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TBG Insurance Services Corporation v. Superior Court of Los Angeles County2/22/2002
CERTIFIED FOR PUBLICATION
An employer provided two computers for an employee's use, one for the office, the other to permit the employee to work at home. The employee, who had signed his employer's "electronic and telephone equipment policy statement" and agreed in writing that his computers could be monitored by his employer, was terminated for misuse of his office computer. After the employee sued the employer for wrongful termination, the employer demanded production of the home computer. The employee refused to produce the computer and the trial court refused to compel production. On the employer's petition, we conclude that, given the employee's consent to his employer's monitoring of both computers, the employee had no reasonable expectation of privacy when he used the home computer for personal matters. We issue the writ as prayed.
FACTS
For about 12 years, Robert Zieminski worked as a senior executive for TBG Insurance Services Corporation. In the course of his employment, Zieminski used two computers owned by TBG, one at the office, the other at his residence. Zieminski signed TBG's "electronic and telephone equipment policy statement" in which he agreed, among other things, that he would use the computers "for business purposes only and not for personal benefit or non-Company purposes, unless such use expressly approved. Under no circumstances [could the] equipment or systems be used for improper, derogatory, defamatory, obscene or other inappropriate purposes." Zieminski consented to have his computer "use monitored by authorized company personnel" on an "'as needed'" basis, and agreed that communications transmitted by computer were not private. He acknowledged his understanding that his improper use of the computers could result in disciplinary action, including discharge.
In December 1998, Zieminski and TBG entered a "Shareholder Buy-Sell Agreement," pursuant to which TBG sold 4,000 shares of its stock to Zieminski at $.01 per share; one-third of the stock was to vest on December 1, 1999, one-third on December 1, 2000, and one-third on December 1, 2001, each vesting contingent upon Zieminski's continued employment; if Zieminski's employment terminated before all of the shares had vested, TBG had the right to repurchase the non-vested shares at $.01 per share. As part of the buy-sell transaction, Zieminski signed a confidentiality agreement and gave TBG a two-year covenant not to compete. One-third of Zieminski's shares vested on December 1, 1999. In March 2000, TBG's shareholders (including Zieminski) sold a portion of their TBG shares to Nationwide Insurance Companies; more specifically, Zieminski sold 1,230 of his 1,333 vested shares to Nationwide for a cash price of $1,278,247.
On November 28, 2000, three days before another 1,333 shares were to vest, Zieminski's employment was terminated. According to TBG, Zieminski was terminated when TBG discovered that he "had violated TBG's electronic policies by repeatedly accessing pornographic sites on the Internet while he was at work." According to Zieminski, the pornographic Web sites were not accessed intentionally but simply "popped up" on his computer. Zieminski sued TBG, alleging that his employment had been wrongfully terminated "as a pretext to prevent his substantial stock holdings in TBG from fully vesting and to allow . . . TBG to repurchase non-vested stock" at $.01 per share.
TBG answered and (through its lawyers) asked Zieminski (through his lawyer) to return the home computer and cautioned Zieminski not to delete any information stored on the computer's hard drive. In response, Zieminski acknowledged that the computer was purchased by TBG and said he would eith
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