The U.S. Ninth Circuit Court of Appeals handed down a ruling saying that Warner Brothers (DC’s parent company) can use documents that were stolen from Marc Toberoff’s office in their lawsuit against the lawyer.
Toberoff’s role in the long standing legal matter is summed up nicely in the opinion written by Circuit Court Judge Diarmuid F. O’Scannlain.
Marc Toberoff, a Hollywood producer and a licensed attorney, stepped into the fray around the turn of the millennium. As one of his many businesses, Toberoff pairs intellectual property rights with talent and markets these packages to movie studios. Having set his sights on Superman, Toberoff approached the Heirs with an offer to manage preexisting litigation over the rights Siegel and Shuster had ceded to D.C. Comics. He also claimed that he would arrange for a new Superman film to be produced. To pursue these goals, Toberoff created a joint venture between the Heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. The ethical and professional concerns raised by Toberoff’s actions will likely occur to many readers, but they are not before this
The full opinion, written in legalese, can be seen here.
The ruling doesn’t actually address any of the actual ownership issues of the the Last Son of Krypton, but rather, it was a procedural ruling dealing with Warner Brothers attempt to use stolen work papers given to them by David Michaels, a former employee of Toberoff’s (Warner Brothers had nothing to do with the theft, and when they received the pages, they followed proper legal procedure) Michaels took the papers in 2006, when he attempted to woo the Seigel and Shuster heirs as clients away from Toberoff. Among the documents stolen was a letter between Jerry Seigel’s son Michael, and Michael’s sister Laura Seigel Larson stating that he believed Toberoff’s motivation was to gain control of the Superman character himself and to produce films featuring the character. When the lawyer’s attempt failed, he sent the information to Warner Brothers.
Warner Brothers had later argued that Toberoff has convinced the Heirs to re-neg on a previously agreed upon settlement agreement, so that he could pursue his own agenda based off of the information in these papers. Toberoff argued that the information in those pages were under attorney/client privilege, even after he willingly turned over the same information to a grand jury. Warner Brothers argued that turning the papers over to the court was an act of waiving such privilegde and the Ninth Court agreed, ruling that Warner Brothers could use the papers, but then stayed that decision, pending an appeal.
This appeal is the case ruled on today. The only option Toberoff had in his appeal was to request a writ of mandamus.
From the opinion
“A writ of mandamus is an extraordinary remedy. A party seeking the writ has the “burden of showing that [his] right to the issuance of the writ is clear and indisputable.”
After carefully weighing Toberoff’s case, the court denied the petition of mandamus.