Accidentally putting confidential information on network drive is not slander

Mr. Morrow was a division manager for a division of UPS in Oregon. In 1993, his general manager gave him a poor performance evaluation. The GM documented the evaluation meeting, saved it on his computer, printed out two hard copies (one for his working file, the other for his boss) and then deleted the file.

The general manager did not realize it, but when he saved files they were saved on the O (network) drive, and they were not deleted. A few months later, Mr. Morrow received an anonymous message on his voice mail to check out the O drive. There he found a copy of the general manager's memo, with his personal, confidential information for all his co-workers to see.

Mr. Morrow quit and sued for constructive discharge, libel and false light invasion of privacy. In a Court of Appeals decision in February, 1996, he lost on all three counts.

The most interesting aspect was the court's decision regarding the libel. In order for it to be libel, the information must be published. A publication can be spoken, written in a letter or put on the Internet. In this case, the court assumed that putting such a memo on the network drive could be considered publication. It ruled against the employee, however, because the publication was inadvertent. The general manager didn't know that he was publishing it.

In order to reach the decision it did, the court had to assume that it was reasonable for the general manager not to know that his files were being saved to a network drive.

What do you think? Should a reasonable manager know how computer files are stored before placing confidential information there? Send us an e-mail.

Case Excerpts

In January 1991, Piedra became the general manager of II Morrow. Plaintiff [a division manager] worked under Piedra's supervision. Plaintiff avers that in February 1992, Piedra commenced a series of actions that were intended to make plaintiff's working conditions so intolerable that he would be forced to quit. In March 1993, plaintiff received an anonymous phone call on his voice mail at work. The caller advised plaintiff to look on the "O" drive on his personal work computer. Plaintiff found a file entitled "Jim" on that drive. He opened the file and discovered that it was a memo written by Piedra describing a meeting that he had had with plaintiff in December 1992. In the memo, Piedra said in part: "On December 11th [plaintiff] and I sat down to review his performance. I started the evaluation by telling [plaintiff] that I was still not convinced that he really wanted to be a Division Manager for United Parcel Service. I explained to [plaintiff] that I ranked his participation and dedication below the other division managers. He asked me how I could possibly come to that conclusion. I preceded [ sic] to ask [plaintiff] a number of questions, such as:

1. When is the last time you were at work prior to 8:00 am. When was the last time you stayed past 5:00 pm. When is the last time you participated with the group when they worked on the weekend.
2. When was the last time the senior staff came to you for your advise [ sic] and or imput [ sic] on one of the projects you are currently working on.
3. How do you feel you do in the area of keeping me completely informed on where you are in bringing in some of the projects you are currently working on, (new signature pad, new battery, new tooling).
4. How well do you feel you do in communicating with your fellow senior staff.

"After asking several questions like the ones listed [plaintiff] begin [ sic] to admit that he was not doing or performing like some of the other senior staff. He told me that after reading the current appraisal form he had to admit that he was rather poor in some of the communication elements. He explained that he thought he was working hard but not sharing his accomplishments with others. He also stated that he has always felt that if [ sic] could not get the job done in eight hours, that he felt he was not being effective. "I explained to [plaintiff] that in every ones' [ sic] career there were times that extra effort was needed--especially at a level of management that he is presently at. I said that with all that has happened with Diad II and with his problems earlier in the year (sexual harrassment [ sic] charge), I more than expected additional efforts on his part. I explained that I constantly get calls concerning where we are on the evaluation of additional signature pads, and I am always at a lost [ sic] as to what to answer because of not being fully up to speed where the process is. [Plaintiff] stated that I was right and he sees now how important it is to work on his communication skills. "At this time I'm sure that my talk did some good with [plaintiff] and that I will see marked improvement in the areas I discussed with him. How long [plaintiff] will continue to improve only time will tell. "My overall evaluation of [plaintiff] is still somewhat low comparing him to the rest of the senior staff."

Piedra testified that he had met with plaintiff in December 1992 to discuss plaintiff's work performance. After the meeting, Piedra contacted Wesley Hughes, a vice president of UPS, and discussed the meeting that he had had with plaintiff. Hughes directed Piedra to send him a memorandum summarizing the meeting.

In his affidavit [for trial] Piedra said, in part:

5. I began drafting the memorandum after receiving Mr. Hughes' directive. As I was drafting the memorandum, I saved it in a file labeled "Jim." I believed that I was saving the memorandum on my terminal only. I believed also that no one else on the network could access the file while as [ sic] I was working on it.
6. After I completed the memorandum, I printed two copies of it. I sent one copy to Mr. Hughes, as he had requested. I placed the other copy in a confidential file. No one had access to the file.
7. I then took steps to delete the file labeled "Jim." After I did this, I believed that the file no longer existed. I believed also that the only two copies of the memorandum were the copies I printed for Mr. Hughes and myself.
8. After [plaintiff] resigned in April 1993, I learned that I had failed to delete the file labeled 'Jim' from the network. As I now understand, a document drafted on an employee's computer terminal would be saved on the network's 'O drive.' In this case, the file labeled 'Jim' was saved on the O drive after I had 'deleted' it. This means that other employees who used the O drive could have accessed the memorandum. In order to do so, however, they would have had to call up the list of files on the O drive, find the file labeled 'Jim', and then retrieve the file and open it.

Shortly after plaintiff discovered the memorandum on the "O" drive, he submitted his resignation to Hughes.

The Restatement (Second) of Torts Section 577 defines what constitutes publication: "(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed."

In this case, the evidence is uncontroverted that defendants did not intentionally or negligently publish the memorandum on the "O" drive. The only evidence is that publication, other than to Hughes, was inadvertent. Restatement Section 577, comment O, discusses the effect of an accidental communication: "The accidental communication of matter defamatory of another to a third person is not a publication if there was no negligence. Thus, an act that is not intended to communicate to a third person matter that is defamatory and which does not create an unreasonable risk of the communication is not a publication." In Prosser and Keeton on Torts Section 113, at 803 (5th ed 1984), the authors agree with the Restatement comment: "Courts have never imposed strict liability on the defendant for accidental and non-negligent publication of defamatory matter. There is in fact no liability for publication which the defendant did not intend and could not reasonably anticipate, as in the case of words spoken with no reason to suppose that anyone but the plaintiff would overhear them, or a sealed letter sent to the plaintiff himself which is unexpectedly opened and read by another." (Footnotes omitted.)

Plaintiff did not offer any evidence in the summary judgment record from which an objectively reasonable juror could infer that Piedra acted negligently. The only evidence is that Piedra believed that he had deleted the "Jim" file and that it no longer existed on the data base. We conclude that the trial court properly granted summary judgment on plaintiff's claim for libel because there is no evidence that defendants intentionally or negligently communicated the contents of the memorandum to a third party.

The gravamen of a claim for placing a person in a false light involves an invasion of privacy. In Dean v. Guard Publishing Co., 73 Or.App. 656, 699 P.2d 1158 (1985), we held that a person who places another before the public in a false light could be liable for damages. We said that the elements of the tort are as stated in the Restatement (Second) of Torts Section 652E: "One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

"(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

"(b) the actor has knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

Thus, like defamation, a false light claim also requires publication. However, the publication requirement is different for a false light claim in that the matter published must be to the public generally or to a large number of persons. Doe v. Portland Health Centers Inc., 99 Or.App. 423, 429, 782 P.2d 446 (1989), rev. dismissed, 310 Or. 476 (1990). Restatement (Second) of Torts Section 652D comment a, discusses the "publicity" requirement for an invasion of privacy claim:

"The form of invasion of the privacy covered in this Section depends upon publicity given to the private life of the individual. 'Publicity,' as it is used in this Section, differs from 'publication,' as that term is used in Section 577 in connection with liability for defamation. 'Publication,' in that sense, is a word of art, which includes any communication by the defendant to a third person. 'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public." (Emphasis supplied.)

In this case, plaintiff has not presented evidence that defendants gave "publicity" to Piedra's memorandum such that it reached or was sure to reach either the public generally or a large number of persons in plaintiff's work community. In fact, the only evidence regarding the publicity given to the memorandum was that an anonymous caller knew that it existed on a private company's data base under a nondescript title.

Without evidence that the memorandum was communicated to the public generally or to a large number or persons, plaintiff has not established an essential element of the tort. Summary judgment was also properly granted as to this claim.

[Editor's Note from Fair Measures: the scary thing about this case is how ruthless the court was in quoting the e-mail exactly with a [sic] after each misspelling. Run those spell checkers, folks!]

MORROW v. II MORROW, INC., et al., 139 Or.App.
212, 911 P.2d 964 (Oregon Court of Appeals, February 21, 1996)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.