PASADENA (CN) – DC Comics has argued that it should have access to legal documents related to a legal battle over the rights to Superman because they are not protected by the attorney-client privilege.
On Tuesday, counsel for attorney Marc Toberoff went before the three-judge panel of the 9th Circuit in Pasadena, challenging an order for the production of privileged documents that were allegedly stolen from Toberoff’s law firm by another attorney and handed to Warner Brothers during representation of the heirs of Jerry Siegel and Joe Shuster, the creators of Superman.
DC Comics and Warner Brothers sued lawyer Marc Toberoff, claiming that he had improperly claimed an interest in the continued exploitation of the Man Of Steel.
The publisher’s complaint says that Toberoff persuaded the Siegel and Shuster’s heirs to terminate their agreements with DC Comics and file invalid copyright notices. The heirs entered into a joint venture with Toberoff’s Pacific Pictures Corp., granting him a controlling stake in the heirs’ interest in the superhero character.
The documents at issue were unearthed during a theft investigation by the U.S. Attorney’s office, and detailed Toberoff’s interactions with the estates.
Magistrate Judge Ralph Zaresky ruled that DC comics should have access to the documents last year, over Toberoff’s objections that he had an agreement with the government to keep the documents under wraps.
Chief Judge Alex Kozinski and judges Diarmuid O’Scannlain and Norman Smith heard arguments from Toberoff’s counsel, Richard Kendall of Kendall Brill Klieger, and DC Comics’ attorney, Matthew Kline of O’Melveny & Myers.
Kozinski asked Kline why the documents were not protected under attorney-client privilege. The judge noted that even if an attorney states explicitly that he has a waiver from his client, that is not enough. “Where is the client’s action?” he asked.
Kline argued that all the evidence showed that the clients had expressly waived the attorney-client privilege and that Toberoff had obtained their consent to release the documents.
But during his rebuttal, Kendall said that grand jury secrecy offered “complete protection” against disclosure. He added that he had asserted attorney-client privilege “every which way” and noted that “the entire crime was the theft of privileged documents.”
DC Comics wants to void the agreements the heirs made with Toberoff, and restore its exclusivity rights to the Superman character.