By Pat Murphy
The Daily Record Newswire
The Utah Supreme Court has extended the state’s litigation privilege to conduct, meaning a law firm and its attorneys were immune from tort claims arising from the search of a home pursuant to discovery orders issued in a client’s civil case.
The court ruled in Moss v. Parr Brown that the privilege applies “so long as the acts or statements occur within the scope of attorneys’ representation of their clients.”
In 2002, the Salt Lake City firm of Parr Brown represented a company in a lawsuit against one of its former employees. In a state court lawsuit filed April 9, 2002, the firm’s client, Iomed, alleged that Jamal Yanaki had misappropriated trade secrets and breached his noncompete agreement.
On April 12, Parr Brown obtained a discovery order to prevent the destruction of evidence held by Yanaki at his home.
The order authorized the Salt Lake County Sheriff’s Office to seize Yanaki’s computers and electronic devices for the purpose of allowing an Iomed expert to make copies of all of Yanaki’s electronic files.
At approximately 8 a.m. on April 15, a Parr Brown attorney and sheriff’s deputy arrived at Yanaki’s home to execute the order. Yanaki was out of town, so they were met at the door by his fiancée, Susan Moss.
Moss refused entry and a standoff ensued.
This spurred the Parr Brown lawyer to obtained a supplemental order directing the deputy to use reasonable force to enter Yanaki’s home and search the premises for electronic files.
Moss stepped aside when served with this order. Yanaki’s computer records were seized in the course of the ensuing search of his home.
While Iomed v. Yanaki wound its way towards eventual settlement, Yanaki and Moss sued Parr Brown and certain of the firm’s attorneys for what they claimed was an illegal search of Yanaki’s home.
Their tort claims included abuse of process, invasion of privacy, intentional infliction of emotional distress, trespass and conversion.
Apart from claiming that the lawsuit was bogus, Parr Brown argued that the claims of Yanaki and Moss were barred by the state’s version of the litigation privilege.
Under Utah’s “judicial proceedings privilege,” statements made by an attorney in the course and scope of a judicial proceeding are protected. The privilege historically has been applied in the state to bar defamation claims.
But Yanaki’s lawsuit against Parr Brown presented for the first time the issue of whether the judicial proceedings privilege, in addition to protecting a lawyer’s statements, also protects his conduct.
According to Yanaki, the privilege did not insulate Parr Brown attorneys from liability for actions that culminated in the purportedly unlawful search of his home.
This month, the Utah Supreme Court decided that the privilege does apply to actions, just like those that Parr Brown attorneys took in the course of discovery in Iomed v. Yanaki.
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