United States District Court, D. Massachusetts
THE CHILDREN'S HOSPITAL, CORPORATION D/B/A BOSTON CHILDREN'S HOSPITAL, Plaintiff,
ISIN CAKIR, Defendant.
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
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. Id.
Cakir has now filed a motion for summary judgment. D. 53.
Children's Hospital filed a cross motion for summary
judgment on those same claims. D. 55. For the foregoing
reasons, Cakir's motion for summary judgment is DENIED
and Children's Hospital's motion for summary judgment
Standard of Review
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.” Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting
Sánchez v. Alvarado, 101 F.3d 223, 227 (1st
Cir. 1996)). The burden of demonstrating with evidence that
there exists no genuine issue of material fact belongs to the
moving party. Carmona v. Toledo, 215 F.3d 124, 132
(1st Cir. 2000); see Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the movant meets its burden, the
non-moving party may not rely exclusively upon the
allegations or denials in her pleadings. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Instead,
the nonmoving party “must, with respect to each issue
on which she would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve
that issue in her favor.” Borges ex rel. S.M.B.W.
v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010).
“As a general rule, that requires the production of
evidence that is ‘significant[ly]
probative.'” Id. (alteration in original)
(quoting Anderson, 477 U.S. at 249). In conducting
this inquiry, the Court “view[s] the record in the
light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
civil action is related to Cabi et al. v. Boston
Children's Hospital (“Cabi”),
an ongoing suit in which Cakir, along with two other
plaintiffs, asserts employment discrimination, wrongful
termination and retaliation claims against Children's
Hospital. Cabi et al. v. Boston Children's
Hosp., No. 15-cv-12306-DJC, 2016 WL 593495, at *1 (D.
Mass. Feb. 12, 2016). In this case, on September 3, 2015,
Children's Hospital brought claims of conversion and
replevin against Cakir concerning a laptop and data from that
laptop. D. 1. On October 29, 2015, Cakir brought a
counterclaim for abuse of process. D. 9. Children's
Hospital moved to dismiss the counterclaim and moved for
judgment on the pleadings on its counts of conversion and
replevin. D. 12. After briefing and hearing, this Court
denied Children's Hospital's motion for judgment on
the pleadings on its claims, but allowed Children's
Hospital's motion to dismiss Cakir's counterclaim for
abuse of process. D. 26.
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.
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.
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.
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.
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.