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After negotiations stalled pending University approval for the assignment, Corn Card threatened to take legal action, alleging that a refusal to assign would place the University in breach of the licensing agreement. The dispute was submitted to arbitration, and the parties involved executed a document in which they agreed to provide all relevant nonprivileged materials that had not already been requested by the University Associate Vice Chancellor at an earlier time. When Biby indicated to University officials that he was uncomfortable with the idea of them searching his computer files, the Associate Vice Chancellor sent him the University computer policy, which states that “the university will only search files if a legitimate reason exists, such as needed repair or maintenance of equipment, investigation of improper or illegal use of resources, and 'response to a public records request, administrative or judicial order or request for discovery in the course of litigation.'” After its first attempt to search Biby's computer files, during which Biby refused to consent to the search, the University conducted a second investigation, taking the position that it did not need a signed consent form to do so, by initiating a key word search of Biby's Lotus Notes e-mail files.

While the dispute between the University and Corn Card was eventually settled, Biby was terminated for allegedly misrepresenting himself in his negotiations with Corn Card and Gemplus. Biby then sued the University, asserting, among other things, that University officials had violated his privacy rights, guaranteed by the Fourth and Fourteenth Amendments. Affirming the district court's grant of summary judgment on this claim, the Eighth Circuit found that Biby did not have a constitutionally protected privacy interest in his work computer, that the University's reasons for searching his computer were legitimate, and that the scope of the search was reasonable. Citing the University of Nebraska's policy allowing searches of employees' computer files, including e-mail, when the University is responding to a discovery request in the course of litigation, the court determined that Biby did not have a reasonable expectation of privacy with regard to his work computer and that the search was being carried out for legitimate reasons. Further, the court found that the key word search conducted in Biby's e-mail files was “reasonably related to the objectives of the search and not excessively intrusive” in that a broad search was required to determine whether all discoverable documents had been gathered. Thus, the Eighth Circuit held that Biby had not “demonstrated that a clearly established right of his was violated by the search or that a reasonable official would have known that the inception or scope of the search would violate [his] Fourth Amendment rights.”

University's Warrantless Search of Employee's Computer Did Not Violate Constitutional Rights

The Eighth Circuit has held that the University of Nebraska's warrantless search of an employee's computer did not violate the employee's Fourth Amendment Right to privacy where the search was conducted to uncover e-mails relating to a lawsuit and pending arbitration against a third party. Biby v. Board of Regents, of the University of Nebraska at Lincoln, 2005 WL 2000925 (8th Cir. Aug. 22).

Gerald Biby, a technology transfer coordinator at the University of Nebraska's Industrial Agricultural Products Center (IPAC), worked with companies in the private sector to formulate research and marketing opportunities for new technologies. After developing one such new technology, a product called Soft Touch II, Biby and his colleagues secured a provisional patent application in the University's name and entered into a licensing agreement with a company called Corn Card International. The agreement gave Corn Card the exclusive right to develop, market, and sell printable plastic phone cards, which used the Soft Touch II technology, in the United States, Mexico, and Canada. Biby then worked with the owner of Corn Card to begin establishing a business relationship with Gemplus, a card manufacturer interested in marketing phone cards with the Soft Touch II technology in Europe. It was hoped that the University would ultimately assign Corn Card's licensing rights to Gemplus so that Soft Touch II could be marketed worldwide.

After negotiations stalled pending University approval for the assignment, Corn Card threatened to take legal action, alleging that a refusal to assign would place the University in breach of the licensing agreement. The dispute was submitted to arbitration, and the parties involved executed a document in which they agreed to provide all relevant nonprivileged materials that had not already been requested by the University Associate Vice Chancellor at an earlier time. When Biby indicated to University officials that he was uncomfortable with the idea of them searching his computer files, the Associate Vice Chancellor sent him the University computer policy, which states that “the university will only search files if a legitimate reason exists, such as needed repair or maintenance of equipment, investigation of improper or illegal use of resources, and 'response to a public records request, administrative or judicial order or request for discovery in the course of litigation.'” After its first attempt to search Biby's computer files, during which Biby refused to consent to the search, the University conducted a second investigation, taking the position that it did not need a signed consent form to do so, by initiating a key word search of Biby's Lotus Notes e-mail files.

While the dispute between the University and Corn Card was eventually settled, Biby was terminated for allegedly misrepresenting himself in his negotiations with Corn Card and Gemplus. Biby then sued the University, asserting, among other things, that University officials had violated his privacy rights, guaranteed by the Fourth and Fourteenth Amendments. Affirming the district court's grant of summary judgment on this claim, the Eighth Circuit found that Biby did not have a constitutionally protected privacy interest in his work computer, that the University's reasons for searching his computer were legitimate, and that the scope of the search was reasonable. Citing the University of Nebraska's policy allowing searches of employees' computer files, including e-mail, when the University is responding to a discovery request in the course of litigation, the court determined that Biby did not have a reasonable expectation of privacy with regard to his work computer and that the search was being carried out for legitimate reasons. Further, the court found that the key word search conducted in Biby's e-mail files was “reasonably related to the objectives of the search and not excessively intrusive” in that a broad search was required to determine whether all discoverable documents had been gathered. Thus, the Eighth Circuit held that Biby had not “demonstrated that a clearly established right of his was violated by the search or that a reasonable official would have known that the inception or scope of the search would violate [his] Fourth Amendment rights.”