Warner Bros is doing the happy dance in the Superman legal tangle after what was called a unanimous and extremely significant ruling from the U.S. 9th Circuit Court of Appeals. Heard before Alex Kozinski, Chief Judge, Diarmuid F. O’Scannlain and N. Randy Smith, Circuit Judges, the Opinion (see link below) was written by Judge O’Scannlain.
The decision is pretty heavy on the legalese, but until Jeff Trexler comes along and explains it, this seems to be a WB victory as Trexler wrote about recently, and also refers to WB’s attempts to get attorney Marc Toberoff removed from the case based on papers that were stolen from his office. Warners was arguing that Toberoff was participating in the proceeds of the Jerry Siegel estate’s legal quest to receive half of the profits from Superman—and as such was materially connected.
We’ll have a read through but in the meantime, Warner Brother released the following statement:
We are extremely pleased that the 9th Circuit unanimously found in our favor. The ruling means that defendant Mark Toberoff must now turn over critical evidence in the pending litigation against him and others.
Toberoff also released a statement:
“We cooperated with the US Attorney’s office to enable them to investigate the theft from our law firm of the Siegels and Shuster’s privileged documents. We are disappointed in today’s decision which holds that such cooperation with law enforcement by the victims of a privacy crime, itself waives privilege as to stolen documents. However, nothing in this ruling or the documents at issue will affect the merits of this case. We are considering our options as to the ruling, and will continue to vigorously defend our clients’ rights.”
UPDATE: And here’s the Beat’s legal analyst, Jeff Trexler, explaining what happened for laymen:
Earlier today, the Ninth Circuit U.S. Court of Appeals ruled in favor of DC in its case against Marc Toberoff and his company, Pacific Pictures. While the core of the decision is a technical aspect of procedural law pertaining to attorney-client privilege, the court’s opinion reinforces the central point of my most recent posts: namely, that by making Toberoff the target, Warner Brothers (WB) very well might be able to undo the Siegel heir’s historic courtroom victory.
As you may recall, WB and its replacement outside counsel, Daniel Petrocelli, filed a lawsuit challenging the propriety of Toberoff’s representation of the Siegel heirs in their attempts to regain Superman-related material from the company. A key part of WB’s case was a set of documents regarding Toberoff’s dealings with the Siegel and Shuster heirs, which had been sent to DC executives by a whistleblower.
This is the case at issue today. Toberoff claimed the leaked documents were protected by attorney-client privilege and thus could not be part of WB’s evidence. However, Toberoff had provided these same documents to the U.S. Attorney’s office in its criminal investigation into the whistleblower’s alleged theft. WB asked the court to give the company full access to the documents that Toberoff had given the government. According to WB, once these documents were supplied to the government, the attorney-client no longer applied.
The Ninth Circuit’s ruling today gives a clear victory to WB in the dispute over these documents–the panel unanimously held that attorney client privilege no longer applied. The reasoning is somewhat technical, and because there is a split on this issue among federal circuits, there’s a chance, however slim, that the Supreme Court might hear an appeal. Unless the Supreme Court rules otherwise, the magistrate’s order that Toberoff provide WB with all of the documents given to the government will stand.
What does this mean for the Siegel lawsuit? Come back to The Beat in a few for my next post.
Heidi MacDonald is the founder and editor in chief of The Beat. In the past, she worked for Disney, DC Comics, Fox and Publishers Weekly. She can be heard regularly on the More To Come Podcast. She likes coffee, cats and noble struggle.