Police Blotter: Ex-employee's Yahoo Mail subpoenaed
By Declan McCullagh
Staff Writer, CNET News.com
Published: April 7, 2006, 6:15 PM PDT
"Police blotter" is a weekly CNET News.com report on the intersection of
technology and the law.
What: A Vermont bioscience company sues former employee over his personal
academic Web site and wants the contents of his Yahoo Mail account.
When: A federal judge in Vermont ruled on March 30.
Outcome: U.S. District Judge J. Garvan Murtha does not dismiss subpoena.
What happened, according to court documents: Sometime around 1995, Robert
Boehringer began working as a senior software engineer for MicroBrightField,
a bioscience company in Williston, Vt. He signed a standard employee
confidentiality agreement when hired.
Boehringer's specialty was research into stereology, the science of
three-dimensional interpretations of two-dimensional images, and MBF paid
for his master's degree in computer science at Virginia Tech.
Using his academic account, he created a Web site on Virginia Tech's
computers that is now password-protected. A version saved on Archive.org in
2004 includes a wealth of information about stereology from a
math-intensive, academic perspective. His personal home page is not
(Here's an excerpt from Archive.org: "There are a number of ways to randomly
apply a fraction. Here are two ways. One way is to select a fraction f and
then select the first nf sections as set 1, the next nf sections as set 2,
and so forth...")
This is where the tale becomes murky. MBF claims it demanded that Boehringer
move his Web site from Virginia Tech to the corporate servers, and he
refused. Around the same time, the company says his performance at work
"began to decline significantly" and that he "did not promptly complete work
assigned to him."
In any case, in 2005, Boehringer quit and joined Visiopharm, a Denmark-based
company selling software that competes with MBF's own products.
MBF claims that Boehringer sent in his resignation on July 14 and made it
retroactive to July 1 but nevertheless accessed MBF's source code
repositories eight times in early July.
The relationship soured. MBF's lawyer started sending nasty-grams to its
former employee alleging trade secret infringement and copyright
infringement (a few MBF PowerPoint presentations and photographs from
corporate literature were apparently on the Virginia Tech site). MBF went so
far as to register the copyright for the Virginia Tech Web site, claiming it
owned all of Boehringer's writings because they were a "work for hire."
Eventually MBF sued Boehringer alleging copyright infringement, breach of
contract, trade secret theft, and violation of the Computer Fraud and Abuse
Act (for allegedly accessing the source code repository). It also sent a
subpoena to Yahoo for the contents of Boehringer's e-mail account.
Boehringer's lawyer filed a motion to quash the subpoena, saying it was a
family account and was also used for attorney-client communications.
Judge Murtha said, however, that the subpoena was filed in the Northern
District of California and therefore "the court is without jurisdiction to
consider the motions to quash."
For the record, Boehringer denies MBF's allegations. He also has the option
of filing a motion to quash the Yahoo subpoena in California.