Laura Larson v. Warner Bros Entertainment, Inc, et al

Filing 29

Filed (ECF) Appellees DC Comics and Warner Bros. Entertainment, Inc. in 11-55863, Appellants DC Comics and Warner Bros. Entertainment, Inc. in 11-56034 Motion to assign case to prior panel. Date of service: 03/23/2012. [8115846] [11-55863, 11-56034] (DP)

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EXHIBIT A Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 1 of 30 Page ID #:24244 1 2 3 4 5 6 DANIEL M. PETROCELLI (S.B. #097802) dpetrocelli@omm.com MATTHEW T. KLINE (S.B. #211640) mkline@omm.com CASSANDRA L. SETO (S.B. #246608) cseto@omm.com O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 10 PATRICK T. PERKINS (admitted pro hac vice) pperkins@ptplaw.com PERKINS LAW OFFICE, P.C. 1711 Route 9D Cold Spring, NY 10516 Telephone: (845) 265-2820 Facsimile: (845) 265-2819 11 Attorneys for Plaintiff DC Comics 7 8 9 12 UNITED STATES DISTRICT COURT 13 14 15 16 17 CENTRAL DISTRICT OF CALIFORNIA Case No. CV 10-03633 ODW (RZx) DC COMICS, Plaintiff, v. 23 PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, LAURA SIEGEL LARSON, an individual and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive, 24 Defendants. 18 19 20 21 22 25 26 27 DC COMICS’ NOTICE OF MOTION AND MOTION FOR REVIEW OF MAGISTRATE’S ORDER ON PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO FED. R. CIV. P. 72(A) AND L.R. 72-2.1 DECLARATION OF JASON H. TOKORO AND [PROPOSED] ORDER FILED CONCURRENTLY HEREWITH Judge: Magistrate: Hon. Otis D. Wright II Hon. Ralph Zarefsky Hearing Date: Hearing Time: Courtroom: Mar. 26, 2012 1:30 p.m. 11 28 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER EXHIBIT A 6 Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 2 of 30 Page ID #:24245 1 2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on March 26, 2012, at 1:30 p.m., or as soon 3 thereafter as the matter may be heard by the above-entitled court, located at 312 4 North Spring Street, Los Angeles, California in Courtroom 11, plaintiff DC Comics 5 will and hereby does move the Court for review of the Magistrate’s February 15, 6 2012, Order On Plaintiff’s Motion To Compel The Production Of Documents. 7 This motion is made pursuant to paragraph 4 of this Court’s Standing Order, 8 Docket No. 18, Central District Local Rule 72-2.1, and Federal Rule of Civil 9 Procedure 72(a), on the ground that the Magistrate’s ruling denying DC’s motion to 10 compel the production of a single communication from Kevin Marks to the Siegel 11 heirs is clearly erroneous and contrary to law. 12 Pursuant to paragraph 5(b) of this Court’s Standing Order Regarding Newly 13 Assigned Cases and Central District Local Rule 7-3, the parties have attempted 14 unsuccessfully to resolve their disputes and therefore respectfully seek the 15 assistance of the Court. 16 This motion is based on this Notice of Motion and Motion; the 17 accompanying Memorandum of Points and Authorities; the concurrently-filed 18 Declaration of Jason H. Tokoro and exhibits in support thereof; any additional 19 briefing that may be filed; all exhibits, files, and records on file in this action; 20 matters of which judicial notice may be taken; and such additional submissions and 21 argument as may be presented at or before the hearing on this motion. 22 Dated: February 27, 2012 Respectfully Submitted, O’MELVENY & MYERS LLP 23 By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for Plaintiff DC Comics 24 25 26 27 28 -1- EXHIBIT A 7 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 3 of 30 Page ID #:24246 1 This motion for review concerns one document. On October 24, 2011, this 2 Court granted DC’s then-pending motion for review, and compelled Defendants to 3 produce a July 11, 2003, letter from defendant Laura Siegel Larson to her brother, 4 Michael Siegel. Docket No. 336. In that letter, Larson disclosed the contents of an 5 August 2002 memo from her attorney Kevin Marks to the Siegel heirs (the “Marks 6 Memo”) that directly refutes key factual and legal positions that the Siegels and 7 Marc Toberoff have taken in this case and the related Siegel cases. Because any 8 claim of privilege in the subject matters of the Marks Memo that were disclosed in 9 the July 2003 letter have been waived, the Marks Memo (or at least the portions of 10 11 it that have already been disclosed) should also be ordered produced. 1. Laura Siegel Larson’s July 11, 2003, letter to her brother Michael—which 12 this Court ordered defendants to produce on October 24, see id.—openly discloses 13 that Laura’s then-attorney, Kevin Marks, told her in August 2002 that she could not 14 accept Toberoff’s offer to buy her family’s putative Superman rights because she 15 “had a deal with Time Warner/DC” and that, if she repudiated her October 2001 16 agreement with DC and accepted Toberoff’s competing offer, Marks would have to 17 “testify against [her] in court.” Docket No. 362-2 at 287. 18 Both here and in Siegel, Laura and Toberoff have argued that no such deal 19 existed—contending that while Marks confirmed with DC in October 2001 that 20 such a deal was made, as of May 2002, the Siegels told DC the deal had fallen apart 21 and the October 2001 deal was not “enforceable.” E.g., Docket No. 368 at 5:16-21. 22 But as the admissions in Laura’s long-suppressed July 2003 letter make clear, when 23 Marks wrote his August 2002 memo he never qualified his description of DC’s deal 24 with the Siegels. Docket No. 372 at 1:23-2:21. Indeed, he remained emphatic in 25 2002 that a “deal” existed. Id. These powerful admissions directly support DC’s 26 claims in this case and the Siegel cases and also impeach key witness testimony. Id. 27 28 2. Upon receipt of the July 2003 letter, DC moved to compel production of the Marks Memo, so that it could examine Marks, Laura, Toberoff, and others -1- EXHIBIT A 8 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 4 of 30 Page ID #:24247 1 using not only Laura’s admissions in her July 2003 letter, but also Marks’ 2 admissions in his 2002 memo. Defendants resisted, arguing that notwithstanding 3 the disclosure of its contents, the Marks Memo was nonetheless still shielded by a 4 “common-interest privilege,” and Laura had somehow not waived privilege when 5 she wrote her July 2003 letter. Defendants’ position is refuted by this Court’s 6 October 24 order, defendants’ own privilege logs, and the controlling case law on 7 privilege waivers. 8 a. This Court’s October 24 order compelling defendants to produce the July 9 2003 letter rejected any privilege claim in the letter and, importantly, its contents. 10 The Court ordered the July letter produced despite defendants’ claims it was subject 11 to a common-interest privilege and contained legal advice, and following the 12 Court’s order, defendants did not attempt to further contest the matter and produced 13 the letter. Compare Docket No. 336, with Docket No. 331 at 1-2, 7-9. The Court’s 14 ruling is the law of this case and was clearly correct. By July 2003, Laura’s and 15 Michael’s relationship had soured: Michael was openly accusing Toberoff of fraud, 16 and Toberoff was withholding key facts from Michael and his counsel. Docket 17 Nos. 362 at 10:15-11:26; 372 at 2:22-3:11. Moreover, an Ohio district court 18 examined 15 communications between Laura and Michael from this time period 19 and rejected the notion that Laura’s and Michael’s interests were aligned or that 20 their communications were privileged. Docket No. 161-5.1 21 b. To the extent any plausible claim of common interest privilege could have 22 been made, it was waived. Despite asserting “joint” or “common” interest privilege 23 some 505 times in their privilege logs in this case, defendants never once asserted a 24 common-interest privilege claim over the Marks Memo. Compare, e.g., Docket 25 No. 162-6 at 422, with id. at 418-19; see Appendix A (reproducing logs); Tokoro 26 27 28 1 Those 15 communications are dated Apr. 16, 2003; Apr. 30, 2003; June 18, 2003; July 16, 2003; Aug. 6, 2003 (two documents); Nov. 12, 2004 (same); Nov. 17, 2004 (same); Nov. 18, 2004 (same); Nov. 24, 2004; Nov. 29, 2004; and Jan. 17, 2005. -2- EXHIBIT A 9 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 5 of 30 Page ID #:24248 1 Decl. ¶¶ 2-5. The failure to assert a common-interest privilege over the Marks 2 Memo means any entitlement to that privilege that might theoretically exist, even 3 assuming it was not already overruled by this Court, was abandoned. E.g., Lenz v. 4 Universal Music Corp., 2009 U.S. Dist. LEXIS 105180, at *7-8 (N.D. Cal. Oct. 29, 5 2009) (work-product privilege claim waived where defendant did not raise specific 6 claim in its original logs); Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct., 408 7 F.3d 1142, 1149-50 (9th Cir. 2005) (waiver given five-month delay in producing 8 privilege logs); Vieste, LLC v. Hill Redwood Dev., 2010 U.S. Dist. LEXIS 126607, 9 at *27-29 (N.D. Cal. Nov. 18, 2010) (waiver when documents added to privilege 10 log six months after initial production); Hoot Winc, LLC v. RSM McGladrey Fin. 11 Process Outsourcing, LLC, 2010 U.S. Dist. LEXIS 57880, at *8-11 (S.D. Cal. June 12 11, 2010) (same; one year). 13 c. Laura’s July 2003 letter (quoted below) openly discloses and thus effects 14 an unequivocal subject-matter privilege waiver over the following aspects of the 15 Marks Memo: 16 17 18 19 20 21 We fired Kevin Marks and Bruce Ramer because they were insisting we [Laura and her mother, Joanne Siegel] take a bad TW/DC deal. You’ll remember that you [Michael], Don Bulson [your lawyer] and we were shocked when Kevin Marks said that if asked to, he would testify against us in court. … Kevin Marks had turned Marc [Toberoff] away saying we had a deal with DC when we did not. … Kevin Marks told Marc we had a deal with Time Warner/DC. Docket No. 362-2 at 287 (emphasis added). 22 The case law is legion that when one discloses the subject matter of an allegedly 23 privileged communication in a non-privileged forum in this way, all privilege in 24 that same subject matter is waived. E.g.: 25 26 27 • Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (“Disclosing a privileged communication …. results in waiver as to all other communications on the same subject.”); Weil v. Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24 (9th Cir.1981) (same); 28 -3- EXHIBIT A 10 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 6 of 30 Page ID #:24249 7 • Informatica Corp. v. Bus. Objects Data Integration, Inc., 454 F. Supp. 2d 957, 963 (N.D. Cal. 2006) (“The widely applied standard for determining the scope of a waiver of attorney-client privilege is that the waiver applies to all other communications relating to the same subject matter.”); • Phoenix Solutions Inc. v. Wells Fargo Bank, N.A., 254 F.R.D. 568, 576 (N.D. Cal. 2008) (“When either privilege is waived, its scope extends to ‘all communications on the same subject matter ....’); U.S. v. Reyes, 239 F.R.D. 591, 606 (N.D. Cal. 2006) (same). 8 3. Judge Zarefsky denied DC’s motion seeking the Marks Memo, however. 1 2 3 4 5 6 9 In doing so, he made several errors similar to those made when he denied DC 10 access to the July 2003 letter—a decision this Court rightly overturned. Supra at 1. 11 a. First, Judge Zarefsky made a critical factual error in assuming that because 12 defendants asserted an “attorney-client” privilege claim over the Marks Memo, they 13 also asserted and preserved a “common-interest” privilege claim. Docket No. 378 14 at 2:9-3:1. As Appendix A to this brief makes plain, however, defendants knew full 15 well how to assert “joint” or “common” interest privilege claims in their logs, and 16 for whatever tactical reasons, they chose never to do so for the Marks Memo: 17 - Defendants’ Marks Memo log entry (asserting only “Atty/Client” privilege): 18 19 - Other log entries (asserting “Atty/Client” and “Joint Interest” privileges): 20 21 22 23 24 25 26 27 28 Docket No. 162-6 at 422, 418-19; see also Tokoro Decl. ¶¶ 2-5; Appendix A. b. Second, citing no case directly to support his ruling on what he said were the “limited and quite unusual circumstances” here, Judge Zarefsky held that even though Laura’s July 2003 letter was not privileged, her open and frank discussion of the contents of the Marks Memo in that July 2003 letter somehow did not waive -4- EXHIBIT A 11 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 7 of 30 Page ID #:24250 1 the privilege in those portions of the Marks Memo that she voluntarily disclosed. 2 Docket No. 378 at 5:16-25. This holding is clearly erroneous as well. 3 Judge Zarefsky reached his holding employing the following logic. He 4 reasoned: (i) common-interest privileges are recognized by the courts, id. at 3:19- 5 4:10; (ii) “statements made during the period that the joint defense agreement” are 6 privileged and remain privileged even after the agreement is terminated, id. at 4:13- 7 15; (iii) one party to a joint privilege cannot unilaterally waive it, id. at 4:15-21; and 8 (iv) since Laura did no more in her July 2003 letter than advert to statements in the 9 Marks Memo that Michael had seen before, no waiver had occurred, id. 5:16-21. 10 Parts (ii), (iii), and (iv) of this reasoning are all flawed and in conflict with 11 the order of this Court. Starting with (ii), in its October 24 order, this Court 12 rejected defendants’ claim that the July 23 letter was covered by the common- 13 interest privilege. Compare Docket No. 336, with 331 at 1-2, 7-9. While Judge 14 Zarefsky said that Laura and Michael might still have had certain other interests in 15 common in July 2003, Docket No. 378 at 4:22-5:15, he did not hold—nor could he 16 hold, given this Court’s order—that the July 23 letter was privileged. What this 17 means is that in a clearly non-privileged letter—that Laura never marked 18 privileged, that openly discussed Michael’s animosity toward Toberoff, and that 19 Michael could have shared with anyone, given that it was not privileged—Laura 20 chose to discuss and disclose what her lawyer, Kevin Marks, had told her in 2002. 21 Laura’s discussion of the Marks Memo in her July 2003 letter was not a 22 “statement[] made during the period that the joint defense agreement was in 23 existence.” Id. at 4:13-15. Rather, it was a new statement made in a letter outside 24 the auspices of any such common-interest agreement, when Laura was trying to 25 advance her own commercial interests, which were directly antagonistic to 26 Michael’s. Docket Nos. 362 at 10:15-11:26. By disclosing the contents of Marks’ 27 memo in this non-privileged forum, Laura waived any privilege in Marks’ August 28 2002 advice. -5- EXHIBIT A 12 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 8 of 30 Page ID #:24251 1 Electro Scientific Indus., Inc. v. Gen. Scanning, Inc., 175 F.R.D. 539 (N.D. 2 Cal. 1997)—a case Judge Zarefsky did not address—is instructive here. There, a 3 company sought to advance its “commercial interests” by disclosing to customers 4 patent law advice that its lawyers had given it about the invalidity of a competitor’s 5 patents. The advice had once been privileged; it was “the bottom line of the 6 lawyer’s opinion, his conclusion, the ultimate outcome of his legal reasoning.” Id. 7 at 543. But the company waived any privilege when it made the tactical choice to 8 discuss the advice outside the umbrella of privilege to achieve commercial gain. Id. 9 Here, too, Laura did not need to discuss Marks’ memo in a non-privileged 10 letter to her brother. She only did so hoping to convince him to sell his rights to 11 Toberoff—her business partner. That clearly commercial choice has consequences; 12 namely, waiving privilege in the Marks Memo, or at least all parts of it discussed in 13 Laura’s July 2003 letter. Id.; U.S. v. Mendelsohn, 896 F.2d 1183, 1188-89 (9th Cir. 14 1990) (waiver; advice disclosed to third party); Weil, 647 F.2d at 25 (same; advice 15 disclosed to opposing counsel); Reyes, 239 F.R.D. 591, 603 (same; DOJ). 16 Turning to point (iii), while it is true that one party to a joint-privilege cannot 17 waive it for all parties, the rule rightly only applies when one holder of the joint- 18 privilege makes a waiver, and a third party tries to use the waiver against another 19 party to the privilege. See Appendix B (collecting cases). Here, it is Laura who 20 made the waiver, and it is against Laura that DC seeks to use the waiver. The no- 21 unilateral-waiver rule makes sense if, for example, Criminal Defendants A and B 22 share a joint defense; A turns State’s evidence; and the State asks A to disclose all 23 that B told him. In such cases, it is not fair to bind B by A’s choice. Id. But here, 24 holding Laura to her own waiver is fully fair and consistent with the case law. Id. 25 As to point (iv), Judge Zarefsky reasoned that Michael was already aware of 26 the Marks Memo, so it should not matter that outside the terms of their common- 27 interest agreement, Laura re-communicated the memo’s contents to him. Not so. 28 Claims of privilege impede the search for the truth, see U.S. v. Martin, 278 F.3d -6- EXHIBIT A 13 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 9 of 30 Page ID #:24252 1 988, 999 (9th Cir. 2002)—no more so here, where defendants have taken factual 2 positions directly refuted by their own internal communications. Because privilege 3 claims “impede[] full and free discovery of the truth,” they are “strictly construed,” 4 Weil, 647 F.2d at 24, and to maintain privilege, one must jealously safeguard it and 5 may not selectively communicate outside its protections, e.g., id.; Westinghouse 6 Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1424 (3d Cir. 1991). 7 Yet that is exactly what Laura did here. In a letter this Court ruled was not 8 privileged, she openly republished Marks’ legal advice. If she wanted to discuss 9 such privileged matters in a protected way, she was required to get Michael to agree 10 to shield their discussions in a new common-interest privilege. She never did so, 11 and for good reason. By July 2003, her interests had diverged, and Toberoff was 12 manipulating her, so he could buy Michael’s rights for a pittance. Docket Nos. 13 183-4 at 47; 305-52 at 1863:5-11, 1863:18-1867:2, 1877:21-1878:3; 362-2 at 3-5. 14 4. There are two additional and independent reasons Judge Zarefsky plainly 15 erred in not ordering the Marks Memo produced. 16 a. The Toberoff Timeline, like the July 2003 letter, openly discusses Marks’ 17 memo and recounts: Toberoff approaching Marks to acquire the Siegels’ interests; 18 Marks telling Toberoff it was a “no go” because the Siegels “already reached an 19 agreement with” DC; Marks’ conveying Toberoff’s offer to the Siegels; and Marks 20 “tell[ing] the Siegels that he would testify in court against [them] if they accepted 21 this offer….” Docket No. 49, FAC Ex. at 63. After DC obtained the Timeline by 22 court order in 2008, it told defendants it intended to file it publicly as Exhibit 1 to a 23 discovery motion. Docket No. 42 at 43. Despite arguing the Timeline is “riddled 24 with privileged information,” Docket No. 95 at 20:5, defendants took none of the 25 required steps to keep the Timeline from becoming a fully public document. DC 26 told defendants if they wanted to prevent the Timeline from being publicly filed, 27 they were required to move for a protective order to seal it. Docket No. 42 at 43- 28 44. Defendants chose not to so move, and the Timeline, including its description of -7- EXHIBIT A 14 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 10 of 30 Page ID #:24253 1 the Marks Memo, has been a matter of public record since 2009. Id. Defendants’ 2 failure to take the steps necessary to preserve confidentiality in the Timeline waived 3 any privilege in its contents and enclosures. E.g., Weil, 647 F.2d at 24. 4 Judge Zarefsky’s ruling does not address this argument, though DC clearly 5 raised it. Docket Nos. 362 at 11-12; 372 at 3-4. Instead, it addresses an argument 6 DC never made. The order holds the mere “existence” of the Timeline does not 7 waive privilege in its contents because Laura or her agents did not write it. Docket 8 No. 378 at 5:26-6:5. But authorship was never the issue; it was Judge Larson’s 9 ruling that any privilege had been waived in the document, followed by defendants’ 10 11 chosen failure to maintain the document’s confidentiality, that created the waiver. b. Judge Zarefsky also never addressed that significant parts of the Marks 12 Memo, as described by Laura herself, are not privileged. Compare id., with Docket 13 Nos. 362 at 12-13; 372 at 4. Both Larson’s July 2003 letter and the Timeline 14 describe the memo as (a) Marks’ republishing Toberoff’s offer to acquire the 15 Siegels’ purported rights; (b) Marks’ republishing his disclosure to Toberoff that 16 the Siegels reached an agreement with DC; and (c) Marks’ recounting the fact the 17 Siegels reached a settlement agreement with DC in 2001. Attorney-client privilege 18 does not extend to the transmission of mere facts such as these. E.g., Upjohn Co. v. 19 U.S., 449 U.S. 383, 395-396 (1981). Marks was, in large part, “serv[ing] merely as 20 a conduit for transmission of a message,” and privilege does not extend to Marks’ 21 words and actions as “attorney-messenger.” U.S. v. Freeman, 519 F.2d 67, 68 (9th 22 Cir. 1975); McKay v. Comm’r, 886 F.2d 1237, 1238 (9th Cir. 1989) (relaying of 23 notice from IRS to client “is not in the nature of a confidential communication”); In 24 re Fischel, 557 F.2d 209, 212 (9th Cir. 1977) (“attorney’s involvement in, or 25 recommendation of, a transaction does not place a cloak of secrecy around all 26 incidents of such a transaction”). Indeed, defendants do not dispute that key parts 27 of the Marks Memo, including Toberoff’s business offer to the Siegels, are not 28 -8- EXHIBIT A 15 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 11 of 30 Page ID #:24254 1 privileged. Docket No. 368 at 14:22-15:2. Given this, there is no basis to deny DC 2 access to these and other non-privileged portions of the Marks Memo. 3 5. In conclusion, the Court should either order the Marks Memo produced 4 outright (as it did with the July 2003 letter), or review it in camera so that the 5 portions of the Marks Memo that were disclosed in Laura’s July 2003 letter and/or 6 the Toberoff Timeline can be produced and provided to DC. The critical facts and 7 admissions in the letter are an important component of the search for the truth in 8 these cases. 9 Dated: 10 11 12 February 27, 2012 Respectfully Submitted, O’MELVENY & MYERS LLP By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- EXHIBIT A 16 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 12 of 30 Page ID #:24255 1 2 3 APPENDIX A: A. Marks Communication as Identified in Siegels’ Privilege Log in this Case (Docket No. 162-6 at 422): 4 5 6 7 B. “Common” or “Joint” Interest Privilege Entries in Siegel Privilege Log in this Case (Docket No. 162-6 at 392-411, 413-14, 416-23, 425-28, 430-32, 439, 444, 448, 453, 462, 464-65, 480, 502, 504, 506-07): 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-1 EXHIBIT A 17 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 13 of 30 Page ID #:24256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-2 EXHIBIT A 18 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 14 of 30 Page ID #:24257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-3 EXHIBIT A 19 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 15 of 30 Page ID #:24258 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-4 EXHIBIT A 20 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 16 of 30 Page ID #:24259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-5 EXHIBIT A 21 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 17 of 30 Page ID #:24260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-6 EXHIBIT A 22 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 18 of 30 Page ID #:24261 1 2 3 4 5 6 7 8 9 10 11 12 C. “Common” or “Joint” Interest Privilege Entries in Peary/Peavy Privilege Log in this Case (Docket No. 162-5 at 389): 13 14 15 16 17 D. “Common” or “Joint” Interest Privilege Entries in Toberoff Privilege Log in this Case (Docket No. 163-17 at 856-75, 877-78, 880-88, 890-93, 896-98, 906, 912, 918, 923, 932-33, 935-36, 952, 974-75, 977, 979-80, 982, 1036-38, 1041-42, 1045): 18 19 20 21 22 23 24 25 26 27 28 Appendix A-7 EXHIBIT A 23 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 19 of 30 Page ID #:24262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-8 EXHIBIT A 24 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 20 of 30 Page ID #:24263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-9 EXHIBIT A 25 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 21 of 30 Page ID #:24264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-10 EXHIBIT A 26 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 22 of 30 Page ID #:24265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-11 EXHIBIT A 27 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 23 of 30 Page ID #:24266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-12 EXHIBIT A 28 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 24 of 30 Page ID #:24267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-13 EXHIBIT A 29 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 25 of 30 Page ID #:24268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-14 EXHIBIT A 30 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 26 of 30 Page ID #:24269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix A-15 EXHIBIT A 31 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 27 of 30 Page ID #:24270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX B: U.S. v. Gonzalez, 2012 WL 206266, at *6-8 (9th Cir. Jan. 25, 2012) (Luis Alberto Gonzalez and Katherine Elizabeth Paiz shared joint-defense agreement in criminal case; Paiz filed habeas petition and put at issue Gonzalez’s discussions with Paiz’s counsel Nina Wilder by arguing ineffective assistance of counsel; given habeas filing, government sought discovery of all joint-defense discussions between Gonzalez and Wilder; court held that Gonzalez not bound by Paiz’s waiver and, thus, government prevented from discovering discussions between Gonzalez and Wilder during term of joint defense agreement) Teleglobe Commc’ns Corp. v. BCE, Inc. (In re Teleglobe Commc’ns Corp.), 493 F.3d 345, 379-80 (3d Cir. 2007) (BCE Inc. and Teleglobe shared a joint defense and created documents during the course of the joint representation; Teleglobe disclosed documents in insolvency proceedings and waived attorney-client privilege in favor of debtors; held: BCE not bound by Teleglobe’s waiver) In re Grand Jury Subpoenas, 902 F.2d 244, 249-50 (4th Cir. 1990) (subsidiary and parent company part of joint defense agreement; divestiture of subsidiary gave subsidiary right to unilaterally waive any privilege in documents not related to the joint defense but its waiver could not be used to compel parent company to produce privileged documents in response to grand-jury subpoenas) John Morrell & Co. v. Local Union 304A of the United Food & Commercial Works, AFL-CIO, 913 F.2d 544, 555-56 (8th Cir. 1990), cert. denied, 500 U.S. 905 (1991) (John Morrell & Co. and settling employee class from class action part of joint-defense agreement; Morrell disclosed legal memorandum to settling employee class as part of joint-defense agreement; settling employee class disclosed legal memorandum to third party (United Food & Commercial Workers International Union); United Food sought to use legal memorandum as evidence in later court proceeding, and Morrell objected; held: United Food could not introduce legal memorandum into evidence since Morrell itself had not waived privilege) Oppliger v. U.S., 2010 WL 503042, at *4-6 (D. Neb. Feb. 8, 2010) (James H. Oppliger and Richard Behrns shared common-interest agreement; Behrns shared common-interest privilege communications with government; Oppliger objected; court ordered government to return or destroy copies of privileged communications produced to it by Behrns) Coudriet v. Int’l Longshore & Warehouse Union Local 23, 2008 WL 2262322, at *2-3 (W.D. Wash. May 29, 2008) (International Longshore & Warehouse Union Appendix B-1 EXHIBIT A 32 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 28 of 30 Page ID #:24271 1 2 3 4 5 6 7 8 9 10 11 and local unions shared common-interest agreement; local unions disclosed several common-interest-privilege protected statements in complaint against ILWU; court ordered paragraphs of complaint stricken because there is no showing that ILWU has waived the common-interest privilege) S.E.C. v. Nicita, 2008 WL 170010, at *3-4 (S.D. Cal. Jan. 16, 2008) (Advanced Marketing Services, Michael Nicita (CEO), and Edward Leonard (CFO) shared common-interest agreement; AMS shared common-interest privilege communications with SEC; SEC ordered to return to Nicita and Leonard privileged documents produced to the SEC by cooperating AMS) ASARCO, LLC v. Americas Mining Corp., 2007 WL 3504774, at *7-8 (D. Idaho Nov. 15, 2007) (DOJ and Idaho attorney general formed joint-defense relationship and share documents; DOJ produced shared documents in response to FOIA request; Idaho attorney general objects; court quashed subpoenas seeking jointdefense documents because Idaho did not waive its right to assert privilege) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Static Control Components, Inc. v. Lexmark Int’l, Inc., 2007 WL 926985, at *7 (E.D. Ky. March 26, 2007) (Static Control Components, Inc. and Pendl shared joint-defense relationship; Pendl puts at issue Static’s discussions with Pendl’s counsel (Wyatt, Tarrant & Combs, LLP) by stating intention to rely on advice-ofcounsel defense to Lexmark International, Inc.’s claims; court quashed subpoena to Wyatt seeking joint-defense communications because Pendl could not waive privilege for Static) The Jordan (Bermuda) Inv. Co., Ltd. v. Hunter Green Invs. Ltd., 2006 WL 2773022, at *2-3 (S.D.N.Y. Sept. 27, 2006) (Investment Management Services, Inc.; International Fund Services, N.A. LLP; International Fund Services Ireland Ltd.; Beacon Emerging Debt Fund, Ltd.; Beacon Growth Fund LLP; and Hunter Green Investments, Ltd. shared joint representation concerning private placement offering; the Beacon entities waived privilege; court denied The Jordan (Bermuda) Investment Co.’s motion to compel production of joint-defense documents, finding Beacon entities could not waive privilege of separate business entities) U.S. v. LeCroy, 348 F. Supp. 2d 375, 387-88 (E.D. Pa. 2004) (J.P. Morgan Chase, Charles LeCroy, and Anthony C. Snell formed joint-defense relationship; J.P. Morgan produced in response to grand jury subpoena its general counsel’s notes of interviews taken of LeCroy and Snell; court upheld LeCroy’s and Snell’s privilege objections to government’s use of the attorney-notes of interviews taken during the joint-defense relationship; Lecroy and Snell were not bound by J.P. Morgan’s waiver of privilege) Appendix B-2 EXHIBIT A 33 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 29 of 30 Page ID #:24272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Stanley v. Trinchard, 2004 WL 1752221, at *3 (E.D. La. Aug. 3, 2004) (Gary Hale and the St. Tammany Parrish Sheriff’s Office shared joint-defense relationship; bankruptcy trustee served subpoena on Parrish’s counsel (Michele Gaudin) seeking joint-defense communications; court quashed subpoena and issued protective order; held: Parrish not bound by Hale’s waiver of privilege by release of attorney file to bankruptcy trustee) AT&T Corp. v. Microsoft Corp., 2003 WL 21212614, at *7-8 (N.D. Cal. Apr. 18, 2003) (DSP Group, Inc. and Microsoft shared a common-interest relationship; Microsoft put at issue DSP’s discussions with counsel by asserting advice-ofcounsel defense to AT&T’s claims; court denied AT&T’s motion to compel documents from DSP because DSP could not be bound by AT&T’s waiver; DSP had not asserted defense that placed common-interest communications at issue) In re Madison Mgmt. Grp., Inc., 212 B.R. 894, 897-98 (Bankr. N.D. Ill. 1997) (parent and subsidiary corporations shared joint-representation relationship; chapter 7 trustee sought to disclose joint-representation documents to third parties; court refused trustee’s motion to lift protective orders as to the withheld documents; held: the trustee of the subsidiary could not unilaterally waive the privilege and bind the parent corporations to that waiver) In re In-Store Adver. Sec. Litig., 163 F.R.D. 452, 458 (S.D.N.Y. 1995) (corporation and Director Defendants shared joint defense agreement concerning initial public offering; joint-defense documents were transferred to third party; court denied class representatives motion to compel production of joint defense documents, holding that the transfer of documents was in violation of the joint defense agreement and without the Director Defendants’ consent; the Director Defendants were not bound by the waiver) Interfaith Hous. Delaware, Inc. v. Town of Georgetown, 841 F. Supp. 1393, 140102 (D. Del. 1994) (members of Town Council shared joint-defense relationship; Leroy B. Tyndall, a member of the Town Council, testified during deposition without any privilege objection that the Town Council’s challenged decision was based on advice of counsel; Interfaith sought production of joint-defense documents based on Tyndall’s waiver; court denied Interfaith’s motion to compel, finding that other members of the Town Council were not bound by Tyndall’s waiver) 26 27 28 In re Sealed Case, 120 F.R.D. 66, 72 (N.D. Ill. 1988) (parent and subsidiary corporations shared joint-defense relationship; plaintiff-purchaser filed securities fraud lawsuit against parent corporation regarding purchase of subsidiary; Appendix B-3 EXHIBIT A 34 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER Case 2:10-cv-03633-ODW -RZ Document 385 Filed 02/27/12 Page 30 of 30 Page ID #:24273 1 2 3 4 5 6 7 8 9 subsidiary waived any attorney-client privilege or work product interest in favor of disclosure to plaintiff-purchaser; court denied plaintiff-purchaser’s motion to compel; held: subsidiary could not unilaterally waive joint-defense privilege and permit plaintiff-purchaser access to joint-defense documents for use in securities litigation against parent corporation) Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980) (codefendants shared joint-defense agreement; plaintiff claimed settling defendants’ communications with counsel not shielded by joint-defense privilege since documents reflected confidences of only settling defendants; court found settling defendants’ communications were part of joint-defense relationship and settling defendants could not unilaterally waive privilege such that defendants would be bound by waiver) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appendix B-4 EXHIBIT A 35 DC COMICS’ MOT. FOR REVIEW OF MAGISTRATE’S ORDER

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