"The price of justice is eternal publicity." Arnold Bennett
| Ken Hamidi's Opposition to Summary Judgement |
Hamidi's opposition to Intel's summary judgement motion
DAVID J. HURD, SBN. 91791 LAW OFFICES OF DAVID J. HURD 3172 Airport Road Placerville, CA 95667 Tel: 530-626-9518
EDNDORSED April - 5 - 1999 By P. Allen , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
INTEL CORPORATION, Case No. 98AS05067
Plaintiff,
vs. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
MOTION FOR SUMMARY KOUROSH KENNETH HAMIDI and JUDGEMENT AS TO THE FIRST FACE - Intel, a purported California CAUSE OF ACTION. nonprofit organization, Defendant,
Date: April 19, 1999 Time: 9:00 a.m. Place: Department 53 Trial Date: Not Set Defendant, KOUROSH KENNETH HAMIDI, (hereinafter "HAMIDI") submits the following Memorandum of Points and Authorities in opposition to Plaintiff's (hereinafter "INTEL") Request for Summary Judgment as to the first cause of action, trespass to chattels. INTEL's motion is, in effect, a Motion for Summary Adjudication on the first cause of action. INTEL has not submitted a Motion for Summary Adjudication as to the second cause of action. As such, HAMIDI presents no legal argument.
INTRODUCTION
HAMIDI is a former INTEL employee who was injured in an automobile accident while returning from a business trip on behalf of INTEL in September, 1990. At the time of the accident, HAMIDI was a Senior Customer Quality and Reliability Engineer ('*CQE") in INTEL's Automotive Group.
HAMIDI remained at work 18 months after his accident, until his worsening physical condition forced him to leave his employment at the advice of INTEL's doctors. HAMIDI left his employment on a medical leave of absence on January 27, 1992. (Hamidi Decl. at ¶ 3). Although HAMIDI was terminated involuntarily, he was not terminated for cause. (Hamidi Decl. at ¶ 4). Kirby Dyess, the Director of Human Resources for INTEL and the executive personally responsible for the termination of HAMIDI admitted under oath that INTEL had violated its own internal policies in terminating HAMIDI prior to the resolution of his workers compensation case. (Hamidi Decl. at ¶ 4).
In 1996 , HAMIDI, in conjunction with current employees, and past employees of INTEL, participated in the creation of AXE-INTEL, later renamed FACE-INTEL. FACE-INTEL was formed to provide a medium for INTEL employees to air their grievances and concerns over employment conditions at INTEL. (Hamidi Decl. at ¶ 5). FACE-INTEL provides an extremely important forum for employees within an international corporation to communicate via a web page on the Internet and via electronic mail, on common labor issues, that, due to geographical and other limitations, would not otherwise be possible. The means employed by FACE-INTEL were chosen as those needed to reach INTEL employees. (Hamidi Decl. at ¶ 5).
As part of HAMIDI's efforts to communicate to INTEL employees about crucial employment issues, HAMIDI sent, over a period of two years, seven electronic mails to the electronic mail boxes of some INTEL employees.
(Hamidi Decl. at ¶ 6). The electronic mail messages did not originate on INTEL property, nor were they sent to INTEL property. The electronic mails were sent over the Internet to a server. (Hamidi Decl. at ¶ 6). In order to retrieve the electronic mails, the recipient would be required to connect his or her computer to the Internet via a modem, and then affirmatively download the mail messages from his or her own server. Once downloaded, the messages could not be read until the recipient affirmatively opened the messages, much like opening a letter received in your mailbox. Also, like mail in your mailbox, electronic mails can be deleted without even being read.
LEGAL STANDARD
In determining a Motion for Summary Judgment the evidence must be viewed by the Court in the light most favorable to the non-moving party, and any factual conflicts must be resolved in favor of the non-moving party. Chesny v. Grisham (1976) 64 Cal.App.3d 120, 134 Cal.Rptr. 238. The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. Lipson v. Superior Court (1982) 31 Cal.3d 362, 374; see also FSR Brokerage Inc., v. Superior Court (1995) 35 Cal.App.4th 69 (construing 1993 amendment to summary judgment statute, C.C.P; section 437c). The facts alleged in affidavits by the non-moving party must be accepted as true. Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1178, 214 Cal. Rptr. 746.
Further, the court must consider not only the direct evidence presented, but also the reasonable inferences to be drawn therefrom.
California Code of Civil Procedure section 437c(c); Mann v. Cracciolo (1985) 35 Cal.3d 18, 210 Cal.Rptr. 62. Any doubt as to the propriety of the motion is resolved in favor of the party opposing the motion. Stationer's Corp. v. Dunn & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.
At the summary judgment stage, the court's sole function is issue-finding, not issue determination. California Code of Civil Procedure section 437c. The summary judgment procedure is "drastic," and is to be used with caution so that it does not become a substitute for a full trial.
Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372, 178 Cal.Rptr 783. "It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so Long has been the hallmark of 'even handed justice.'" Poller v Columbia Broadcasting (1962) 368 U.S. 464, 473, 82 S.Ct. 486 491. (Emphasis added)
ARGUMENT
I
If this court is to grant summary judgment as to the cause of action for trespass to chattels and deny HAMIDI the opportunity to defend himself, this court must be convinced of not one but two incontrovertible facts:
First, that HAMIDI is guilty of trespass to chattels as a matter of law, wherein no element of the tort is subject to a factual dispute, such that the court may properly deny HAMIDI a trial on the merits. Second, that upon a finding of trespass to chattels by HAMIDI as a matter of law, that there is no defense available in law upon any theory to justify the tortious interference or provide a valid defense thereto.
This court granted a preliminary injunction against HAMIDI based on the affidavits provided by INTEL. Discovery conducted by HAMIDI subsequent to the granting of that preliminary injunction shows a changed landscape and now offers this court a clearer picture than that painted by INTEL. Not only is there a valid factual dispute as to whether a trespass was committed, there are serious and far reaching free speech issues inextricably woven into the fabric of this case which would necessitate a balancing of interest test even upon a finding of a trespass to chattels, thereby rendering summary judgment inappropriate.
I
THE REQUEST BY INTEL FOR INJUNCTIVE RELIEF INVOLVES STATE ACTION Although INTEL has not addressed the issue, the invocation of this court for preliminary and a permanent injunctions involve state action.
See Shelley v. Kraemer 334 U.S. 1 (1948). INTEL requests this court to exercise its coercive power to permanently enjoin HAMIDI from communicating directly to INTEL employees via the Internet. As stated in New York Times Co. v. Sullivan 376 U..S. 254 (1964), where state action was involved in enforcement of state libel laws: "[t]he test is not the form in which state power has been applied, but whatever the form, whether such power has in fact been exercised." Id. at 265.
Cases subsequent to New York Times Co. v. Sullivan have held that state action is invoked in the enforcement of laws that restrict first amendment freedoms. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), which involved the enforcement of state promissory estoppel laws, the court stated:
The initial question we face is whether a private cause of action for promissory estoppel involves "state action" within the meaning of the [Constitution] such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times Co. v. Sullivan and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the [Constitution].... These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute 'state action' for the purposes of the [Constitution]. Id. at 668 (citations omitted).
See also Lloyd Corp. v. Whiffen, 750 P.2d 1157, 1159-60, (Or. Ct. App.1988) (observing that if the state applies constitutional constraints to private libel suits, then state action must be present when a court enjoins a trespass), affirmed on other grounds, 773 R2d 1294 (Or. 1989).
II
THERE EXISTS A FACTUAL DISPUTE AS TO WHETHER ELECTRONIC MAIL FROM HAMIDI TO INTERNET ADDRESSES OF EMPLOYEES OF INTEL CONSTITUTED A TRESPASS TO CHATTELS INTEL does not like HAMIDI. One look at the FACE-INTEL web page explains why. INTEL does not like what HAMIDI has to say about INTEL. This simple fact explains why INTEL has chosen to sue HAMIDI for trespass to chattels and nuisance in response to only seven messages over a two year period sent via the democratizing electronic medium of the Internet, and parenthetically, why INTEL chose to devote so much of the legal argument in their Motion for a Preliminary Injunction personally attacking HAMIDI. (Shostak Decl., Motion for Preliminary Injunction.)
1. HAMIDI DID NOT INVADE INTEL's PROPRIETY COMPUTER SYSTEM INTEL's motion for summary adjudication for trespass to chattels is inextricably dependent upon the preliminary finding as a matter of law, that there is no factual dispute as to whether or not Ken Hamidi's e-mails improperly interfered with the use of INTEL's computers to such an extent that the e-mails caused actual damage. In fact, not only is there an actual dispute as to that fundamental issue, INTEL provides the evidence of such a factual dispute. INTEL has stated repeatedly that HAMIDI improperly trespassed onto INTEL's proprietary computer system. Yet in documents presented in response to HAMIDI's first request for production of documents (HAMIDI RFP), INTEL provides e-mail correspondence sent from one INTEL manager to another, reacting to HAMIDI's e-mails to Internet addresses of INTEL employees. In an exchange of e-mails from Ken True of INTEL, Carlene M. Ellis of INTEL and Cary Daugherty of INTEL, they expressed opinions on whether HAMIDI effected a security breach onto INTEL's proprietary computer system. The conclusion was that HAMIDI did not commit a breach of the INTEL computer system. (Attached as Exhibit A to HAMIDI Declaration).
INTEL alleges that HAMIDI committed a trespass to chattels, and cites Thrifty-Tel v Beznek, 46 Cal. App. 4th 1559 (1996) as persuasive authority that, "unconsented access to a computer system constitutes a trespass to chattels." (INTEL Points & Authorities p.3, lines 23-24, attached as Exhibit K to HAMIDI Declaration). A more appropriate finding from Thrifty-Tel is that interference with a telephone switching system, accomplished with the intent to defraud money from the owner of that system, can constitute a trespass to chattels.
In Thrifty-Tel the defendant used a special electronic device to dial thousands of numbers on plaintiff's telephone system in an effort to obtain a code sequence to use to make free telephone calls, thereby defrauding the telephone company. The court stated that the barrage of dialing into plaintiff's admittedly small telephone switching system overloaded the system, and thereby caused an interference with the use of that system. The plaintiff's telephone system was overloaded in responding to defendant's calls. Hence, the trespass to chattels. Thrifty-Tel dealt with a scheme to steal money from the plaintiff, and in the attempt, defendants overloaded the victim's telephone system. There is little correlation to this case, yet INTEL misstates the case to hold somehow that unconsented access to a computer system is prima facie evidence of trespass to chattels.
2. HAMIDI's E-MAILS DID NOT BURDEN OR INTERFERE WITH INTEL'S COMPUTER OPERATIONS AS REQUIRED FOR TRESPASS TO CHATTELS.
Leaping from Thrifty-Tel to an Ohio case, CompuServe Inc. v Cyber Promotions, Inc. 962 F. Supp. 1015 (S.D. Ohio 1997), INTEL alleges that CompuServe Inc. v Cyber Promotions, Inc., stands for the proposition that unauthorized e-mail necessarily constitutes a trespass to chattels. HAMIDI sent e-mails to INTEL employees, ergo, HAMIDI committed trespass to chattels. Not only does that premise misstate CompuServe Inc. v Cyber Promotions, Inc., it ignores the many dissimilarities to the case at bar.
CompuServe Inc. v Cyber Promotions, Inc., involved the mass e-mailing of commercial messages by Cyber Promotions to CompuServe for the purposes of marketing to CompuServe's customer subscribers, unlike this case which deals with non-commercial public issues. Like Thrifty-Tel, the e-mailing was so voluminous as to burden CompuServe's computer facilities. Unlike Thrifty-Tel and CompuServe Inc. v Cyber Promotions, Inc., this case involves no burdening of INTEL's computer system. To get around this problem of lack of actual burden on the system, INTEL alleges that computer personnel spent significant amounts of time attempting to block or remove HAMIDI's e-mails, yet documents provided by INTEL in discovery belie such claims. In one document Cary Daugherty opines that blocking could be effected in as short as two hours. (Attached as Exhibit A to HAMIDI Declaration). More remarkably, INTEL provided numerous advisories to employees indicating that one effective method of avoiding future e-mailings from HAMIDI was simply to ask HAMIDI to remove them from his list and HAMIDI would do so. (Attached as Exhibits B, C, E, F, G, and I to HAMIDI Declaration).
This case is further distinguished from CompuServe Inc. v Cyber Promotions, Inc., in that CompuServe's customer users were billed for their time spent on-line accessing their e-mail accounts. CompuServe charged their customers for customer time spent on-line dealing with and removing unwanted commercial e-mail advertisements.
CompuServe Inc. v Cyber Promotions, Inc., involved a request for a preliminary injunction. Even though the court granted the preliminary injunction, Cyber Promotions was still afforded the opportunity to defend on the merits after the granting of the motion. A Motion for Summary Judgment is much more drastic than a preliminary injunction and, as such, whatever persuasive authority the ruling in CompuServe may have provided to this court in support of a preliminary injunction does not apply to a motion for summary judgment, which results in a final foreclosure of the defendant's opportunity to defend on the merits.
The cases cited by INTEL as persuasive authority are not pertinent to the issues before this court.. HAMIDI did not overload INTEL's computer or telephone systems. (Attached as Exhibit A to HAMIDI Declaration). The only evidence of disruption was caused by INTEL's efforts to keep the content of HAMIDI's messages out of reach of INTEL employees. INTEL admits blocking the FACE-INTEL web page, clearly indicating that INTEL did not wish to have employees actively seek out HAMIDI's messages concerning INTEL's personnel policies. (Attached as Exhibits D, H, and I to HAMIDI Declaration).
HAMIDI did not cause any actual damage to INTEL's chattels as required by CompuServe The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land is not given legal protection by an action for nominal damages for harmless intermeddling with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (e).
Restatement (Second )of Torts § 218. HAMIDI did not send millions of e-mails on a daily basis. HAMIDI did not send commercial messages as a service provider to a competing service provider. (Sedayao Decl. Exh. 1).
INTEL cites several other cases; America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 17437 (E.D. Va. October 29, 1998; Earthlink Network, Inc. v. Cyber Promotions, Inc. (Super. Ct. L.A. County, 1997, No. BC167502); and Hotmail Corp. v. Van Money Pie, Inc., No. C98-20064JW, 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. April 16, 1998), all allegedly supportive of the proposition that one can commit a trespass to chattels via e-mail. However, the Archilles Heel in INTEL's argument is that none of these cases stand for the proposition that sending e-mails to electronic addresses on the Internet, in and of itself, constitutes a trespass to chattels. In every case alleging trespass to chattels there still must be a finding of unreasonable interference with the use of personal property amounting to actual damage. In other words, there still must be an independent finding of a trespass to chattels. If not, we arrive at the absurd conclusion that the mere sending of unsolicited e-mails is a tort. In fact, the court in CompuServe makes it quite clear that it is not appropriate to resort to legal action until the aggrieved party has exhausted all technological means of self help.
"...this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should he exhausted before legal action is proper." Id. at page 1023.
The discovery provided by INTEL clearly shows that INTEL did not exhaust their self help obligations before resorting to the power of the court. (Attached as Exhibit A to HAMIDI Declaration)
III
ASSUMING ARGUENDO THAT A TRESPASS TO CHATTELS WAS COMMITTED, THE INTERESTS PUT FORTH BY INTEL ARE OUTWEIGHED BY FIRST AMENDMENT RIGHTS HAMIDI has demonstrated that even a showing of trespass to chattels does not mandate a decision for summary adjudication. Such a showing is a necessary, not a sufficient, condition precedent. HAMIDI, by his e-mails, has engaged in the highest echelon of protected free speech. Unlike the authorities cited by INTEL involving self-serving commercial speech, HAMIDI's messages question INTEL's treatment of employees through INTEL's personnel policies and highlight the ever present potential for adversity of interests between employer and employee.
In support of its assertion that HAMIDI does not have a first amendment right to express his views to INTEL employees via e-mail over the Internet, INTEL cites several single forum cases in which the persons charging first amendment rights were physically on the property of the complainant. One case, Alred v. Shawley 232 Cal.App. 3d 1489 (1991) dealt with a preliminary injunction, not a motion for summary judgment.
INTEL asserts that HAMIDI does not have a first amendment right because "INTEL's proprietary e-mail system is for company business and is not open to the general public." (INTEL Points & Authorities, page 6, lines 11, 12, attached as Exhibit J to HAMIDI Declaration). Accepting the truth of that declaration leads the court to ponder a question of semantics, and ultimately one question of disputed fact. For even as INTEL makes that statement, INTEL submits written documents demonstrating that the intended recipients of HAMIDI's e-mails are authorized to engage in personal use of INTEL computer facilities. (INTEL "E-mail, Internet, and Computer-use Guideline HR Guidelines: Work Environment 20.014a," attached as Exhibit 1 to the Ken True Declaration.) Furthermore, INTEL made the following admissions:
1) Employees are permitted reasonable personal use of networked computer equipment. (True Decl. Exh. 1).
2) Personal use by employees includes Internet access for purposes of sending or receiving appropriate [non-pornographic, etc.] electronic mail. (True Decl. Exh. 1).
3) INTEL connects to the Internet to send or receive some electronic mail. (HAMIDI's RFA Set No. 2. RFA No. 4, attached as Exhibit K to HAMIDI Declaration.)
4) Some INTEL employees use the Internet to send and receive (personal) electronic mail. (HAMIDI's RFA Set No. 2. RFA No. 3, attached as Exhibit K to HAMIDI Declaration.)
In spite of these admissions, INTEL asserts with a straight face that the Internet is only for "Intel's business use." (Ken True Decl. page 1 line 28.) Yet the written guidelines clearly state under the header, INTERNET POSTINGS.
Intel employees may choose...to participate in public forums on the network, including newsgroups, chat environments, and so forth. Employees cannot represent Intel's corporate opinion unless they have been specifically asked to do so.
Whenever posting from an Intel account, employees should always include a disclaimer that they are not speaking for Intel. Even when posting from home or another non-Intel site, if the employee is likely to be identified with Intel (e.g., an employee who publishes white papers for Intel) and if the posting is on a matter related to Intel business, the employee should include a disclaimer that he/she is not speaking for Intel. (INTEL "E-mail, Internet, and Computer-use Guideline HR Guidelines: Work Environment 20.014a," attached as Exhibit 1 to the Ken True Declaration.) This single excerpt from the Intel Guidelines clearly indicates that not only are employees encouraged to participate in public forums, employee postings may be on matters not related to Intel business. Defining "business use," to include "personal use" as INTEL seems to be doing, is none other than Orwellian double-speak..
CONCLUSION
Based on the foregoing Points and Authorities, HAMIDI respectfully requests that INTEL's Motion for Summary Judgment be denied.
Dated: April 5, 1999
(Signed by David Hurd)
David J. Hurd
Attorney for Defendant, Kourosh Kenneth Hamidi
Hamidi's statement of undisputed material facts
DAVID J. HURD, SBN. 91791 LAW OFFICES OF DAVID J. HURD 3172 Airport Road Placerville, CA 95667 Tel: 530-626-9518
EDNDORSED April - 5 - 1999 By P. Allen , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
INTEL CORPORATION, Case No. 98AS05067
Plaintiff,
vs. DEFENDANT'S RESPONSE TO SEPARATE
STATEMENT OF UNDISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAIINTIFF KOUROSH KENNETH HAMIDI and INTEL'S MOTION FOR SUMMARY JUDGMENT FACE - Intel, a purported California nonprofit organization, Defendant,
Date: April 19, 1999 Time: 9:00 a.m. Place: Department 53 Trial Date: Not Set PLAINTIFF'S FACTS RELATIVE TO ALL CAUSES OF ACTION
1. HAMIDI is an officer, webmaster and the designated spokesperson for FACE-INTEL.
2. HAMIDI and FACE-INTEL sent electronic mail ("e-mail") to INTEL's proprietary computers on multiple occasions, including:
- December 1996
- February 17, 1997
- March 3, 1997
- April 2, 1997
- March 5, 1998
- September 1998
3. HAMIDI directed the e-mails to some 8,000 to 35,000 addresses on the INTEL proprietary computer systems.
4. Analysis of HAMIDI's September 1998 e-mail indicates that it was directed to approximately 29,000 current employees on the INTEL proprietary computer systems.
5. INTEL specifically requested HAMIDI to stop sending these e-mails and HAMIDI refused to comply.
6. HAMIDI, aware that INTEL attempted to block his e-mails, made efforts to avoid blocking by sending e-mails in the early morning and by using different computers
7. HAMIDI's e-mails are uninvited, adversely affecting employee productivity. Intel employees often contact computer support with questions and request blocking.
8. INTEL's computer support personnel spend significant amounts of time attempting to block and remove HAMIDI's e-mail from the INTEL computer systems.
9. INTEL has specific policies that limit use of the e-mail system to company business. HAMIDI as provided in INTEL's own exhibit. (Springmann Decl. Exh. 2.)
DEFENDANT'S POSITION:
1. Undisputed.
2. Disputed. Hamidi and FACE-INTEl sent electronic mail ("e-mail") to internet addresses of INTEL employees. HAMIDI Decl. at ¶ 6. The electronic mail was sent to a server and was never directly sent to either INTEL computers or INTEL proprietary computers. HAMIDI Decl. at ¶ 6, 8. INTEL's proprietary intranet computers do not access the internet for network communications. HAMIDI Decl. at ¶ 9.
3. Disputed. HAMIDI directed the e-mails to addresses that are only accessible via a server on the internet. HAMIDI had no information that would have permitted him access to INTEL's proprietary computer systems. HAMIDI Decl. at ¶ 6, 8.
4. Disputed. HAMIDI directed the e-mails to addresses that are only accessible via a server on the internet. HAMIDI had no information that would have permitted him access to INTEL's proprietary computer systems. HAMIDI Decl. at ¶ 6, 8.
5. Undisputed.
6. Disputed. This is purespeculation by Jeff Sedayao and Kenneth True. They have no personal knowledge of the assertions in their declarations pertaining to these matters. Sedayao Decl. at ¶ 4. True Decl. at ¶ 3. Objection, the statement of undisputed fact misstates the testimony of HAMIDI as profided in INTEL's own exhibit. (Springmann Decl. Exh.2.)
7 Disputed. HAMIDI's e-mails may have been uninvited by INTEL management, but they were not directed to INTEL management. HAMIDI's e-mails were sent to internet addresses of INTEL employees. Of the approximately 30,000 employees to whom HAMIDI sent e-mails, only 450 requested not to receive further e-mails from HAMIDI. (HAMIDI Decl. at ¶ 8.)
8. Disputed and fully irrelevant. INTEL spends as much or as little time attempting to block the content of HAMIDI's messages sent to INTEL employees, as INTEL management chooses to do. Such unproductive and repressive behavior on behalf of INTEL is not indicative of any impropriety on the part of HAMIDI. Furthermore, Carlene Ellis in an e-mail discussing blocking, states that only two hours were anticipated to block HAMIDI's e-mail messages. (HAMIDI's Req Prod of Docs. I-008, attached as Exhibit A to HAMIDI Declaration.)
9. Disputed and fully irrelevant. This assertion is completely false. INTEL permits personal use by employees of the internet for the receipt as well as the sending of electronic mail. (True Decl. Exh. 1). INTEL also permits personal use of the internet by employees for a variety of other uses. (True Decl. Exh. 1.) Furthermore, even if INTEL prohibited personal use of the internet by employees, such a restriction would permit INTEL to direct the behavior of it's employees while using it's computers, it would not permit INTEL to limit the free speech rights of the people of the United States.
DEFENDANT'S ADDITIONAL DISPUTED FACTS RELEVANT TO THIS CASE DEFENDANT'S FACTS:
DF1. HAMIDI sent electronic mails to the internet addresses of INTEL employees.
DF2. HAMIDI sent electronic mails to addresses of INTEL employees via the internet.
DF3. HAMIDI's electronic mails consisted of non-commercial, protected free speech messages.
DF4. HAMIDI encouraged recipients to contact HAMIDI to have themselves removed from the mailing list should they so desire.
DF5. HAMIDI at no time accessed or attempted to access INTEL's proprietary computer system.
DF6. INTEL could have blocked HAMIDI's messages in as short a time as two hours.
DF7. INTEL must connect to the internet in order to receive electronic mail sent over the internet.
DF8. In order to retrieve HAMIDI's messages INTEL would have to voluntarily access the internet.
DF9. INTEL permits personal use by employees of INTEL computer systems.
DF10. Some INTEL employees use the internet for sending and receiving electronic mail.
DF11. Personal use of computer systems permitted by INTEL includes sending and receiving electronic mail.
SUPPORTING EVIDENCE:
DF1. HAMIDI Decl. at ¶ 6.
DF2. HAMIDI Decl. at ¶ 6.
DF3. Sedayao Decl. Exh. 1.
DF4. HAMIDI Decl. at ¶ 7. Sedayao Decl. Exh. 1.
DF5. Carlene Ellis stated that there had been no security breach in INTEL's proprietary computer systems. HAMIDI's Req Prod of Docs. I-009, attached as Exhibit A to HAMIDI Declaration.
DF6. HAMIDI's Req Prod of Docs. I-008, attached as Exhibit A to HAMIDI Declaration.
DF7. HAMIDI's RFA Set No. 2. RFA No. 4, attached as Exhibit K to HAMIDI Declaration.
DF8. HAMIDI's RFA Set No. 2. RFA No. 4, attached as Exhibit K to HAMIDI Declaration.
DF9. True Decl. Exh. 1.
DF10. HAMIDI's RFA Set No. 2. RFA No. 3, attached as Exhibit K to HAMIDI Declaration.
DF11. HAMIDI's RFA Set No. 2. RFA No. 5, attached as Exhibit K to HAMIDI Declaration.
Declaration of Ken Hamidi in opposition to Intel's summary judgement motion
DAVID J. HURD, SBN. 91791 LAW OFFICES OF DAVID J. HURD 3172 Airport Road Placerville, CA 95667 Tel: 530-626-9518
EDNDORSED April - 5 - 1999 By P. Allen , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
INTEL CORPORATION, Case No. 98AS05067
Plaintiff,
vs. DECLARATION OF
KOUROSH KENNETH HAMIDI
IN OPPOSITION TO PLAINTIFF'S MOTION KOUROSH KENNETH HAMIDI and FOR SUMMARY JUDGMENT FACE - Intel, a purported California nonprofit organization, Defendant,
Date: April 19, 1999 Time: 9:00 a.m. Place: Department 53 Trial Date: Not Set I, Kourosh Kenneth Hamidi, declare as follows:
1. I am over 18 years old and I am the plaintiff In this case. The facts set forth in this declaration are personally known to me and I have first hand knowledge of the same. If called as a witness I could competently testify thereto.
2. I am a former INTEL employee who was injured in an automobile accident while returning from a business trip on behalf of INTEL in September, 1990. At the time of the accident, I was a Senior Customer Quality and Reliability Engineer ('*CQE") in INTEL's Automotive Group.
3. I remained at work 18 months after his accident, until my worsening physical condition forced me to leave my employment at the advice of INTEL's doctors. I left my employment on a medical leave of absence on January 27, 1992.
4. Although I was terminated involuntarily, I was not terminated for cause. I attended the depositon of Kirby Dyess during my civil case against INTEL. At the deposition, Kirby Dyess, the Director of Human Resources for INTEL and the executive personally responsible for my termination admitted under oath that INTEL had violated its own internal policies in terminating me prior to the resolution of my workers compensation case.
5. In 1996, I, in conjunction with current employees, and past employees of INTEL, participated in the creation of AXE-INTEL, later renamed FACE-INTEL. FACE-INTEL was formed to provide a medium for INTEL employees to air their grievances and concerns over employment conditions at INTEL. FACE-INTEL provides an extremely important forum for employees within an international corporation to communicate via a web page on the Internet and via electronic mail, on common labor issues, that, due to geographical and other limitations, would not otherwise be possible. The means employed by FACE-INTEL were chosen as those needed to reach INTEL employees.
6. As part of my efforts to communicate to INTEL employees about crucial employment issues, I sent, over a period of two years, six electonic mails to the electronic mail boxes of some INTEL employees. The electronic mail messages did not originate on INTEL property, nor were they sent to INTEL property. The electronic mails were sent over the internet to an internet server.
7. With each of the electronic mailings I informed each recipient that I would remove them from the mailing list upon request. I only received 450 requests for removal in total from my e-mailings to INTEL employees.
8. I did not direct e-mails to INTEL management. Nor did I have information that would have permitted me access to INTEL's proprietary computer systems.
9. INTEL has a company-wide intranet system that does not access the internet. The intranet system is used for, among other things, communicating human resource policies, and any other information that needs to go to all INTEL employees.
10. As Defendant in this case, I maintained the litigation file. I propounded various discovery to plaintiff INTEL, including requests for production of documents. In response to my various discovery reqests, plaintiff INTEL had produced certain documents. Several of the documents responsive to my Request for Production of Documents are attached hereto as Exhibits A through I.
As part of my discovery I sent out three Requests for Admissions. I have attached as Exhibit K, INTEL's response to my second set of Requests for Admissions.
In addition, I have attached as Exhibit J, INTEL's Memorandum of Points and Authorities for Intel's Motion for Summary Judgment.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 5th day of April, 1999.
Date: April 5, 1999
(Signed by Ken Hamidi)
Kourosh Kenneth Hamidi
