Legal Ethics

Judicial Proceedings Privilege Protects Law Firm that Helped Carry Out Unusual Discovery Order

The Utah Supreme court has ruled the judicial proceedings privilege protects a Utah law firm and its lawyers in a tort suit over the seizure of electronic devices from a litigant’s home.

The suit targeted Utah law firm Parr Waddoups Brown Gee & Loveless for its role in executing civil discovery orders. The Legal Profession Blog notes the opinion (PDF) shielding the law firm, now known as Parr Brown Gee & Loveless. Among the causes of action were abuse of process, invasion of privacy, and intentional infliction of emotional distress.

Parr Brown had obtained an ex parte civil discovery order on behalf of Iomed Inc. in its suit against a former employee accused of misappropriating trade secrets. The order directed the Salt Lake County Sheriff’s office to seize the employee’s electronic storage devices at his home, supervise the copying of electronic files by Iomed’s expert, and submit the original electronic files under seal pending a privilege review by the employee’s lawyer.

A Parr Brown lawyer accompanied the sheriff’s deputy to the home. The former employee’s fiancée refused to allow entry, spurring the Parr Brown lawyer to obtain another ex parte order authorizing the sheriff to use reasonable force, if necessary, to carry out the order. At that point, the fiancée stepped aside and the electronic items were seized.

The Utah Supreme Court dismissed the suit by the employee and his fiancée. “Parr Brown argues that Utah’s judicial proceedings privilege should be extended to attorney conduct, rather than merely statements made in the course of judicial proceedings, if that conduct relates to the proceedings,” the court said. “We agree.”

Parr Brown is protected, the court said, because the firm is not accused of committing fraud or acting outside its scope of representation of Iomed.

The court said in a footnote that the civil discovery orders “appear on their face to have been unusual,” but there is no need to address the legality because of its privilege ruling.

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