DENISE J. CASPER, District Judge.
Plaintiff Children's Hospital Corporation ("Children's Hospital") has filed this action against Defendant Isin Cakir ("Cakir"), alleging that Cakir is in wrongful possession of the data on a laptop computer Cakir used during the course of his employment with Children's Hospital. D. 1. Children's Hospital asserts claims for replevin and conversion under Massachusetts law.
A moving party is entitled to summary judgment where there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). Material facts are those that carry the potential "to affect the outcome of the suit under the applicable law."
This civil action is related to
From October 2010 to June 19, 2014, Cakir was employed as a post-doctoral fellow at Children's Hospital working in a laboratory run by Dr. Umut Ozcan ("Ozcan"). D. 57 ¶ 1, D. 67-1 ¶ 1. On October 6, 2010, Cakir signed a document entitled the Participation Agreement for Persons Using the Funds and Facilities of Children ("Participation Agreement"). D. 57 ¶ 11, D. 67-1 ¶ 11. Children's Hospital had two other policies in place during this period: the Acceptable Use of Computer and Network Resources ("Acceptable Use Policy") and the Policy on Data Management, Retention Availability — Investigator and Staff Obligations ("Data Management Policy"). D. 57 ¶ 12-15; D. 67-1 ¶ 12-15. The "Acceptable Use Policy" states that it covers "[anyone] who uses [Children's Hospital's] Computer Resources and related services or accesses the information stored there" and "[any] hardware or software systems that store, communicate, or can access CHB's electronic information (collective, the `Computer and Network Resources')." D. 57 ¶ 13; D. 67-1 ¶ 13; D. 59-6 at 1. Under the Acceptable Use Policy, any "[i]nformation stored on or transmitted over CHB's Computer and Network Resources (including email) is the sole and exclusive property of [Children's Hospital]." D. 57 ¶ 13; D. 67-1 ¶ 13; D. 59-6 at 1.
Between July 2013 and June 2014, Cakir used a 13-inch Macbook Air laptop ("the Laptop"), at least in part for work-related activity. D. 57 ¶ 2, D. 67-1 ¶ 2. On July 9, 2013, Serkan Cabi, a post-doctoral fellow in Ozcan's lab sent an email to Mario Salazar, a research assistant in Ozcan's lab responsible for procuring equipment, requesting that Salazar place an order for a 13-inch MacBook Air, among other supplies. D. 57 ¶ 4; ¶ D. 67-1 ¶ 4. Cabi told Salazar that Ozcan had approved the order. D. 57 ¶ 4, D. 67-1 ¶ 4. According to Cakir, Ozcan represented to Cakir that the Laptop was a gift to thank Cakir for helping with a grant submission. D. 67-1 ¶ 2. Ozcan asked Cakir to make sure that he registered the computer with Children's Hospital. D. 57 ¶ 5, D. 67-1 ¶ 5. The Laptop was paid for by Children's Hospital. D. 57 ¶ 5-8; D. 67-1 ¶ 5-8. After the Laptop was delivered to Cakir, Cakir registered the Laptop with Children's Hospital. D. 57 ¶ 16; D. 67-1 ¶ 16.
In March 2014, Children's Hospital made a "mirror image" of the Laptop, copying the entire contents of the Laptop. D. 53-1 ¶ 1-2; D. 64-1 ¶ 1-2. The parties dispute whether Children's Hospital still has this mirror image. D. 64-1 ¶ 1; D. 73 at 2-3. A few months later, on June 19, 2014, Children's Hospital informed Cakir that he was no longer working in Ozcan's lab. D. 57 ¶ 17; D. 67-1 ¶ 17. On August 7, 2014, Children's Hospital informed Cakir that it owned the Laptop and requested that Cakir return it to Children's Hospital. D. 57 ¶ 18-19, D. 67-1 ¶ 18-19. Cakir, however, did not return the Laptop as requested. D. 57 ¶ 20, D. 67-1 ¶ 20. In August 2014, Cakir provided Children's Hospital with a thumb drive containing at least some of the research data that was on the Laptop; there is a dispute between the parties regarding whether this thumb drive contained all of the research data that was on the Laptop. D. 53-1 ¶ 3; D. 64-1 ¶ 3.
On August 21, 2014, at Children's Hospital's request, Cakir delivered the Laptop to TechFusion, a computer forensic firm, and TechFusion made a copy of the Laptop ("Forensic Image"). D. 57 ¶ 21; D. 67-1 ¶ 21, D. 53-1 ¶ 4, D. 64-1 ¶ 4. Children's Hospital paid TechFusion for this service, although there is a dispute regarding whether Children's Hospital has paid TechFusion in full for this service. D. 57 ¶ 21; D. 67-1 ¶ 21. Cakir and TechFusion entered into a Non-Disclosure Agreement, whereby TechFusion would not give Children's Hospital the Forensic Image without Cakir's written consent. D. 57 ¶ 22; D. 67-1 ¶ 22.
On October 31, 2014, Children's Hospital sent a letter to Cakir through his then-counsel requesting the return of the Laptop and "all files, hard drives and metadata . . . stored or located on" it. D. 57 ¶ 23; D. 67-1 ¶ 23. Cakir retrieved the Laptop from TechFusion, deleted certain files from it, and then delivered the Laptop to Children's Hospital on November 17, 2014. D. 57 ¶ 24-25; D. 67-1 ¶ 24-25; D. 53-1 ¶ 6; D. 64-1 ¶ 6. Cakir contends that the deleted files were exclusively personal and Children's Hospital contends that the deleted files contained research-related material. D. 53-1 ¶ 11, D. 64-1 ¶ 11. Cakir still has not authorized TechFusion to deliver the Forensic Image to Children's Hospital. D. 57 ¶ 26-27; D. 67-1 ¶ 26-27.
Conversion involves "the exercise of dominion or control over the personal property of another."
Children's Hospital contends that it owns the Laptop because it purchased the Laptop and paid for it. D. 56 at 6; D. 57 ¶ 5-8; D. 67-1 ¶ 5-8. Cakir does not dispute that Children's Hospital paid for the Laptop. However, Cakir contends that Children's Hospital did not own the Laptop because Dr. Ozcan acted as an agent of Children's Hospital and gave the Laptop as a gift to Cakir. D. 67 at 7. Cakir contends that Ozcan's gifting of the Laptop binds Children's Hospital because Ozcan acted with "apparent authority" from Children's Hospital.
Under Massachusetts law, "the principal has liability for the agent's acts toward third parties only if the agent was acting with the actual or apparent authority of the principal in that transaction."
Cakir, however, does not point to any conduct by Children's Hospital that occurred before the time that Ozcan delivered the Laptop to Cakir that would lead Cakir to conclude reasonably that Children's Hospital had consented to have Ozcan give the Laptop as a gift on its behalf. Cakir points only his own deposition testimony and that of another postdoctoral researcher in Ozcan's lab indicating that Ozcan gave performance-based raises to researchers in his lab. D. 67 at 8. That fact does not constitute conduct by Children's Hospital, much less conduct that would render it reasonable for Cakir to believe that Children's Hospital had authorized Ozcan to gift him the Laptop on its behalf. Given that it is undisputed that Children's Hospital purchased the Laptop, there is no genuine dispute of material fact over whether Children's Hospital owns the Laptop.
Because Children's Hospital owns the Laptop, Children's Hospital has also succeeded in showing, without any genuine dispute of material fact, that it owns the data on the Laptop. The "Acceptable Use Policy" covers "[any] hardware or software systems that store, communicate, or can access CHB's electronic information (collectively, the `Computer and Network Resources')." D. 57 ¶ 13; D. 67-1 ¶ 13; D. 59-6 at 1. Because Children's Hospital owns the Laptop, the Laptop constitutes a part of the "Computer and Network Resources" of the Acceptable Use Policy. Under that policy, any "[i]nformation stored on or transmitted over CHB's Computer and Network Resources (including email) is the sole and exclusive property of [Children's Hospital] and remains so even when stored on non-CHB equipment and media (such as your personal laptop and/or mobile device)." D. 57 ¶ 13; D. 67-1 ¶ 13; D. 59-6 at 1. Thus, any information stored on the Laptop was, under the terms of the Acceptable Use Policy, the "sole and exclusive property" of Children's Hospital. The data contained in the Forensic Image, by the same logic, is also the property of Children's Hospital, because all of the data contained in the Forensic Image is a copy of the data once stored on the Laptop and remained so when copied to the Forensic Image.
Children's Hospital contends that Cakir converted both the Laptop and the Forensic Image. D. 56 at 11. It argues that Cakir converted the Laptop (even though he later returned the Laptop itself to Children's Hospital) because Cakir made "material changes" to the Laptop before returning it. D. 56 at 11-12.
Children's Hospital next contends that Cakir converted the Forensic Image by refusing to turn the Forensic Image over to Children's Hospital upon request. D. 56 at 12. Cakir contends that it was not possible for him to convert the Forensic Image because, he argues, under Massachusetts law, there can be no conversion of intangible property.
Children's Hospital responds that at least one Massachusetts court has allowed a claim of conversion to proceed based on data stored electronically.
Cakir next contends that Children's Hospital cannot succeed in proving its conversion claim because there is a genuine dispute of material fact as to whether Children's Hospital retains a copy of the deleted files. D. 53-1 at 9. Children's Hospital contends that even if it has a copy, it can still succeed in its conversion claim. In support of this proposition, it cites
Finally, Cakir contends that under the Data Management Policy, he was permitted to make a copy of data owned by Children's Hospital, and, therefore, that his creation and retention of the Forensic Image cannot give rise to the wrongful exercise of control over the Laptop and data that is required for Children's Hospital's conversion claim. D. 67 at 13-14. In support of this contention, he cites a portion of the Data Management Policy that provides that departing researchers may make copies of data under certain conditions, including securing permission from institution and ensuring that the institution retains its copy. D. 59-7 at 6. There is no evidence in the record put forth by Cakir to show, as a matter of undisputed fact or otherwise, that these conditions were met. Thus, the Court cannot conclude that there is a disputed issue of fact as to this issue, where Cakir has failed to rebut Children's Hospital's showing with respect to the Cakir's wrongful exercise of control over the Forensic Image and Cakir has failed to show as an undisputed issue of material fact that the Data Management Policy authorized Cakir to create and retain the Forensic Image without allowing Children's Hospital access to it.
To prevail on a replevin claim, a plaintiff must show that (1) the goods in question were unlawfully taken from their owner's possession or have been unlawfully detained; (2) the owner has a right to possession; and (3) the value of the goods exceeds twenty dollars.
Children's Hospital, moreover, has not waived this claim. Cakir contends that Children's Hospital waived this replevin claim by stating at one point that it did not seek to prohibit Cakir from retaining a copy of the Forensic Image, provided he released a copy of the Forensic Image to Children's Hospital. D. 53-1 at 10. Children's Hospital's choice not to prohibit Cakir from retaining a copy, however, does not indicate that it waived its replevin claim for the taking and retention of the original Laptop or its data or the detention of the Forensic Image.
For the aforementioned reasons, the Court DENIES Cakir's motion for summary judgment, D. 53, and ALLOWS Children's Hospital's motion for summary judgment. D. 55.