In what could be a key decision in the long-running war over the rights to Superman, the Ninth Circuit Court of Appeals has ruled that attorney-client privilege does not apply documents supplied to Warner Bros. by a whistleblower because Siegel and Schuster estate attorney Marc Toberoff had provided copies of the same documents to the U.S. Attorney’s office that was investigating the theft of the documents, in effect waiving attorney-client privilege. 

 

The documents in question are the lynchpin of Warner Bros.’ strategy to roll back the decision that Toberoff won that granted a major portion of the Superman rights to the Siegel and Schuster estates starting in 2013 by charging Toberoff with “tortious interference” with an agreement that the Studio had negotiated with the Siegel and Schuster heirs (see "Studio Sues Superman Mouthpiece").  It is possible, but unlikely that Toberoff could appeal the 9th Circuit’s decision to the Supreme Court. 

 

Warner Bros. had tried to use the documents in question in its suit against Toberoff, but the lawyer objected saying the documents detailing the interactions of Toberoff, super agent Ari Emmanuel, and the Siegel and Schuster heirs were protected by attorney client privilege.  Last year a judge ruled that Toberoff had essentially waived his attorney client privilege and that Warner Bros. could use the documents (see "DC, Warners Can Use Stolen Docs").  Now the 9th Circuit has agreed in an opinion, which not only allows Warner Bros. to use the documents, but also provides some snide ammunition in the form of raised eyebrow comments about Toberoff’s actions in soliciting the high profile case, appearing to suggest that in many of the documents Toberoff was acting more like a businessman  than a lawyer, "Furthermore, most of the documents are not covered by attorney-client privilege because they do not represent communications between a lawyer and his client for the purpose of obtaining legal advice."