good morning your honour's morning council may please the court john robinson for the appellant aaron peterson i'm going to attempt to reserve three minutes for rebuttal this case your honor is about the scope of the litigation privilege which is also known as the judicial proceedings privilege in utah and specifically it's about whether the privilege is so broad that it immunizes fabricated evidence and identity theft simply because that evidence was later presented as part of a judicial proceeding the answer to that question is no because identity theft and fabricated evidence have no place in litigation that's why the litigation privilege doesn't apply at the outset i'd like to distinguish between the causes of action this case because they are in two different worlds on the one hand we have the common law causes of action this is principally the intentional economic interference claim now there's no question that the litigation privilege could apply to that sort of claim the argument here is simply that it doesn't because utah has a bad faith and fraud exception now the other cause of action is where i'd like to start and that's the action cause of action for identity theft and it's in a totally different world for one thing it's statutory rather than common law but much more importantly the elements of that cause of action all took place completely outside the litigation now as you know from the  we have and it's they didn't they didn't say there was an exception they said they said those actions aren't a separate cause i think that the court he was trying the case can issue sanctions to take care of that bad conduct isn't that what ma says well yes and no your honor mos carves out an exception and the specific language of the mosque or is in paragraph thirty seven where an attorney has committed fraud or otherwise acted in bad faith the privilege will not shield an attorney from civil liability now to your point about rule that even in professional conduct the court uses those as justification for this very broad privilege the court says look we're going to extend the privilege from statements to conduct and we recognize that this is a big step and we don't think it's going to be that much of a problem because of these ruhleben discovery sanction so on and so forth well it's  that paragraph you're looking at you say it will not shield the attorney the privilege will not shield an attorney from civil liability and then the rest of the paragraph an attorney may be liable for the torts of well the exception for mohs doesn't apply directly to this court this arose this case arose you honest move beyond last yes only for purposes of this case your honor this is a diversity case and so i think we should we send this to utah supreme court and let them tell us what their law is it's possible that this court could certify the question i don't think that a certification is necessary here because moss tells us almost everything we need to know in paragraph twenty nine of the opinion the court lays out its roadmap for what it would do when presented with a new question like whether to extend the privilege to conduct and not just statements and in that paragraph the court says well first we look at  policy and then we look at what other jurisdictions have done on this question and so i think it's fairly easy to use moss to predict what the supreme court would say in this case in the supreme court based on the moss opinion itself there's no reason to protect party conduct more than chinese conduct and that's principally because there are more options to remedy at tourney's misconduct than there are parties ruhleben doesn't apply in the same way there's no professional code of conduct that applies to parties and so based on what the mosque or says it's fairly it's highly likely i would say that the court would extend the same extent exception for bad faith and fraud to court take care of these bad acts in that case no your honor and here's why the harm that mr peterson suffered was that he got fired from his job at leeway which is x pos competitor now getting fired had nothing to do with the underlying litigation if the harm had been simply some bad effect in the underlying litigation then i think absolutely your honor is correct the best remedy the point closest in time in the judge most familiar with the facts is going to be in that underlying action but here there is absolutely no discovery sanction rule eleven or anything else that can make mr peterson whole even dismissal of the case outright against him is insufficient like to turn back to the identity identity theft cause and as you know from the briefing the utah code creates a civil liability it's predicated on the criminal identity fraud statute so and to be guilty of identity fraud under utah law a person needs to intentionally unknowingly use the personal identifying information of another with fraudulent intent and so the allegations in this case are that x be someone at x you know sat down at their computer they used peterson's e mail address they used a signature and they treated content for two e mails that made it look like mr peterson was soliciting clients from x p o which if true would have been in violation of his  contractual employment green with x p o and at that point this was outside the litigation the crime was complete and the cause of action accrued the reason do we know who did this even get your hon in the record doesn't say who did this we believe well that's not in the record we can't believe either that's right we we think we know but we need to skiver to find out and so we didn't allege these are you know serious allegations we're not going to name people without having more information now this is the mistake the district court made and in this instance it said look the identity theft was then presented in court and that's where the damage the litigation privilege must apply but the cause of action accrued before there was ever presentation of that information and of course we know that the law doesn't allow parties or attorneys to launder bad acts through the judicial process and that's what the district court allowed here and this isn't even an issue that rises under moss this is simply the elements of the crime which constitute a civil cause of action when they accrued they crewed without any relationship to the litigation and so this court should reverse on that point let me just ask you a follow up on that so your position as a lease with regard to identity theft the application of the privilege share was just erroneous regardless of what utah says about the provides that's correct your honor that's that's the point the the the idea well let me use an example to explain this we all know that in the attorney client privilege which is arguably even stronger than the litigation privilege i can't take an existing document and hand it to my attorney and make it privileged that's the laundering that the district court allowed in this case it said there's been identity theft but because the identity theft only came to mr peterson's attention through the living through litigation then the litigation privilege applies but the cause of action accrued without that presentation and maybe damages would have been different certainly but the statute allows punitive damages and it allows mr peterson to get wood jury he could have sued for identity theft whether or not regardless of whether x p o ever presented this information and that's where the district court made its legal or ok but that doesn't i guess you're conceding that rationale does not apply to the intentional interference claim that's correct your honor the common law causes can fall under the privilege no question about that the argument here is simply that they don't because of the exception and this goes back to the earlier conversation about moss now could this court certify the question absolutely i don't think it's necessary and and i think i've gone over all those the points i wanted to make saul reserve the rest thank facts in this case your honour's are very straightforward plaintiff's claims in this case are predicated on two emails that were sent in the underline with a geisha and there's no question in this matter that the emails that they allege are forge were sent in the body of a settlement e mail that was explicitly intitled as such a protected settlement communication under federal rule that evidence for a predicated on the trans middle of the forged e mails not their creation and that makes sense because if there is fabricated evidence if there are e mails that were created in just sitting there never use there obviously no cause of action so it's important to note that all of plaintiff's claim claims in this matter are predicated on the publication of the e mails in the means by which those emails were published were a settlement email from counsel to counsel now the emails or these emails taken as evidence by the district court know they were never presented to the district court to be protective of what happens in judicial proceedings but if these e mails never saw the light of day in the judicial proceeding that is before the court how can the court sanction or do anything to correct this wrong or they were presented in the course of the litigation in the privilege applies to anything that happens in the course hardest part of the argument about the privileges we don't need to deal with that in a second piece of litigation because the first litigation will take care of it because the district court can sanction bad acts by attorneys and that's all good and well but here the district court would have known about it well i fact the district court did know about it because discovery was done on it in the underlying action defendants in the underlying action raised the issue to the core and actually did discovery the a subpoena on it so there was a mechanism that the defendants could have or did raise the issue in the district court and if the district court had had chosen or found based on any evidence that the there was a forgery of these e mails and it was a template that i mean most district courts have enough to do without worrying about things that are even admitted into evidence i mean if you're going to get into the weeds o discovery battles district court would have its hands full oh well it's plaintiff in this case that is alleging harm from the use of them already correct correct but you understand my point yes i for his new employer leeway so he got what was coming to him well you know i'm just saying that that was something that was this wasn't some all teary or motive that was that is the very motive of the of the that for certain they saw the e mails and he was fired well i don't think we know that for certain because i've done hundreds or restrictive covenant cases and a lot of times the new employer will choose to terminate an employee on their own accord without any sort of evidence like this because they decided that the new employee isn't worth the cost and expense of defending the enforcement of the restrictive covenant action so we don't know that in fact what we know from the record is that when we waste counsel of the new employers counsel was presented with this information he immediately question the provenance provenance of the e mail raises doubts about  counsel myself to a lot of questions about and we have the original these seem to be erroneous and once that happened once that happened they were never referenced or used again as the basis of settlement in court or anything else so the record which you know again plaintiff's claims mr peterson's claims are predicated on the tra e mail the transmittal e mails show that there was a doubt from the very beginning of the provenance of the the e mails so it doesn't really follow oh that's the allegation there's a real to me i think question about whether that claim is plausible that is the claim that we way acted directly in reliance on these so called forged e mails to terminate someone when we waste counsel immediately raise questions about their prov mr peterson also alleges that x p o created these e mails even though after a year of discovery in the underline action they've been able to come up with no specific facts in that regard there's no allegation in the complaint who created the e mails or when so really what we have in the complaint is another bald conclusion it's not specific facts and it raises another to milly issue clearly that kind of a communication falls within the scope of utah's very broad expanse of judicial proceedings privilege it applies to all stages whether it's settlement or otherwise doesn't have to be used  there's no question there's been no argument below on our motion to dismiss or in the appellate brief the expo hasn't met all three elements of the privilege i think the argument is that that is true as we know their privilege today but this takes it a bit too far i think is the argument of mr peterson because you're talking about fried and i think the suggestion that the mosque case has recognized this broad exception for any kind of bad faith or fraud is just it's wrong ironically mosse actually expanded the scope of the judicial proceedings privilege in utah by applying it for the first time to conduct if you read in mosques all throughout the opinion the court reaffirms in confirms the broad  scope of the privilege calling to absolute calling it extraordinary in scope and yet plaintiff relies on it to create an exception that would really  it would obliterate the whole entire put privilege in the first place and it's simply can't be it doesn't stand for that proposition as your honor is just briscoe indicated earlier  i think what ultimately what mohs is saying that the privilege only doesn't apply to attorney conduct if the attorney is acting for their own interests and not in their client's best interests that is not really an exception to this broad expanse of privilege that it masa itself expands and reaffirms really it's more a speaking to the second element of the privilege did these act real acts complained of really occur during the course of or related to a judicial proceeding and i think a mosque as well in the in the the point of must again is that we shouldn't be creating second third and fourth years of litigation yes kinds of issues because the district court handling the first case can handle the matter through sanctions how is that possible here again your honor as i said earlier the lead against the defendants below did raise this issue pursued discovery on it if they if they raise the issue pursue discovery then certainly they could continue to try to get some remedy for the alleged misconduct have they sought sanctions at this point know they had inside the sanctions that they would taint through that litigation would that make mr peterson whole not for the particular lost his job if you assume that there was some causal relationship between these e mails notwithstanding we waste coun explicit questions what's our closest case to a poll the district court here well i think it would probably be i think good case because of of how it reaffirms how broad the privilege really is and how it talks about the policies really behind it not foreseen or or avoiding a multiplicity of litigation and really the policy where we have the unique problem of damages that are really beyond the scope of the first litigation that is the loss of employment the i mean law yes is that's not an issue i mean in your first case is it no but the policy behind the privilege still applies of this case the policy is for free and open expression during judicial proceedings because the court can only prove perform its function in the parties can only advocate in take their various positions if they're free to express different ideas without fear of subsequent civil liability if we were to hold otherwise we'd really be in a situation where every lawsuit  could spawn related lawsuits based on what happened in the litigation so the principle that we're tying to further here is open and free expression without fear of civil liability that's what we've got here if i knew that there was going to be a danger of civil liability by engaging by forty in information that i good faith thought was relevant to the case and forwarded it in a settlement e mail those settlement discussions would never have occurred and part of the privilege is to or the recognition of the privilege it actually promotes settlement of disputes of people if it really when you're when you're publishing matters and exchanging information you should be very certain that which are circulated all sorts of instances in litigation where a party can look at the same thing and say that it promotes their point of view or it doesn't every single lawsuit involves credibility determinations for sense and that's why it's been applied so it's been applied to every single tort that you can think of intentional interference with prospective economic advantage defamation intentional infliction of emotional distress abuse of process civil conspiracy duress his identity theft excuse me i did anything after argument no no it it hasn't been applied yet but it has been applied to fraud claims in fact klein versus d c fs case that was originally sided by mr peterson in his brief that case held that for a fraud claim for perjured testimony in a lawsuit was in fact barred by the privilege and even went further than this is relevant to mr peterson's fabrication of evidence even though it wasn't used in evidence klein case when even further unsaid even fabrication of a fraud claim premised on fabrication of evidence during the course of an investigation would have been privileged if the investigation was an integral part of the judicial process so even there you have it explicitly applied to a fraud claim and in more of an dicked said it would have been applied to a fabrication of evidence claim if you're over time you have answered my question thank you thank you thank you john robinson again for the appellant aaron peterson three points your honors possibly for first as to judge briscoe's point i think i touched on this in my first time at the lectern but her point that there is no remedy in the underlying litigation that can make mr peterson whole is exactly right mr smeltzer couldn't offer anything that a discovery sanction or anything else would do to make peterson whole as to being fired and that ties into the procedural posture now it's possible that  end we could fail in this case on a failure proof for some of the reasons that mr smell supreme it out but we have alleged that he was fired and on review of a of on this procedural posture that's assumed to be true now number two posing council focuses on the publication and that makes a lot of sense because the publication is the most likely place for him to find support in the law i would like to point the court to the ninth circuit opinion which was applying california law so it's certainly not binding and is persuasive only to the extent that the utah supreme court would follow it but this is pain versus city of perjury was immune under the litigation privilege but then turning to the predicate acts the ninth circuit said allowing witnesses to so launder their non testimonial activities through their testimony would trip transform the immunity from a shield  and that's what we have here focusing on the publication of the e mails in the judicial process is no way as the pain court points out to excuse condo the that led to the ability to publish those emails now third complete agreement about what the policy behind the litigation privilege is the issue is whether or not that policy is supported or undermined by the result that the district court reached here and i submit that it's actually undermined excus g fraudulent evidence and identity theft in this way undermines the whole idea of coming into the court and seeking truth and finally as the klein case klein isn't very useful here for several reasons first because the utah court of appeals not the supreme court second because it was decided in two thousand and seven not two thousand and twelve so it's a lower court and it predates moss and also the nuances of that case are slightly different in that the the lie on the stand the perjury was absolutely immune but the it was only qualified immunity for the activity that led to the perjury and the court found that there was and without your honors i urge the court to reverse on everything but if the court disagrees with me on the common law certainly the identity theft is reversed in this case thank you very much thank you thank them counsel thank you both for your arguments this morning