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Appeals court blasts lawyers and 'scorched earth tactics,' publishes opinion despite settlement

A California appellate panel was so outraged by “scorched earth tactics” in a suit over a purportedly stolen hard drive that it issued a decision as “an example to the legal community” despite a settlement in the case.

The opinion (PDF) by California’s Fourth District Court of Appeals blasted the plaintiff, Finton Construction Inc., and its legal team for filing the suit against the law firm Bidna & Keys, the Recorder (sub. req.) reports. Finton Construction was initially represented by lawyers led by Alston & Bird partner James Evans Jr., according to the Recorder.

“We find FCI’s conduct with respect to this entire case demonstrative of a particularly nasty type of scorched earth tactics,” the court opinion said, referring to Finton Construction as FCI. “While we strongly suspect that FCI is the prime mover behind the prosecution of this lawsuit, we remind FCI’s counsel–and indeed, all attorneys–that while they owe their clients a duty to zealously represent them, that zealousness does not trump the duty they owe the courts and the judicial process to prosecute only lawsuits with merit.

“The type of uncivil behavior and specious tactics demonstrated by filing this case represents conduct that brings disrepute to the entire legal profession and amounts to toying with the courts.”

The suit by Finton against Bidna & Keys had sought damages for conversion and receipt of the hard drive possibly containing client files drive during litigation over employees who left Finton to form a new company.

A dispute over a different hard drive had already been resolved with a stipulated order that the hard drive would be given to Finton’s computer expert, who would make copies and give them to Bidna & Keys. When a deposition revealed that a different exiting employee had also taken a hard drive, Bidna & Keys offered to follow the same copying process. Finton’s lawyers refused and filed the suit that peeved the California appeals court.

“It is unquestionable and undisputed that the acts alleged in the complaint all arise out of defendants’ representation of their clients in the underlying case,” the court said. “The only reason the hard drive was ever turned over to defendants is because they were counsel in that matter. The only purported reason defendants are being sued is because they refused to unconditionally return the hard drive, which constitutes potential evidence in the underlying matter. In reality, it seems they are being sued for representing their clients.”

The appeals court noted that the parties settled less than 48 hours before the oral argument, but said it declined to dismiss the appeal because “the lack of civility demonstrated in this case is a matter of public interest.”

“This case as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate,” the court said.

Evans told the Recorder in an interview that the lawsuit was a justified attempt by Finton to protect its records from exploitation. His firm did not handle the case on appeal.