that McLaren, even by creating a personal password, manifested -- and Microsoft recognized -- a reasonable expectation of privacy in the contents of the e-mail messages such that Microsoft was precluded from reviewing the messages.

Moreover, even if plaintiff had a reasonable expectation of privacy in his e-mail, Microsoft's intrusion was not sufficiently offensive to be actionable under Texas law. Given plaintiff's claim that the e-mail at issue was relevant to the allegations of sexual harassment lodged against him, Microsoft's:


interest in preventing inappropriate and unprofessional comments, or even illegal activity, over its e-mail system would outweigh McLaren's claimed privacy interest in those communications.

It should be noted that "pursuant to the Texas Rules of Appellate Procedure, unpublished opinions [such as this one] shall not be cited as authority by counsel or by a court."

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