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

Filing 50

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 supplement record on appeal. Date of service: 06/19/2012. [8219745] [11-55863, 11-56034] (DP)

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EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 WEISSMANN WOLFF BERGMAN COLEMAN GRODIN & EVALL LLP Michael Bergman (SBN 37797) Anjani Mandavia (SBN 940921 9665 Wilshire Boulevard, Nintb Floor Beverly Hi11� California 9021 2 Telephone: j 1 0-858-7888 . 3 1 0-550-71 9 1 Fax: FROSS ZELNICK LEHRMAN & ZISSU, P.C. Roger L. Zissu (Admitted pro hac vice) 866 United Nations Plaza New York, New York 1 0017 Telephone: 2 1 2-8 1 3-5900 2 1 2-813-5901 Fax: PERKINS LAW OFFICE, P.C. Patrick T. Perkins (Admitted pro hac vice) 17 1 1 Route 9D Cold Spring, NY 105 16 Telephone: 845-265-2820 845-265-2 8 1 9 Fax: Attorneys for Defendants and Counterc1aimant UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION JOANNE SIEGEL and LAURA SIEGEL LARSON, Plaintiffs, vs. . TIME WARNER INC., WARNER COMMUNICATIONS INC., WARNER BROS. ENTERTAINMENT INC., WARNER BROS. TELEVISION PRODUCTION INC., DC COMICS, . and DOES 1 - 10, Defendants. 23 Case Nos. [Consolidated for Discovery1 . CV 04- 8400 SGL (RZx) CV 04-8776 SGL (RZx) Hon. Stephen G. Larson, U.S.DJ. Hon. Ralph Zarefsky, U.S.MJ. NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION DISCOVERY MATTER LOCAL RULE 37 24 25 26 27 1--28 AND RELATED COUNTERCLAIMS. 1 0:00 a.ill. Time: Date: April 16, 2007 Courtroom 540 Mag. Judge Ralph Zarefsky Discovery Cutotf: Nov. 17,2006 NOTICE OF MO'nON AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL'fHIRD I'ARTYKEVIN M,IRKS AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 12 -. . 1 2 3 JOINT STIPULATION I. DEFENDANTS' INTRODUCTORY STATEMENT Defendants Warner Bros. Entertainment Inc., Warner Bros. Television 4 Production Inc., Warner Communications Inc., Time Warner Inc., and defendant 5 and counterc1aimant DC Comics (collectively "Defendants") bring this motion to 6 compel answers to certain questions posed to Plaintiffs' prior transactional 7 attorney and to Plaintiff Laura Siegel Larson concerning such attorney's authority 8 to act with respect to the parties' settlement in October 2001 of all of Plaintiffs' 9 claims herein. 10 More specifically, Defendants seek to compel Kevin Marks, the former 11 transactional attorney of Plaintiffs Joanne Siegel and Laura Siegel Larson 12 ("Plaintiffs"), to respond to seven specific questions that Plaintiffs' counsel · 13 prevented Mr. Marks from answering at his deposition by improperly asserting 14 the attorney-client privilege -- questions relating to his authority to act for 15· Plaintiffs in connection with that settlement. . Defendants also request that Ms. 16 Siegel Larson herself be ordered to answer two questions on Mr. Marks' 17 authority which Plaintiffs' counsel similarly prevented her from answering by 18 improperly asserting the attorney-client privilege. These questions to such 19 deponents were narrowly tailored to seek only 20 non-confidential information information that was intended to be communicated to a third party (namely, 21 certain of the Defendants) in conhection with a settlement agreement between 22 Plaintiffs and Defendants and therefore did not qualify for protection under the 23 attorney-client privilege in the first instance. Because the answers to those · 24 questions bear upon Plaintiffs' continued assertion regarding Mr. Marks' 25 authority (or lack thereof) to enter into a settlement agreement on behal f of 26 Plaintiffs, it is critical that Defendants be allowed to re-ask tho'se discreet 27 questions of both witnesses, as well as any reasonable follow-up questions on.. - 28 3 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEJ.THlJ\D PARTY KEVIN.MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 13 1 issues relating to Mr. Marks' authority or regarding communications that :2 Plaintiffs authorized Mr. Marks to make to Defendants. 3 As the Court is aware, defendant DC Comics ("DC") has interposed a 4 counterclaim in these actions, alleging that Plaintiffs had previously fully and 5 finally settled all of the claims which they are purporting to assert here. '(See 6 Bergman Dec!., Ex. A, �� 47-56; Ex. B, �� 41-56.) This Counterclaim alleges 7 that the terms of the parties' settlement were set forth in a letter from Mr. Marks 8 acting as their attorney dated October 1 9, 200 1 . ([4.) Mr. Marks' and Plaintiffs' 9 depositions were taken as a part of Defendants' efforts to establish DC's 10 counterclaim, and to discover the bases for Plaintiffs' stated defenses to that 11 counterclaim. The central seven questions to Mr. Marks and central two 12 questions to Plaintiff Laura Siegel Lars.on at issue in this motion focused on one 13 critical issue: Whether Plaintiffs had in fact authorized Mr. Marks to 14 communicate to DC's attorneys his clients' acceptance of DC's settlement offer 15 of October 1 6 , 200 1 , as specifically represented in Mr. Marks' acceptance letter 16 of October 1 9, 200 1 . Because Plaintiffs' current litigation counsel objected to 17 these questions on the stated basis of the attorney-client privilege, Mr. Marks and 18 Ms. Siegel Larson declined to answer the questions, and Defendants were forced 19 to bring this motion. 20 The only issue presented to the Court in this motion is whether the 21 attorney-client privilege protects communications between a client and an 22 attorney that were intended to be conveyed to a third party. It is evident from the 23 case law that the answer to that question is no - in both a general sense and in the 24 specific context of communications regarding settlement authority. In other 25 words, if a client does not intend a communication to her attorney to remain 26 confidential in the first instance, then that communication cannot be protected by 27 the attorney-client privilege. Under this case law, therefore, Plaintiffs' attorney- 28 client privilege objections should be overruled and Mr. Marks and Ms. Siegel - 4 NOTICE OF MOTION AND JOlNT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD P ARTY KEVIN MARKS, AND PLAINTIFF LAURA SIEGEL LARSON TO ANSwER QUESTIONS AT DEPOSITION EXHIBIT A 14 -" Larson should be required to re-appear for deposition and ordered to respond to 2 the unanswered questions regarding Mr. Marks' settlement authority, along with 3 any reasonable follow-up questions on that issue. 4 II. 5 PLAINTIFFS' INTRODUCTORY STATEMENT Plaintiffs Joanne Siegel and Laura Siegel Larson ("Plaintiffs") are the 6 widow and daughter, respectively, of jerome Siegel ("Siegel"), the co-author of 7 the world renowned comic book hero, "Superman," and the author of 8 "Superboy." This case arises out of Plaintiffs' proper exercise of their right 9 under section 304(c) of the 1 976 United States Copyright Act, 17 U.S.C. § 10 304(c), to recapture Siegel's original copyrights in "Superman" and "Superboy" II by serving statutory notices on the defendants herein ("Defendants") on April 3, 12 1997 and March 8 , 2002, respectively terminating Siegel's prior grant(s) of 13 "Superman" and "Superboy" to Defendants' predecessor(s) (the 14 "Termination(s)"). 15 Plaintiffs' Terminations complied with all the requirements of 1 7 U.S.C. § 16 304(c) and 3 7 C.F.R. § 20 1 . 1 0, the regulations promulgated thereunder by the 17 Register of Copyrights. Accordingly, on April 16, 1999, the noticed "Superman" 18 termination date, all rights Siegel conveyed in "Superman" to Defendants' 19 predecessors duly reverted to Plaintiffs. On November 1 7 , 2004, the noticed 20 "Superboy" Termination date, all rights that Siegel had conveyed in "Superboy" 21 to Defendants' predecessors duly reverted to Plaintiffs. 22 Shortly after Plaintiffs served their "Superman" Termination notices the 23 general counsel of Defendant Warner Bros. Entertainment Inc. ("WB") and the 24 President of Defendant DC Comics ("DC") both acknowledged the validity of the 25 "Superman" Termination and the parties began negotiations for Defendants' 26 1icensing of the Plaintiffs' recaptured copyright interests. By October 19, 200 I , 27 Plaintiffs believed that the parties had agreed on certain deal points, subject, of 28 course, to their proper articulation in an acceptable written agreement; however, - 5 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 15 I it soon became apparent from October 26, 200 I correspondence from 2 Defendants, setting forth different terms and a different understanding, that this 3 was 4 Defendants unilaterally modified the terms in a very one-sided fashion and added 5 aggressive new terms, both of which were completely unacceptable to Plaintiffs. 6 Consequently, no agreement was made or executed by the parties. not the case. Ultimately, negotiations broke down by early 2002 when Defendants neither claimed that a supposed settlement agreement had been. 7 8 entered into, nor attempted to perform or tender performance under any such 9 purported agreement. Plaintiffs commenced the within declaratory relief actions regarding the 10 11 validity and effect of the "Superman" and "Superboy" Terminations on October 12 8, 2004 and October 22, 2004, respectively . . In their answers and counterclaims 13 Defendants asserted for the very first time that they had purchased Plaintiffs' 14 recaptured copyright interests years earlier pursuant to a purported "settlement 15 agreement," even though it was clear from the record and the parties' conduct 16 that no such agreement had ever been consummated. In pursuit of their purported settlement defense, Defendants now seek to 17 18 retake the deposition of Plaintiffs' former transactional attorney Kevin Marks 19 ("Marks"), and/ 20 Plaintiff Laura Siegel Larson on the erroneous basis that both individuals must 21 answer further questions 22 October 19, 2001 letter. Defendants ' motion is marred by a complete failure to 23 provide supporting case law and willful blindness towards the fact that the 24 information purportedly sought by Defendants has already been provided to 25 them. 26 or the second time improperly move to retake the deposition of "regarding' Marks' settlement authority to send an The purported question of authority is plainly a red-herring used by 27 Defendants in an ongoing attempt to invade the protected sanctum of the 28 attorney-client relationship, and improperly reargue issues previously raised in - 6 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 16 1 violation of the Central District's Local Rule 7-18. There is no question that 2 Marks had authority as Plaintiffs' representative to conduct settlement 3 negotiations with Defendants. This does not mean, however, that the content of 4 Plaintiffs' privileged communications with Marks regarding such negotiations 5 Jose their protected status. 6 ID. DEFENDANTS' CONTENTIONS 7 A. 8 As this Court is aware from prior briefings in this matter, DC has asserted 9 counterclaims against Plaintiffs seeking to enforce a 200I settlement agreement The Relevant B�round 10 that Defendants allege resolved all claims between the parties with respect to II Plaintiffs' purported right to recapture their copyright interests in the Superman 12 and/or Superboy property. (See Bergman Decl., Ex. A, �� 47-56; Ex. B, �� 47- 13 56.) In response, Plaintiffs have asserted that no settlement was reached, and 14 have interposed, inter alia, the affirmative defense that the settlement agreement 15 was beyond the authority of P laintiffs' attorneys at the time, namely Mr. Marks. 16 (See Bergman Decl., Ex. C, � 183 ("Plaintiffs' attorneys lacked authority and/or 17 exceeded the scope of their authority with respect to the purported settlel'i1ent 18 agreement alleged by counterclaimant."); Ex. D, � 177 (same).) Accordingly, 19 part of Defendants' discovery efforts have focused on learning the facts behind 20 the parties' apparent settlement, the reasons Plaintiffs walked away from the 21 settlement that Mr. Marks acknowledged in his October 19, 2001 letter to DC's 22 counsel, and the basis for Plaintiffs' contention that Mr. Marks did not have 23 authority to enter into that settlement in the first instance, 24 Mr. Marks' deposition was taken by Defendants on October 7, 2006. 25 During that deposition, Mr. Marks testified that his law firm. Gang, Tyre, Ramer 26 & Brown ("Gang Tyre"), was hired by Plaintiffs in early 1999 to represent them 27 in negotiating an agreement with DC regarding the Superman property. 28 (Bergman Decl., Ex. E, Marks Dep. at 21:14 - 22:9.) Mr. Marks was the -- 7 NOTICE OF MOTfON ANDJOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 17 1 Plaintiffs' principal representative at Gang Tyre in these negotiations. (Jd., 2 MarksDep. at 24:15 - 25:10.) The negotiations culminated in October, 2001, 3 foIlowing extensive discussions between the parties over the course of the prior 4 few years. Specifically, Mr. Marks testified that on October 16,2001, he had a .5 telephone conversation withDC's representative, John Schulman, at which time· 6 the parties resolved the outstanding issues between them. (Jd., MarksDep. at 7 132:11-134:11.) 8 On October 19, 2001, Mr. Marks sent a letter to Mr. Schulman specifically 9 stating that "The Siegel Family (through Joanne Siegel and Laura Siegel Larson, the majority owners of the terminated copyright interests) has accepted D.C. 10 11 . Comics offer o October 16, 200lin respect o the 'Superman' and 'Spectre' f f 12 properties." (BergmanDecl., Ex. E; emphasis added.) That letter described the 13 material terms of the settlement agreement between the Siegels andDC, which 14 terms had been finalized and resolved in the October 16, 2001 telephone 15 conference between Mr. Marks and Mr. Schulman. (BergmanDecl., Ex. E, 16 MarksDep.at 132:l l - l 34:l l .) 17 18 The parties exchanged correspondence thereafter, and a draft long-form agreement was sent byDC's counsel to Mr. Marks in February, 2002. (B.ergman 19 Decl., Ex. G.) No long form agreement was ever finalized or executed, however, 20 and Mr. Marks' and Gang Tyre's representation of Plaintiffs was terminated in 21 September, 2002. (BergmanDecl., Ex. H.) 22 Plaintiff Laura Siegel Larson's deposition was taken byDefendants earlier 23 on August 1, 2006, and Plaintiff Joanne Siegel's deposition took place on August 24 2. During those depositions,Defendants similarly sought to inquire into, among 25 other things, the authority of Plaintiffs' former counsel, Mr. Marks, to send the 26 October 19, 2001 settlement letter. Laura Siegel Larson testified that Plaintiffs 27 saw Mr. Marks' October 19, 2001 settlement letter on or about or shortly aftetit . 28 was sent toDefendants but that instead of it saying the Siegels "acceptedD.C. S NOTICE OF MOTION AND 10lNT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 18 " Comics offer of October 16, 2001, Mr. Marks' letter was meant to mean or 2 should have said Plaintiffs only "conditionally approved" the deal points stated 3 therein. (BergmanDecl., Ex. I, Siegd LarsonDep. Tr. at 125: I - 126:3.) 4 In connection to an earlier motion ofDefendants seeking to compel 5 Plaintiffs to produce documents as to which Plaintiffs asserted the attorney-client 6 privilege concerning the parties' settlement negotiations in 200 I, the Court 7 decided that there had been no waiver of privilege as to Plaintiffs' 8 communications with Mr. Marks by reason of Plaintiffs' denial ofDefendants' 9 request to admit that Mr. Marks was authorized to send the above-noted October 10 19, 200 I letter. (BergmanDecl., Ex. J.) WhenDefendants moved for 11 reconsideration on the basis that Plaintiffs had waived any privilege with. respect 12 to these documents in pleading their affirmative defense that Mr. Marks' letter 13 was beyond his authority (See BergmanDecl., Ex. C, � 183; Ex.D, � 177), the 14 Court declined to reconsider its prior ruling, inter alia, in view of what it 15 considered inadequate exploration of the effect onDefendants request for relief 16 of the assertion in opposition by Plaintiffs' counsel that Plaintiffs intended to 17 withdraw this affirmative defense. (BergmanDecl., Ex. K at 2). However, 18 Plaintiffs have never withdrawn this defense. 19 Throughout both of the depositions ofPlaintiffs, Plaintiffs' counsel 20 instructed them not to answer many questions on the basis of the attorney-client 21 privilege, including those at issue here concerning Ms. Marks' settlement 22 authority. 23 Plaintiffs have taken the position in this litigation that no settlement was 24 reached withDC in October, 200 I, or at any time. Plaintiffs have also taken the 25 .position that the subsequent communications and dealings between the parties 26 establish that no such agreement was extant. But while the parties have differing 27 interpretations and arguments about the course of their dealings, and the impact 28 of their subsequent actions on the formation or enforceability of an agreement, 9 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 19 I the sole issue on which this motion is focused is whether Plaintiffs authoriz.ed 2 Mr. Marks to send his October 19, 2001 communication toDC's representatives 3 acceptingDC's settlement offer. 4 5 B. The Dellosition Questions at Issue 1. Questions Not Answered By Mr. Marks 6 Mr. Marks' deposition was taken by counsel forDefendants, Michael 7 Bergman. Mr. Marks waS represented at deposition by Marc Mannaro, and 8 Plaintiffs were represented by Marc Toberoff. Although Mr. Marks answered a 9 number of questions about Gang Tyre's and Mr. Marks' representation of 10 Plaintiffs, including questions about the initiation and tennination of the attorney- 11 client relationship and the parties' settlement negotiations, he refused upon Mr. 12 Toberoffs objection to answer questions regarding whether his clients, Joanne 13 and Laura Siegel Larson, had authorized him to communicate their acceptance of 14 DC's settlement offer- as expressly stated in his October 19, 2001 letter- and 15 whether they imposed any limitations or conditions on his settlement authority 16 that Mr. Marks should have conveyed toDC. 17 That line of inquiry comprised seven separate questions. As to each of 18 those questions, Plaintiffs' counsel, Marc Toberoff, invoked the attorney client - 19 privilege. Deferring to Mr. Toberoffs privilege objections, Mr. Marks' counsel, 20 Mr. Mannaro, instructed him not to answer. Defendants contend that the 21 objections were improper, and that Mr. Marks should have answered the 22 questions as posed. Those seven questions, along with. the corresponding 23 colloquy between Plaintiffs' counsel,Defendants' counsel, and Mr. Marks' 24 counsel, follow: 25 [MR. BERGMAN]: The next sentence of the letter states, quote 26 "the Siegel family (through Joanne Siegel and Laura Siegel 27 Larson, the majority owners of the tenninated copyright interests) 28 10 NOTICE O F MOTION AND JOINT STIPULATION RE; DEFENDANTS' MOTION T O COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 20 .. I has acceptedDC Comics' offer of October 16, 200 I , in respect of 2 the Supennan and Spectre properties," close quote. Prior to the time, Mr. Marks, that you sent this letter to Mr. 3 4 Schulman, had Laura and [Joanne] authorized you to 5 communicate to John Schulman the fact, as you state in your 6 letter, that, quote, the Siegel family through Joanne Siegel and 7 Laura Siegel Larson, the majority owners of the terminated 8 copyright interests, has acceptedDC Comics's offer of October 9 16,2001? 10 MR. MARMARO: Because you framed the question in terms of II calling for a communication between Mr. Marks and his clients, 12 I'm just going to ask Mr. Toberoff if he has any objection . . 13 MR TOBEROFF: The way you phrased that, you're asking for -. 14 directly asking for a communication from a client to Mr. Marks. I5 MR BERGMAN: What I'm asking for, gentlemen, is what the 16 cases say is clearly not privileged. I'm asking. whether the Siegels . 17 . told Mr. Marks to communicate a certain fact to Mr. Schulman .. 18 That is simply not privileged. It was intended to be 19 communicated, and therefore it is not privileged, and I am going 20 to -- I am very conscious of the attorney-client privilege, Mr. 21 Toberoff. I've couched that question very carefully, and I urge 22 you gentlemen to consider it, because I can give you a half dozen 23 cases that say that communication was never privileged. 24 [Discussion of applicable case law.] 25 MR TOBEROFF: This falls within the privilege, and I don't 26 believe those cases - and I believe if I got into those cases and a 27 lineage of those cases, that would bear out the objection. If you . 28 11 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 21 .. 1 want to ask the question some other way, but that question I ·2 would assert the attorney-client privilege. 3 MR MARMARO: Based on that position, we have no choice but 4 to object and instruct, but I want to make sure it's real clear. Mr. 5 Marks is not the holder of that privilege and has no power to 6 waive it. The privilege has been asserted by the current counsel 7 for the client, and I feel that he has no choice but to agree at this 8 point to not answer that question on that basis. 9 . (BergmanDecl. Ex. E, MarksDep. Tr. at 135:17 - 139:1.) 10 Q; Between October 16, and October 19, did Joanne and Laura 11 Siegel authorize you to communicate to John Schulman that, 12 quote, the Siegel family through Joanne Siegel and Laura Siegel 13 Larson, the majority owners of the terminated copYright interests, 14 has acceptedDC Comics's offer of October 16, 2001? 15 MR MARMARO: Again, I'm going to have to ask Mr. Toberoff 16 whether he wishes Mr. Marks not to answer that question. 17 MR. TOBEROFF: I hate to just repeat it. It's the same question: 18 The same objection. 19 MR MARMARO: Based on that, I will also object and instruct 20 him-- 21 MR. BERGMAN: Okay. 22 MR. MARMARO: -- with the same statement that I made before . 23 24 MR. BERGMAN: I understand. 25 MR. MARMARO: -- which is we are not of the holder of a 26 claimed privilege. 27 (BergmanDecl., Ex E, Marks Dep. Tr. at 140:21 - 141:14.) 28 ---- . 12 HIRD.PARTY KEVIN MARKS. NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL T AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONSAT DEPOSITION EXHIBIT A 22 1 Q: 2 clients instruct you to convey to Mr. Schulman any additional 3 terms other than those set forth in your October 19 letter to Mr. 4 Schulman upon which their acceptance of the October 16th offer 5 was conditioned? 6 MR TOBEROFF: Objection. Vague and ambiguous as to what 7 is the October 16th offer, and attorney-client privileged 8 corninunication as to the instructions from the client. 9 MR. MARMARO: And based on that objection, we also object 10 II Between October 16 and October 19, Mr. Marks, did your . and instruct. (Jd., MarksDep. Tr. at 141:17 -142:2.) 12 Q: Between October 16 and 19 did Laura Siegel and Joanne 13 Siegel instruct you to convey to Mr. Schulman any limitations 14 other than those set forth in your October 19 letter to Mr. 15 Schulman upon which their acceptance of the October 16 offer 16 was conditioned? 17 MR TOBEROFF: Same objections. 18 MR MARMARO: For the same reasons I'll join in those 19 objections and instruct. 20 (Id., MarksDep. Tr. at 142:5 - 142:12.) . . 21 Q: Between October 16 and October 19 did your clients instruct 22 you to convey to Mr. Schulman any conditions subsequent, other 23 than those set forth in your October 19 letter to Mr. Schulman, 24 upon the occurrence of which acceptance of the October 16 offer 25 would be negated? 26 MR TOBEROFF: Same objection, and I will add vague and 27 ambiguous and compound. . 28 - 13 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION T O COMPEL THIRD PARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 23 1 MR. MARMARO: It also calls for a legal conclusion, but based 2 on the objections, which I understand include the attorney-client 3 privilege being asserted by the holder -- counsel for the holder of 4 the privilege, I'll object and instruct. (Bergman Decl, Ex. E, MarksDep. Tr. at 142:15 -143:2.) 5 Okay. Had you in fact been authorized to accept the October 6 Q: 7 16 offer? 8 MR. TOBEROFF: Objection -- 9 MR. MARMARO: On the basis of privilege? 10 MR. TOBEROFF: Yes. And same objections as to the word 11 "offer." Vague and ambiguous. 12 MR. MARMARO: And calls for a legal conclusion. And then 13 based on Mr. Toberoffs privilege objection, I will also object and 14 instruct on that ground. 15 . (Id., MarksDep. Tr. at 146:6 - 146:14.) Prior to sending this letter, had you been authorized by your '16 Q: 17 clients to communicate their acceptance of the October 16, 2001 18 offer? 19 MR. TOBEROFF: Same objection. Asked and answered. Same 20 objection. Vague and ambiguous. Attorney-client privilege -- 21 MR. MARMARO: Based-- 22 . MR. TOBEROFF: -- it calls for a legal conclusion. 23 MR. MARMARO: Baseo on that, we will also object, and I will 24 instruct. 25 26 (Id., MarksDep. Tr. at 146:21 - 147:6.) In response to Mr. Toberoff's initial attorney-client privilege objection to 27 the line of questioning described above, Mr. Bergman provided counsel with 28 citations to cases standing for the proposition that communications between an _ . - 14 NonCE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEvIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 24 I attorney and client that are intended to be communicated to a third party are not 2 protected by the attorney client privilege. (BergmanDec!, Ex. E, MarksDep. at - 3 1 36: 12 - 138:5.) Nonetheless, Mr. Toberoff stood by his privilege assertions, 4 which Mr. Marks' attorney Mr. Marmaro followed, and Mr. Bergman concluded 5 the deposition with his authority questions left unanswered. 6 2. 7· Plaintiff Laura Siegel Larson's deposition was taken by counsel for Q uestions Not Answered by Plaintiff Laura Siegel Larson 8 Defendants, Roger L. Zissu. Plaintiffs were represented by Marc Toberoff. Although Ms. Siegel answered a number of questions about Gang Tyre's and Mr. 9 Marks' representation of Plaintiffs, including questions abQut the initiation and 10 II . termination of the attorney-client relationship and the parties' settlement 12 negotiations, she refused upon Mr. Toberoffs objection to answer questions 13 regarding whether she and her mother Joanne Siegel, had authorized Mr. Marks 14 to communicate their acceptance ofDC's settlement offer � as expressly stated in 15 his October 1 9, 200 I letter - and whether they, in fact, imposed on him any 16 limitations or conditionS on his settlement authority that Mr. Marks did or should 17 have conveyed toDC. 18 That line of inquiry included two separate questions at issue here 19 concerning the acceptance ofDefendants' offer confirmed in the October 19, . 20 2001 letter. As to each of those questions, Plaintiffs' counsel, Marc Toberoff, 2I invoked the attorney-client privilege and instructed the witness not to answer. . 22 Ms. Siegel followed these instructions.Defendants contend that the objections 23 were improper, and that Ms. Siegel should have answered the questions as posed. 24 Those two questions and Mr. Toberoffs instructions follow: 25 Q: Did you ever object to the - to Kevin Marks or tellDC Comics that 26 you didn't approve the language in the letter? 27 A: I - that actually - 28 15 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD ?ARTY KEVIN MARKS. AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 25 I MR. TOBEROFF: You can't say V\lhether you objected to Kevin Marks 2 or not. 3 THE WITNESS: No. I was just going to say that's calling for me to 4 discuss a private 'conversation that I had with my attorney. 5 (Bergman Dec!., Ex. I, Siegel LarsonDep. Tr. at 128:3- I I .) 6, Q: Did you ever instruct Mr'-Marks to communicate to the lawyers for 7 DC Comics that there should be a correction made in his letter? 8 MR. TOBEROFF: Objection. Attorney-client-privilege� Instruct you 9 not to answer. 10 II (Id., SiegeI LarsonDep. Tr.at 129:17-22.) Notwithstanding the colloquy ofDefendants' counsel with Plaintiffs' 12 counsel at various points throughout the Plaintiffs' depositions in an attempt to 13 have him withdraw such instructions not to respond, Mr. Toberoff stood by his ' 14 privilege instructions, which the witness followed, and Mr. Zissu concluded the 15 deposition with these authority questions left unanswered. Compliance with Local Rule 37-1 16 C. 17 Defendants initiated the joint stipulation process with respect to Mr. 18 Marks' deposition testimony on October 13, 2006 by sending Plaintiffs' attorney 19 a letter requesting a conference of counsel pursuant to Local Rule 37-1. 20 (BergmanDec!., Ex. L.) Defendants earlier initiated the joint stipulation process 21 with respect to Ms. Laura Siegel Larson's refusals to answer on August 3 1, 2006 22 by sending Plaintiffs' attorney a letter requesting a conference of counsel 23 pursuant to Local Rule 37- I . (WeinbergerDecl., Ex. A.) Counsel subsequently ' 24 conducted conferences addressing the issues raised in such meet and confer 25 ' letters, namely, Mr. Toberoff's improper assertions of attorney-client privilege 26 objections to the questions listed above. (BergmanDec!., � 2; WeinbergerDecl., 27 � 2.) However, the parties were unable to resolve their disputes. 28 - 16 NOTICE O F MOTION AND lorNT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEvIN MARKS , AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 26 D. Ar1!Ument 1. 2 Plaintiffs' Privilege Objections Are Improper For the reasons set forth herein, Defendants submit that the Court should 3 4 overrule Plaintiffs' privilege objections to the seven disputed questions to Mr. 5 Marks and to the two disputed questions to Ms. Siegel Larson and compel such 6 deponents to reappear for deposition to answer those questions and any 7 8 . reasonably related follow up questions on issues concernmg his settlement authority or other cotnmunications Plaintiffs authorized Mr. Marks to make to 9 Defendants. 10 Although an instruction not to answer on the basis of the alleged II irrelevance of a question is prohibited by Rule 30(d)(l ) of the Federal Rules of · 12 Civil Procedure, the standards for permissible discovery are broad. Federal Rule 13 of Civil Procedure 26 "contemplates discovery into any matter that bears on or 14 that reasonably could lead to other matter that could bear on any issue that is or 15 may be raised in a case." Board of Trustees o the Leland Stanf Junior f ord 16 University v. Roche Molecular S Inc., 2006 U.S.Dist. LEXIS 53187 at *8 ys., 17 (N. . Cal. Aug. 1, 2006). There is no doubt that the deposition questions at issue D 18 . call for information thilt falls within the broad scope of discovery provided for 19 under Rule 26; indeed, the settlement issue is directly implicated by the pleadings 20 of both· parties. (see Bergman Dec!., Exs. AD.) The question presented to this 2I Court, however, is whether the testimony requested in those seven questions to 22 Mr. Marks and two questions to Plaintiff Laura Siegel Larson may be shielded 23 from discovery by the attorney-client privilege. 24 Plaintiffs, as the party asserting the attorney client privilege, have the - 25 burden of persuading the Court that it should apply. Id. at * 9 ("In determining 26 whether disclosure of privileged communications is required, the burden of 27 persuasion rests on the party claiming the privilege."); see also United States v. 28 Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002) ("The burden is on the party - 17 NOTICE OF MOTION AND JOINT STJPULATION RE: DEFENDANTS ' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 27 ' I asserting the privilege to establish all the elements of the privilege."); In re 2 Napster, Inc. Copyright Litigation, 2005 U.S. Dist. LEXIS 1 1497 at *9 (N.D. 3 Cal. Apr. 12, 2005) ("because evidentiary privileges 'impede the full and fair 4 discovery of truth,' the attorney-client privilege is 'strictly construed,' and the 5 party claiming the privilege bears the burden of establishing its claim."). 6 To establish that the attorney-client privilege applies, a party must 7 demonstrate, among other things, that she had a confidential communication with 8 her attorney. See Kintera, Inc. v. Convio, Inc. , 2 1 9 F.R.D. 503, 508 (S.D. Cal. 9 2003) ("The attorney-client privilege attaches to '(1) communications (2) made in 10 confidence (3) by the client (4) in the course of seeking legal advice (5) from a 1I lawyer in his capacity as such, and applies only (6) when invoked by the client · 12 and (7) is not waived."') (citing United States v. Abrahams, 905 F.2d 1 276, 1283 . 13 (9th Cir. 1990» , Under this standard, information that a client does not intend to 14 remain confidential is not privileged in the first instance. Grand Lake Drive In, 1 5 · Inc. v. Superior Court, 1 79 Cal. App. 2d 1 22, 1 25 (Cal. Ct. App. 1 960) ("When 16 the client does not intend his communication to be confidential, it is not 17 privileged."); Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995) ("[Clourts 18 have consistently refused to apply the privilege to information that the client I9 intends or understands may be conveyed to others."); GTE Directories Service, 20 Corp. v. Pacific Bell Directory, 1 35 F.R.D. 1 87, 191 (N.D. Cal. I 99 1 ) ("It is 2I axiomatic that no privilege can attach to a communication that was not intended 22 to be confidentiaL"). 23 Statements a client makes to her attorney regarding the attorney's authority 24 to settle, like those at issue in this motion, present a paradigmatic example of 25 communications that were never intended to remain confidential. After all, an 26 attorney cannot effectively negotiate or settle a matter on behalf of his clients 27 without communicating his clients' wishes to the attorney on the other side ofthe 28 negotiations. Accordingly, a number of courts have held that communications 18 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DI!POSITION EXHIBIT A 28 1 between a client and an attorney regarding the attorney's settlemenfauthority are 2 not privileged. See, e.g., Willard C. Beach Air Brush Co. v. General Motors 3 Corp., 1 18 F. Supp. 242, 244 (D.N.J. 1 953) (privilege does not extend to "the 4 client's grant of authority to the attorney to settle, since this must be 5 communicated to the other party to the settlementand is thus not confidential"); 6 Peters v. Wallach, 32 1 N.E.2d 806, 809 (Mass. 1 975) ("The client's grant of 7 authority to settle must be communicated to the other party to the settlement and 8 is thus not confidential."); Walsh v. Barcelona Assoc., Inc. , 476 N.E. 2d l 090, 9 1 093 (Ohio App. 1 984) ("By its very nature, a communication from a client to his 10 attorney conveying authority to the attorney to act on his behalf as his agent in 11 entering into an agreement with the opposing party, is a communication which is 12 intended to be communicated to the opposing party. Because such a conversation 13 is not intended to be confidential, it is not privileged."). 14 The case of Diversified Development & Investment, Inc. v. Heil, 889 P. 2d 15 1 2 1 2 (N. Mex. 1 995) applied these principles in a situation similar to the one 16 presented to this Court. In Diversified, plaintiff had an option to purchase certain 17 real estate owned by defendant Estate. Shortly before the expiration of the option 18 period, plaintiff sought to negotiate a financing modification, but requested an 19 extension to exercise the option under the existing terms in case the modification 20 negotiations were not fruitful. During those negotiations, Hurley, the Estate's 21 attorney, assured plaintiff that it could exercise the original purchase option if the 22 Estate did not agree to the financing modifications, even though the option period 23 had already expired by that time. When the talks broke down, the Estate took the 24 position that the option had expired, and refused to accept plaintiff s tender. 25 In the subsequent litigation, plaintiff sought to discover "the instructions 26 given to Hurley by the Estate and the nature and scope of his authority in regard 27 to the purchase option deadline." Diversified Development, 889 P. 2d at J 2 1 8. 28 That information included "memos written by Hurley detailing his conversations · - - 19 NOTICE O F MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 29 1 with [the Estate] about the [] extension request" and "withheld portions of [the 2 Estate representative's] diary detailing conversations with [the Estate's real estate 3 agent] and Hurley." Id. at 1 2 16. The court analyzed the issue and cited the rule 4 that "Courts have held that the attorney-client privilege does not protect the 5 instructions or authority given by the client to his attorney." Id. at 1218 (citations 6 and internal quotations omitted). The rationale for that rule, the court explained, 7 is that "the client's grant of authority to the attorney to settle is not protected by 8 the attorney-client privilege since this must be communicated to the other party to 9 the settlement." Id. (citations and internal quotations omitted). The court 10 concluded that "the attorney-client privilege does not prohibit Hurley from II disclosing what the Estate authorized him to agree upon with or communicate to 12 Diversified Development." Id. The court also ruled that the trial court had erred 13 by exclucling Hurley's memorandum and the representative's telephone 14 conversations with Hurley: "The court should have examined those documents 15 and allowed Diversified Development to discover those portions detailing the 16 Estate's instructions to Hurley and the scope of his authority i n connection with 17 the extension cif the option deadline." Id. The same rationale applies here. The questions at issue in this motion to 18 19 Mr. Marks all called for him to reveal information regarding Mr. Marks' 20 settlement authority that was intended to be communicated to defendants: 2I • "Prior to the time, Mr. Marks, that you sent this [October 1 9, 200 I ] letter 22 to Mr. Schulman, had Laura and [Joanne] authorized you to 23 communicate to John Schulman 24 quote, the Siegel family through Joanne Siegel and Laura Siegel Larson, 25 the majority owners of the terminated copyright interests, has accepted DC 26 Comics's offer of October 16, 200 1 ?" (Bergman Decl., Ex. E, Marks Dep. 27 at 1 35 :23 - 136:4) (emphasis added); the fact, as you state in your letter that, 28 20 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAlNTIFF LAURA SIEGEL LARSON TC ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 30 1 • "Between October 1 6, and October 1 9, did Joanne alld Laura Siegel 2 authorize you to communicate to John Schulman 3 other than those setforth in your October 1 9 letter to Mr. Schulman upon 4 which their acceptance of the October 16th offer was conditioned?" (Id. , 5 Marks Dep. at 140:21 - 1 4 1 : 1 ) (emphasis added); 6 • any additional tenns "Between October 1 6 and October 1 9, l\1r. Marks, did your clients instruct 7 y you to conve to Mr. Schulman 8 forth in your October 1 9 letter to Mr. Schulman upon which their 9 acceptance of the October 1 6th offer was conditioned?" (Id., Marks Dep. at 141 : 1 7 - 1 4 1 : 2 1 ) (emphasis added); 10 11 any additional tenns other than those set • "Between October 16 and 1 9 did Laura Siegel and Joanne Siegel instruct any limitations other than those set forth 12 you to convey to Mr. Schulman 13 in your October 1 9 letter to Mr. Schulman upon which their acceptance Clf 14 the October 1 6 offer was conditioned?" (Id. , Marks Dep. at 142:5 - 142:9) 15 (emphasis added); 16 • "Between October 1 6 and October 1 9 didyour clients instruct you to any conditions subsequent, other than those set 17 convey to Mr. Schulman 18 forth in your October 1 9 letter to l\1r. Schulman, upon the occurrence of 19 which acceptance of the October 1 6 offer would be negated?" (Id. , Marks 20 Dep. at 142 : 1 5 - 142:20) (emphasis added); 21 • (Id. , Marks Dep. at 146:6 - 146:7) (emphasis added); 22 23 "Okay. Had you in f been authorized to accept the October1 6 o er?" act ff • "Prior to sending the letter, had you been authorized by your clients to 1 6, 200 1 offer?" (Id. , Marks 24 communicate their acce ptance of the October 25 Dep. at 146:21 - 146:23) (emphasis added). 26 Similarly, the questions at issue in this motion to Ms. Laura Siegel Larson 27 all call for her to reveal infonnation regarding Mr. Marks' settlement authority 28 that was intended to be communicated to def endants: -- 21 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 31 1 • "Did you ever ob ject to the - 2 language in the letter?" 3 to Kevin Marks that you didn 'l approve the 1 28:3-1 1 ) (emphasis added); 4 • (Bergman Decl., Ex. I, Siegel Larson Dep. at "Did you ever instruCt Mr. Marks to communicate to the lawyers f DC or a correction made in his letter?" (Id. , Siegel 5 Comics that there should be 6 Larson Dep. at 1 29:1 7�22) (emphasis added). 7 As the bolded language demonstrates, counsel for Defendants never asked 8 Mr. Marks. or Ms. Siegel Larson to reveal communications that were intended to 9 remain confidential. In fact, Ms. Siegel Larson previously testified that Plaintiffs 10 had instructed Mr. Marks to communicate certain conditions to defendants: 11 Q: And [Mr. MarksJ should have told DC Comics, according to what 12 you're testifying, that these deal points were accepted on the 13 conditions you'vejust testified to? 14 A: Yes. 15 (Id., Siegel Larson Dep. at 133: I - 1 33:4.) Further, Plaintiffs have expressly put 16 at issue the question of Mr. Marks' settlement authority, by interposing the 17 affirmative defense that he had exceeded his authority in his dealings with 18 Defendants. It is impossible to test that defense without learning what Mr. Marks 19 was authorized to do and to communicate. Therefore, and under the holding of 20 Diversified Development and the other authority cited herein, Mr. Toberoffs 21 objections to these questions based upon the attorney-client privilege were 22 improper, and Mr. Marks and Ms. Siegel Larson should have been allowed to 23 answer the questions as posed. 24 25 26 27 2� Even if Plaintiffs Properly Asserted the Privilege With Respect to Mr. Marks'. Authority, The Privilege Has Been Waived by Virtue of Plaintiffs' Having Affirmatively Placed the Matter in Issue by Pleading their Anthority Defense. 28 22 NOTICE OF MOTION AND JOINT STIPULATiON RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 32 Even if the Court determines that Plaintiffs were to have properly asserted I 2 attorney-client privilege instructions to the seven questions posed to Mr. Marks 3 and the two questions to Ms. Siegel Larson at issue on this motion, both 4 witnesses should nonetheless be made to reappear for deposition to answer those. 5 questions on the ground that the privilege, if any exists, has been waived. In their replies to Defendant DC's amended counterclaims Plaintiffs raise 6 7 following affirmative defense: "Plaintiffs' attorneys lacked authority and/or 8 exceeded the scope of their authority with respect to the purported settlement 9 agreement alleged by counterclaimant." (Bergman Decl., Ex. C, � 1 83 ; Ex. D, � 10 1 77.) As this Court has already held, "[t]he privilege may be impliedly waived II where a party to a lawsuit places into issue a matter that it is normally privileged, I2 if the gravamen of the lawsuit is so inconsistent with the continued assertion of I3 the privilege so as to compel the conclusion that the privilege has in fact been 1 4 waived. ." (Bergman Decl., Ex. J at 2 (citing Wilson v. Superior Court, 63 Cal. 1 5 App.3d 825, 1 34 Cal. Rpti:. 1 30 (1 976).). 1 Plaintiffs .have expressly and 16 unequivocally pleaded their prior counsel's lack of authority in response to DC 17 Comics' counterclaims, and thus "affirmatively plac[ed] the matter in issue" (id. 18 at 3). That is, by their pleading, Plaintiffs have waived the privilege. See Wilson 19 v. 20 Superior Court, 63 Cal. App.3d 8 1 5, 1 34 Cal. Rptr. 1 3 0 (1 976). * * * 21 Accordingly, whether by virtue of the fact o f their improper privilege 22 instructions or, in the alternative, a waiver of privilege, Mr. Marks and Ms. Siegel 23 Larson should be ordered to reappear for deposition and answer the questions 24 identified in this motion, as weIl as all reasonable foIlow up questions relating to 25 26 27 28 I On the prior motion cited here, thejJarties mistakenly contended that Plaintiffs had not in fact pled the authority def ense. When Defendants moved for reconsideration of the Court's order in light of this inadvertent error, the Court denied tpe motion, invited the partie� to meet and confer anew and, If necessary, .seek relief from the Court after that time. (Bergman Decl., Ex. K at 2.) . Defendants are doing so here. _ 23 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO COMPEL THIRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 33 1 Mr. Marks' settlement authority and other communications that Plaintiffs 2 authorized Mr. Marks to make to Defendants. 3 IV. PLAINTIFFS' CONTENTIONS 4 A. 5 Plaintiffs Joanne Siegel and Laura Siegel Larson ("Plaintiffs") termination FACTUAL AND PROCEDURAL BACKGROUND 6 notices regarding "Superman" and "Superboy" complied with all the 7 requirements of 1 7 U.S.C. § 304(c) and 37 C.F.R. § 201 . 1 0, the regulations 8 promulgated by the Register of Copyrights. Shortly after Plaintiffs served their 9 "Superman" termination notices the General Counsel of Defendant Warner Bros. 10 Entertainment Inc. ("WB") and the President of its sister company, Defendant 11 DC Comics ("DC"), both acknowledged the validity of the "Superman" 12 termination and the parties began negotiations for Defendants' licensing of 13 Plaintiffs' recaptured copyright interests. (SeePlaintiffs' FirstAmended 14 Supplemental Complaint in Case No. 04-8400 ("FASC"), �� 46-48, Declaration 15 of Marc Toberoff ("ToberoffDec!."), Ex. B submitted herewith). These 16 negotiations were led by WB' s General Counsel, John Schulman ("Schulman"), 17 on behalf of the Defendants, and by attorney Kevin Marks ("Marks"), on behalf 18 of Plaintiffs. 19 As set forth in an October 1 9, 2001 letter from Marks to Schulman (the 20 "October 1 9, 2001 Letter") it appeared that the parties had approved certain basic 21 deal points subject to their articulation in an acceptable written agreement. 22 (Declaration of Michael Bergman ("Bergman Dec!.") submitted herewith, Ex. F). 23 However, a reply letter from Schulman to Marks dated October 26, 200 1 (the 24 "October 26, 2001 Letter"), conveniently omitted in Defendants' portion of this 25 joint stipulation, evidences that no such accord had in fact been reached and that 26 the parties' understanding differed in several key respects. (ToberoffDec!., Ex. 27 A)("I enclose herewith for you and Bruce a more fulsome outline of what we 28 believe the deal we've agreed to is") . . These material differences were greatly ' - ' 24 NOTICE OF MOTION AND JOINT STIPULATION RE: DEFENDANTS' MOTION TO.COMPEL 1}!IRD PARTY KEVIN MARKS . AND PLAINTIFF LAURA SIEGEL LARSON TO ANSWER QUESTIONS AT DEPOSITION EXHIBIT A 34 1 Respectfully submitted, 2 DATED: Marclbt? 2007 .3 FROSS ZELNICK LEHRMAN & ZISSU, P.C . PERKINS LAW OFFICE, P.C. 4 -and- 5 WEISSMANN WOLFF BERGMAN CO EMAN GRODIN & BVALL LLP 6 7 8 9 Attorneys for Defendants and Counterclaimant 10 I I 12 ! ergman _ DATED: March 23, 2007 LAW OFFICES OF MARC TOBEROFF, PLC 13 14 15 16 17 18 ",<_:1_-7,/-/,;:_;':;'---_·_--­ By: Marc Toberoff Attorneys for Plaintiffs/CounterclaimDefendants _- 19 20 21 22 23 24 25 26 27 28 51 NOTIClS or MOTION AND J01NT STlPUl..>\TION RE: DEFENDANTS' MOTION 1'0 COMPEL THlRl) PARTY KEVIN MARK.S ANI) PlAINTIfF LAURA SIEO!:'J, LARSON TO ANSWER QUESTIONS AT DEPosrJ'10N - - EXHIBIT A 35 i ! ;. EXHIBIT B Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 36 Filed 03/02/2009 Page 1 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 37 Filed 03/02/2009 Page 14 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 38 Filed 03/02/2009 Page 15 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 39 Filed 03/02/2009 Page 16 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 40 Filed 03/02/2009 Page 17 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 41 Filed 03/02/2009 Page 18 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 42 Filed 03/02/2009 Page 19 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 43 Filed 03/02/2009 Page 20 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 44 Filed 03/02/2009 Page 21 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 45 Filed 03/02/2009 Page 22 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 46 Filed 03/02/2009 Page 23 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 47 Filed 03/02/2009 Page 24 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 48 Filed 03/02/2009 Page 25 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 49 Filed 03/02/2009 Page 26 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 50 Filed 03/02/2009 Page 27 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 51 Filed 03/02/2009 Page 28 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 52 Filed 03/02/2009 Page 29 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 53 Filed 03/02/2009 Page 30 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 54 Filed 03/02/2009 Page 31 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 55 Filed 03/02/2009 Page 32 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 56 Filed 03/02/2009 Page 33 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 57 Filed 03/02/2009 Page 34 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 58 Filed 03/02/2009 Page 35 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 59 Filed 03/02/2009 Page 36 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 60 Filed 03/02/2009 Page 37 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 61 Filed 03/02/2009 Page 38 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 62 Filed 03/02/2009 Page 79 of 80 Case 2:04-cv-08400-ODW-RZ Document 476 EXHIBIT B 63 Filed 03/02/2009 Page 80 of 80 EXHIBIT C Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 1 of 29 CASE NO. 11-71844 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, MARK WARREN PEARY, JEAN ADELE PEAVY, AND LAURA SIEGEL LARSON Defendants-Petitioners, (caption continued on next page) PETITIONERS’ MOTION FOR STAY PENDING DECISION ON PETITION FOR REHEARING AND FOR REHEARING EN BANC REQUEST FOR EMERGENCY RESOLUTION UNDER CIRCUIT RULE 27-3(A) BY NO LATER THAN MAY 11, 2012 On Petition for Writ of Mandamus to the United States District Court for the Central District of California, Case No. CV-10-3633, Hon. Otis D. Wright II TOBEROFF & ASSOCIATES, P.C. Marc Toberoff (188547) Keith G. Adams (240497) 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Facsimile: (310) 246-3101 KENDALL BRILL & KLIEGER LLP Richard B. Kendall (90072) Laura W. Brill (195889) 10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 Telephone: 310.556.2700 Facsimile: 310.556.2705 Attorneys for Defendants-Petitioners Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel Attorneys for Defendants-Petitioners Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff EXHIBIT C 64 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 2 of 29 v. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA Respondent, DC COMICS, Plaintiff-Real Party in Interest. EXHIBIT C 65 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 3 of 29 CIRCUIT RULE 27-3 CERTIFICATE OF COUNSEL (i) The Telephone Numbers and Office Addresses of the Attorneys for the Parties: TOBEROFF & ASSOCIATES, P.C. Marc Toberoff (188547) mtoberoff@ipwla.com Keith G. Adams (240497) kgadams@ipwla.com 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Facsimile: (310) 246-3101 Attorneys for Defendants-Petitioners Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel KENDALL BRILL & KLIEGER LLP Richard B. Kendall (90072) rkendall@kbkfirm.com Laura W. Brill (195889) lbrill@kbkfirm.com Nicholas F. Daum (236155) ndaum@kbkfirm.com 10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 Telephone: (310) 556-2700 Facsimile: (310) 556-2705 Attorneys for Defendants-Petitioners Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff -1- EXHIBIT C 66 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 4 of 29 O’MELVENY & MYERS, LLP Daniel M. Petrocelli (97802) dpetrocelli@omm.com Matthew T. Kline (211640) mkline@omm.com Cassandra L. Seto (246608) cseto@omm.com Ashley Pearson (281223) apearson@omm.com 1999 Avenue of the Stars, 7th Floor Los Angeles, California 90067 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for Real Party in Interest DC Comics PERKINS LAW OFFICE, P.C. Patrick T. Perkins (admitted pro hac vice) pperkins@ptplaw.com 1711 Route 9D Cold Spring, New York 10516 Telephone: (845) 265-2820 Facsimile: (845) 265-2819 Attorney for Real Party in Interest DC Comics (ii) Facts Showing the Existence and Nature of the Claimed Emergency On May 25, 2011, the district court ordered produced numerous privileged documents stolen from the law offices of Marc Toberoff, counsel for petitioner Laura Siegel Larson in the Siegel v. Warner Bros. Entertainment Inc., C.D. Cal. 04-08400 ODW (RZx), which had been provided to the U.S. Attorney’s Office pursuant to a grand jury subpoena, and the government’s promise, based on its common interests, to maintain the confidentiality of the documents and not to use them for purposes other than its investigation of the crime. However, the district -2- EXHIBIT C 67 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 5 of 29 court expressly stayed its order “until all review is exhausted.” Writ Petition, Ex. 24 (“May 25 Order”) at 1484. On July 1, 2012, defendants Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel (“Petitioners”) filed a petition for a writ of mandamus, seeking review of the May 25 Order (the “Writ Petition”). On April 17, 2012, a panel of this court affirmed the May 25 Order in a written, published opinion (the “Writ Opinion”), expressly noting the Magistrate had “stayed his order to allow Petitioners to seek review.” Writ Opinion at 4245. On April 25, 2012, real-party-in-interest DC Comics (“DC”) filed an ex parte application with the district court, seeking to lift the stay imposed by the district court in its May 25, 2011 order (Declaration of Marc Toberoff (“Tob. Decl.”), Ex. A), which Petitioners opposed on the grounds set forth herein. Id., Ex. B. On May 1, 2012, petitioners filed a petition for rehearing and rehearing en banc, on the grounds that the Writ Opinion: (1) is of exceptional importance because it endorses an unprecedented “waiver” rule as to the victims of a crime that conflicts with decisions of this Circuit and others, and warrants consideration -3- EXHIBIT C 68 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 6 of 29 en banc; and (2) contains numerous misstatements of facts that are vigorously disputed, not yet adjudicated by the district court in the first instance or resolved differently by other courts, and highly prejudicial to Petitioners. On May 7, 2012, the district court granted DC’s ex parte application to lift the stay, expressing the view that the matter was best addressed by the Ninth Circuit. The district court left the stay in place for a mere four days, or until Friday, May 11, 2012, expressly to allow Petitioners to seek such a stay with this Court. Toberoff Decl., Ex. C at 75 (emphasis added) (holding that arguments about a stay “belongs in the appellate court,” and delaying the effective date of lifting the stay for four days to give Petitioners “the option of approaching the circuit if the[y] so choose”). Given the district court’s express invitation to seek a stay in this Court, and the four-day deadline until May 11, 2012 it imposed, it would have been impractical to seek reconsideration of that order, or other relief, as such would have prevented a timely motion to this Court. Petitioners therefore brought the instant motion on an emergency basis. Absent a stay, the purpose of the pending petition for rehearing and rehearing en banc review of this important legal issue, as provided for by FRAP Rules 40(a) and 35(b) and Ninth Circuit Rules 40 and 35, respectively, would be largely frustrated or negated. -4- EXHIBIT C 69 Case: 11-71844 (iii) 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 7 of 29 When and How Counsel for the Other Parties Were Notified and Whether They Have Been Served with the Motion; Or, If Not Notified and Served, Why That Was Not Done: Marc Toberoff, counsel for certain petitioners, gave DC Comics’ lead counsel, Daniel Petrocelli, notice of this emergency motion in a telephone conference at approximately 1 p.m. on Monday, May 7, 2012. Tob Decl., ¶ 6. Mr. Toberoff also notified the Court at approximately 1:10 p.m. on Monday, May 7, 2012 that Petitioners would bring this emergency motion. Id. (iv) Relief Requested: Petitioners ask that the Court stay the production of the stolen privileged documents at issue until the Court has adjudicated the Petition for Rehearing and Rehearing En Banc. Dated: May 8, 2010 RESPECTFULLY SUBMITTED, Laura W. Brill KENDALL BRILL & KLIEGER LLP Attorneys for Defendants-Petitioners, Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants-Petitioners, Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, Joanne Siegel and Laura Siegel Larson -5- EXHIBIT C 70 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 8 of 29 TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. BACKGROUND ............................................................................................. 2 III. ARGUMENT ................................................................................................... 6 A. Standard For A Stay Pending Resolution Of The Petition For Rehearing And Rehearing En Banc........................................................ 6 B. Petitioners Will Be Irreparably Harmed Absent A Stay ........................ 8 C. DC Will Not Be Prejudiced By A Stay ................................................ 10 D. Petitioners Have A Strong Likelihood Of Success On The Merits .................................................................................................... 12 1. 2. E The Writ Opinion Concerns Vital Issues Of Law And Warrants En Banc Review........................................................... 12 Factual Errors In The Writ Opinion Require Rehearing And Correction ............................................................................ 15 The Public Interest Favors A Stay ........................................................ 15 IV. CONCLUSION.............................................................................................. 16 CERTIFICATE OF COMPLIANCE...................................................................... 17 CERTIFICATE OF SERVICE ............................................................................... 18 i EXHIBIT C 71 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 9 of 29 TABLE OF AUTHORITIES Cases Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486 (9th Cir. 1989) ................................................................................... 8 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................................................... 6 Argenyi v. Creighton Univ., 2011 WL 3497489 (D. Neb. Aug. 10, 2011) ........................................................... 14 Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589 (9th Cir. 2002) ................................................................................... 11 Barton v. United States Dist. Court, 410 F.3d 1104 (9th Cir. 2005) ................................................................................... 7 Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ............................................................................. 13-15 Clarke v. Am. Commerce Nat. Bank, 977 F.2d 1533 (9th Cir. 1992) ................................................................................... 7 Diversified Indus., Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977) ................................................................................... 13 Golden Gate Rest. Ass’n v. City of San Francisco, 512 F.3d 1112 (9th Cir. 2008) ................................................................................... 6 Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010) ................................................................................... 9 In re Grand Jury Subpoena Dated June 5, 1985, 825 F.2d 231 (9th Cir. 1987) ................................................................................... 16 In re Steinhardt Partners, L.P., 9 F.3d 230 (2nd Cir. 1993)....................................................................................... 14 ii EXHIBIT C 72 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 10 of 29 Lowry v. Branhart, 329 F.3d 1019 (9th Cir. 2003) ................................................................................. 11 Matter of Thorp, 655 F.2d 997 (9th Cir. 1981) ...............................................................................2, 10 Miller, Anderson, Nash, Yerke & Wiener v. U.S. Dept. of Energy, 499 F. Supp. 767 (D. Ore. 1980).............................................................................. 14 Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) ................................................................................................. 9 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) ................................................................................... 8 SEC v. Rajaratnam, 622 F.3d 159 (2d Cir. 2010)....................................................................................... 8 W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S. 247 (1953) ................................................................................................... 7 United States v. Am. Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) ............................................................................... 14 United States v. Bergonzi, 403 F.3d 1048 (9th Cir. 2005) ................................................................................. 13 United States v. Gumbaytay, 2011 U.S. Dist. LEXIS 47142 (M.D. Ala. Jan. 19, 2011) ....................................... 14 Other Authorities 18 U.S.C. § 3771 ...................................................................................................... 14 Fed. R. App. P. 8(a)(2) ............................................................................................... 1 Fed. R. App. P. 10(a) ............................................................................................... 11 Fed. R. App. P. 35(b) ................................................................................................. 1 iii EXHIBIT C 73 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 11 of 29 Fed. R. App. P. 40(a) ................................................................................................. 1 Fed. R. App. P. 41 .............................................................................................passim Fed. R. App. P. 41(b) ................................................................................................. 2 Fed. R. App. P. 41(d) ................................................................................................. 2 9th Cir. Rule 27 ...................................................................................................... 1-2 9th Cir. Rule 35 .......................................................................................................... 1 9th Cir. Rule 40 .......................................................................................................... 1 Christopher A. Goelz and Meredith J. Watts, California Practice Guide: Federal 9th Circuit Civil Appellate Practice, Ch. 13-C .............................................. Christopher T. Hines, Returning to First Principles of Privilege Law: Focusing on the Facts in Internal Corporate Investigations, 60 U. Kan. L. Rev. 33, 88 (2011) ............................................................................ 16 iv EXHIBIT C 74 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 12 of 29 MOTION FOR STAY PENDING PETITION FOR REHEARING I. INTRODUCTION Pursuant to Federal Rule of Appellate Procedure 8(a)(2) and Ninth Circuit Rules 27-2 and 27-3, Petitioners-Defendants (“Petitioners”) request an order staying the district court’s order dated May 25, 2011 and the district court’s removal of its stay of that May 25, 2011 order on May 7, 2012, pending a ruling on Petitioners’ May 1, 2012 Petition for a Rehearing and for Rehearing En Banc (Docket No. 31-1; “Rehearing Petition”) of the April 17, 2012 decision (Docket No. 27-1; “Opinion” or “Op.”) by a panel of this Court denying Petitioners’ underlying petition for writ of mandamus (“Writ Petition”). As set forth in greater detail below, a stay is justified because Petitioners will be irreparably harmed absent a stay by the forced production to Petitioners’ litigation adversaries of numerous privileged documents stolen from their counsel’s legal files. Once Petitioners are forced to produce privileged attorneyclient communications, that bell cannot be un-rung, even if the Rehearing Petition is granted. Absent a stay, the purpose of the Rehearing Petition, and Fed. R. App. P. Rules 40(a) and 35(b) and Ninth Circuit Rules 40 and 35, which provide for such rehearing and rehearing en banc, respectively, could be largely negated, and thereby deprive the full Court of an opportunity to weigh in on the vital legal issues 1 EXHIBIT C 75 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 13 of 29 presented by the Writ Opinion before any damage is done. Federal Rule of Appellate Procedure 41 protects a party’s right to seek rehearing or rehearing en banc, as timely filing of a petition for rehearing stays the mandate until disposition of the petition. Fed. R. App. P. 41(d); see also Fed. R. App. P. 41(b) (mandate issues seven days after denial of petition for rehearing); Matter of Thorp, 655 F.2d 997, 999 (9th Cir. 1981). While this is a writ proceeding, the Court should similarly act to protect this Court’s ability to meaningfully rehear its decision before contrary action by the district court, and stay the effect of its ruling as to Petitioners until there is a ruling on the Rehearing Petition. Pursuant to Circuit Rule 27-3, Petitioners respectfully request that relief be granted no later than May 11, 2012, to avoid such irreparable harm.1 II. BACKGROUND Laura Siegel Larson and Joanne Siegel (now deceased) (the “Siegels”) are heirs to Superman co-creator Jerry Siegel and the plaintiffs in Siegel v. Warner Bros. Entertainment Inc., et al., C.D. Cal. Case No. 04-08400 ODW (RZx), and Siegel v. Time Warner Inc., et al., Case No. 04-08776 ODW (RZx) (the “Siegel litigation”). In the midst of the Siegel litigation, wherein they were/are represented by attorney Marc Toberoff, someone stole numerous privileged and work product 1 Petitioners certify that on May 7, 2012, they provided oral notice to the Clerk of the Court and counsel for DC of this emergency motion, and that DC opposes the relief requested. 2 EXHIBIT C 76 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 14 of 29 documents (“Stolen Documents”), and delivered them to the Siegels’ litigation adversaries, Warner Bros. Entertainment Inc. (“Warner”) and its affiliate, real party in interest DC Comics (“DC”). Thereafter, DC filed the underlying action, DC Comics v. Pacific Pictures Corporation, et al., Case No. 10-03663 ODW (RZx) (“Pacific Pictures”), against the Siegels, the heirs of Joe Shuster (Superman’s other co-creator) and their longtime counsel, Mr. Toberoff. The United States Attorney’s Office (“USAO”) requested of Mr. Toberoff that it be permitted to review the Stolen Documents in order to evaluate and investigate the crime. Mr. Toberoff thereafter provided the Stolen Documents to the USAO pursuant to a grand jury subpoena, and the government’s promise, based on its asserted common interest in the investigation, to maintain the confidentiality of the documents and not to use them for purposes other than its criminal investigation. Writ Petition Appendix Ex. 24 ¶¶ 4-5. On May 25, 2011, the Magistrate Judge presiding over discovery in Pacific Pictures held that this confined disclosure to the USAO waived privilege as to all of the Stolen Documents and ordered them produced in the Pacific Pictures action. The Magistrate, recognizing the importance of this issue of first impression, expressly stayed his ruling until “all review is exhausted.” Writ Petition, Ex. 24 (“May 25 Order”) at 1484 (emphasis added). In ruling on DC’s motion for 3 EXHIBIT C 77 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 15 of 29 “clarification,” the Magistrate again confirmed that the stay “would not expire otherwise until review was exhausted,” while noting that “the matter is not clear cut, and [that] the consequences of a wrong decision are significant. “ Writ Petition, Ex. 32 at 1694. On April 17, 2012, a panel of this Court affirmed the May 25 Order and in so doing noted that the Magistrate “stayed his order to allow Petitioners to seek review.” Docket No. 27-1 at 4245. On April 24, 2012, DC filed an ex parte application with the district court, seeking the immediate production of the Stolen Documents notwithstanding the twice-confirmed stay until “all review is exhausted,” and DC’s knowledge that Petitioners were submitting the Rehearing Petition. Declaration of Marc Toberoff (“Tob. Decl.”), Ex. A. DC purported “urgent” grounds for requiring immediate production of the Stolen Documents are addressed below. Petitioners opposed DC’s ex parte application. Id., Ex. B. On May 1, 2012, Petitioners submitted the Rehearing Petition. Docket No. 31-1. A Ninth Circuit judge must request a vote on a petition for rehearing en banc within twenty-one (21) days of the filing of such petition (i.e., by May 22, 2012), or such petition can be summarily denied. Ninth Circuit General Order 5.4(b)(1). On May 7, 2012, the Magistrate Judge granted DC’s ex parte application, lifting the stay under its May 25 Order, effective May 11, 2012, and expressly 4 EXHIBIT C 78 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 16 of 29 invited Petitioners to seek a stay from this Court. Toberoff Decl., Ex. C at 75 (emphasis added) (delaying the effective date of ruling by four days in order to give Petitioners “the option of approaching the circuit if the[y] so choose”). The Magistrate Judge expressly did not weigh the likelihood that the petition for rehearing or rehearing en banc would likely be granted. Nor did the Magistrate Judge identify any prejudice that DC would suffer if the stay continued pending resolution of the Rehearing Petition. Nor did he deny the irreparable harm caused Petitioners by production in the absence of a stay. Instead, the Magistrate Judge observed that these questions were for this Court to decide. Toberoff Decl., Ex. C at 74-75 (“So, any further weighing of the risks, will the matter be taken en banc or cert granted and, if so, will the defendants likely prevail. That now properly belongs not here. That belongs in the appellate court.”) (emphasis added). Hours later, Petitioners informed DC and the Court that they would file the instant motion. Toberoff Decl., ¶ 6. Given the extremely short, four day deadline until May 11, 2012, and the district court’s express instruction that the issues relevant to a stay pending the Rehearing Petition are for this Court, Petitioners have brought the instant motion on an emergency basis. 5 EXHIBIT C 79 Case: 11-71844 III. 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 17 of 29 ARGUMENT A. Standard For A Stay Pending Resolution Of The Petition For Rehearing And Rehearing En Banc This Court has the authority to stay a district court order granting discovery pending the resolution of the Rehearing Petition where, as here, the party seeking the stay tried for and was denied such relief at the district court level. Toberoff Decl., Ex. B. In this Circuit, a stay of a district court’s ruling may issue where there are, “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff …. so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The Ninth Circuit uses these factors as a “sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” Golden Gate Rest. Ass’n v. City of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008). Here, absent a stay of the disclosure of the documents, the opportunity for this Court to meaningfully consider rehearing or rehearing en banc of its published written ruling on the Writ Petition will be damaged.2 The right to seek rehearing 2 The Petition for Rehearing and Rehearing En Banc would not become moot or irrelevant even if the Stolen Documents were turned over. Among other issues, Petitioners have sought rehearing to correct a number of factual misstatements in the Court’s opinion; that aspect of the Petition, which addresses a continuing harm 6 EXHIBIT C 80 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 18 of 29 and rehearing en banc is provided for by the Federal Rules of Appellate Procedure, and has long been recognized as serving an important judicial function. See, e.g. W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S. 247, 261 (1953) (“It is also essential that litigants be left free to suggest to the court … that a particular case is appropriate for consideration by all the judges. A court may take steps to use the en banc power sparingly, but it may not take steps to curtail its use indiscriminately.”). This Court has the inherent power to act to protect the attorney-client privilege while a petition for rehearing or rehearing en banc is pending. Clarke v. Am. Commerce Nat. Bank, 977 F.2d 1533 (9th Cir. 1992) (modifying order regarding disclosure of privileged documents while a petition for rehearing is pending). A stay is necessary in order to preserve a meaningful right to rehearing and rehearing en banc of the district court’s order concerning the privileged documents. As this Court has noted, “once the [documents] are disclosed to the [adverse party], the disclosure cannot be undone, by appeal or otherwise.” Barton v. United States Dist. Court, 410 F.3d 1104, 1109 (9th Cir. 2005). Accordingly, the Court should grant a stay of the disclosure consistent with the stay of this Court’s mandate on a direct appeal, until seven days following a denial of the Rehearing Petition. (footnote continued) separate from the privilege ruling, would not be affected by the disclosure of the Stolen Documents. 7 EXHIBIT C 81 Case: 11-71844 B. 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 19 of 29 Petitioners Will Be Irreparably Harmed Absent A Stay Absent a stay pending the decision on the Rehearing Petition, Petitioners will suffer irreparable injury, and this Court’s procedures for providing an opportunity to seek rehearing and rehearing en banc of the denial of the writ petition will be rendered effectively meaningless. First, it is well-established that erroneous disclosure of privileged material may cause irreparable harm. In Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989), this Court found that “an appeal after disclosure of the privileged communication is an inadequate remedy” for the “irreparable harm a party likely will suffer if erroneously required to disclose privileged materials or communications.” See also SEC v. Rajaratnam, 622 F.3d 159, 170 (2d Cir. 2010) (“Once the ‘cat is out of the bag,’ the right against disclosure cannot later be vindicated.”); Christopher A. Goelz and Meredith J. Watts, California Practice Guide: Federal 9th Circuit Civil Appellate Practice, Ch. 13-C (“Courts have long recognized that a party can suffer irreparable harm if erroneously required to disclose privileged information (i.e., it is impossible to ‘unring the bell’).”). The Ninth Circuit has emphasized that writ review is appropriate where “discovery orders rais[e] particularly important questions of first impression, especially … [as to] the scope of an important privilege” (Perry v. Schwarzenegger, 591 F.3d 1147, 1157 (9th Cir. 2010)), or where a court finds a 8 EXHIBIT C 82 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 20 of 29 broad “waiver of the attorney-client and work product privileges.” Hernandez v. Tanninen, 604 F.3d 1095, 1101 (9th Cir. 2010). Here, the Ninth Circuit in deciding to hear the Writ Petition effectively acknowledged that it raised important questions of first impression and a broad waiver of the attorney-client and work product privileges. Absent a stay issued by this Court during the pendency of the Rehearing Petition, the “bell cannot be unrung” and the privileged material cannot be protected.3 Second, absent a stay, Petitioners will be deprived of any meaningful right to seek rehearing or rehearing en banc of this Court’s April 17, 2012 ruling. Circuit rules expressly provide writ petitioners with the right to seek rehearing or rehearing en banc from an order, yet, here, the district court’s precipitous action effectively preempts Petitioners ability to meaningfully exercise that right. In direct appeals, the Federal Rules of Appellate Procedure expressly guard against such a possibility by staying the mandate. Fed. R. App. P. 41. This Court has 3 Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 608 (2009), does not compel a contrary conclusion. Disclosure of the stolen privileged documents would deprive Petitioners of their right to seek effective rehearing on an issue which this Court has already deemed worthy of consideration, and significant enough to warrant a published opinion. Indeed, Mohawk Industries itself contemplated that writ review would be an appropriate means of challenging erroneous attorney-client privilege rulings, see id., and it would make little sense to ensure that right but to deny Petitioners their ordinary appellate right to meaningfully seek rehearing. Moreover, this Court has recognized that a “broad” waiver of the attorney-client privilege, such as the one at issue here, may cause irreparable injury that cannot be remedied after final judgment. Hernandez, 604 F.3d at 1101. 9 EXHIBIT C 83 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 21 of 29 zealously guarded its rehearing powers by emphasizing that district courts are not to issue orders effectuating this Court’s rulings until after the rehearing period has expired. Circuit Advisory Committee Note To Rule 41-1. Given the district court’s premature lifting of its stay, this Court should grant a stay, consistent with Fed. R. App. P. 41, to meaningfully preserve the right to rehearing en banc. Matter of Thorp, 655 F.2d 997, 999 (9th Cir. 1981). C. DC Will Not Be Prejudiced By A Stay Before the Magistrate Judge, DC offered several reasons why it would purportedly be prejudiced by a stay pending the Rehearing Petition. However, none of DC’s arguments have merit. Appellate Filings: DC averred to the need to have the stolen documents, so it could present such documents to the Court in separate appeals – DC Comics v. Pacific Pictures Corp., 9th Cir. Case No. 11-56934 (the “Anti-SLAPP Appeal”), and Larson v. Warner Bros. Entertainment, Inc., 9th Cir. Case Nos. 11-55863, 1156034 (the “Siegel Appeal”). Tob. Decl., Ex. A at 14. However, this is not a legitimate basis for “prejudice,” because if the rehearing petition lacks merit, a ruling to that effect could issue very quickly, and, in any event, if DC seeks to supplement the record, any legitimate scheduling issues are properly addressed in those appeals, rather than by negating Petitioners’ right to effective rehearing. Moreover, the numerous Stolen Documents were never part of the record on 10 EXHIBIT C 84 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 22 of 29 any order being considered on appeal and have never been presented to the district court in the first instance. It would be highly unusual for any appellate panel to weigh the stolen privileged documents de novo in connection with a pending appeal (see, e.g., Fed. R. App. P. 10(a); Circuit Rule 10-2; Lowry v. Branhart, 329 F.3d 1019 (9th Cir. 2003); Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 593-94 (9th Cir. 2002)), and this exceptionally remote possibility cannot outweigh Petitioners’ strong interest in having the full Circuit review the Rehearing Petition. Discovery Timing: DC also averred to supposed prejudice that a stay (even one lasting a few weeks) would prejudice it because DC would have “to defer depositions for key witnesses.” Tob. Decl., Ex. A at 17. However, DC could easily have deposed any witness it wanted while the stay was in effect, and still could, as no discovery cut-off has been set by the district court. Nor did DC ever move to expedite the decision on the Writ Petition. DC waited four years after receiving and reading the Timeline before filing suit based on its allegations. Tob. Decl., Ex. D at 78-79, ¶¶ 2-4. Given DC’s delay, DC cannot reasonably complain, and DC’s choice to defer depositions or discovery is not a legitimate “prejudice.” Resolution of the Case: DC also claimed prejudice because it supposedly “needs and has the right to proceed to judgment in this case well before 2012.” Tob. Decl., Ex. A at 17. Of course, DC has no “right” to determine the district 11 EXHIBIT C 85 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 23 of 29 court’s schedule. The district court has not yet entered a scheduling order in this case (filed in May 2010); any delay in proceeding to judgment is obviously not due to a stay pending the Rehearing Petition. In December 2011, Petitioners joined in a stipulation to bifurcate and try the First Claim – the key claim which puts at issue the validity of the Shuster termination, the real issue in this case – and schedule a trial on that claim for mid-April 2012, but the district court declined to bifurcate. Tob. Decl., Ex. B at 6. Moreover, Petitioners simply wish to maintain their window to meaningfully seek rehearing or rehearing en banc pursuant to the Fed. R. App. P. and Ninth Circuit Rules. If DC were concerned about the delay in obtaining a judgment by the end of 2012, it would not have waited years to file suit. The action below is not otherwise stayed or even affected by a decision to briefly stay turning over the Stolen Documents while the Petition for Rehearing and Rehearing En Banc is pending. D. Petitioners Have A Strong Likelihood Of Success On The Merits Petitioners have a substantial likelihood that their Rehearing Petition will be heard and will be successful on the merits, justifying the need for a stay to protect that right to rehearing. 1. The Writ Opinion Concerns Vital Issues Of Law And Warrants En Banc Review As set forth in greater detail in the Rehearing Petition (Docket No. 31-1 at 12 EXHIBIT C 86 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 24 of 29 17-26), there is ample basis for en banc review of this critical issue of privilege waiver. Under this Opinion, the victims of any crimes involving the theft of privileged or confidential material and third parties, wishing to assist a criminal investigation, will be penalized for cooperating with the government. The panel decision has wide-ranging implications that stand to chill investigation and prosecution by the government, as it is the first decision from any circuit court on “selective waiver” regarding the victim of a crime as opposed to the target of a criminal investigation. Even as to targets or suspected criminals there has long been a Circuit split as acknowledged by the Opinion. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 611 (8th Cir. 1977). The panel decided “selective waiver” issues that the Ninth Circuit had expressly declined to reach in two prior decisions, including an en banc decision. See United States v. Bergonzi, 403 F.3d 1048, 1050 (9th Cir. 2005); Bittaker v. Woodford, 331 F.3d 715, 720 n.5 (9th Cir. 2003) (en banc). In denying the Writ Petition and a victim’s ability to safeguard privilege via a confidentiality agreement with the government, the panel’s Opinion went further than any circuit before it. Conflict with Other Courts re: Common Interest: The Opinion also concluded that Petitioners and the government could not share a “common interest” as a matter of law, on the grounds that Petitioners “ha[ve] no more of a common interest with the government than does any individual who wishes to see 13 EXHIBIT C 87 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 25 of 29 the law upheld.” Op. at 4253. That portion of the opinion conflicted with both statute (see, e.g., 18 U.S.C. § 3771 (rights of crime victims)), and numerous decisions recognizing that private entities and the government can “share a common interest in developing legal theories and analyzing information” in enforcement actions or where the private party is the victim of the conduct under investigation. In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2nd Cir. 1993). See also Argenyi v. Creighton Univ., 2011 WL 3497489 at *2 (D. Neb. Aug. 10, 2011); United States v. Gumbaytay, 2011 U.S. Dist. LEXIS 47142, Civ. A. No. 2:08cv573–MEF at *10–12 (M.D. Ala. Jan. 19, 2011); United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980); Miller, Anderson, Nash, Yerke & Wiener v. U.S. Dept. of Energy, 499 F. Supp. 767, 770-771 (D. Ore. 1980). Conflict With Bittaker: In Bittaker, this Court en banc addressed a similar issue: whether a waiver of attorney-client privilege based on the assertion of an ineffective assistance of counsel claim also waives privilege as to third parties in a civil litigation. The Court concluded that due to the involuntary nature of the disclosure there was an “implied” waiver limited to the proceeding in which the disclosure was made, but not extending to other litigation. 331 F.3d at 719-20. Bittaker thus limits waiver of the privilege to the proceeding in which a disclosure is made, if, as here, (1) disclosing privileged information is necessary to vindicate a legal right, or (2) the disclosure is made only to a third party who 14 EXHIBIT C 88 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 26 of 29 agrees to maintain the privilege. The logic of the Opinion – that Petitioners must forgo their petition right to seek redress for a crime through law enforcement or forever waive the privilege as to the rest of the world – thus conflicts substantially with Bittaker, and risks creating an intra-circuit split on the law of privilege. 2. Factual Errors In The Writ Opinion Require Rehearing And Correction As set forth in greater detail in the Rehearing Petition (Docket No. 31-1 at 717), the Opinion contains numerous misstatements of fact that are highly prejudicial, as to matters in serious dispute in the underlying Pacific Pictures case, not yet adjudicated or ruled on by the district court, not supported by the record, and not raised by or germane to the Writ Petition. It also includes misstatements that conflict with binding “Superman” decisions in other cases. Although the harm caused by these prejudicial misstatements of fact will exist regardless of disclosure of the Stolen Documents, the need for the Court to address these factual misstatements through rehearing, and the risk that the Court’s misapprehension of the facts affected its judgment as to the legal issues, also counsels in favor of maintaining the status quo with regard to the Stolen Documents until rehearing of all issues can be meaningfully considered by the Court. E. The Public Interest Favors A Stay Finally, the public interest favors a stay here. There is a strong, pervasive 15 EXHIBIT C 89 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 27 of 29 interest throughout the legal community in the selective waiver issue. See, e.g., Christopher T. Hines, Returning to First Principles of Privilege Law: Focusing on the Facts in Internal Corporate Investigations, 60 U. Kan. L. Rev. 33, 88 (2011). The public interest thus supports a stay, so that this Court en banc court can weigh in on this issue, if such review is deemed warranted, without the risk of mootness. In re Grand Jury Subpoena Dated June 5, 1985, 825 F.2d 231, 234 (9th Cir. 1987). IV. CONCLUSION It is necessary to stay production of the Stolen Documents until review of the panel’s Opinion is exhausted to protect the right afforded by the Federal Rules of Appellate Procedure and Ninth Circuit Rules to seek meaningful rehearing and rehearing en banc of the Opinion. The best course is to issue a stay consistent with the Court’s ordinary practice on direct appeal. As such, this Court should stay the production of the Stolen Documents until seven days after the Rehearing Petition is fully resolved. Dated: May 8, 2010 RESPECTFULLY SUBMITTED, Laura W. Brill KENDALL BRILL & KLIEGER LLP Attorneys for Defendants-Petitioners, Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants-Petitioners, Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, Joanne Siegel and Laura Siegel Larson 16 EXHIBIT C 90 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 28 of 29 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rules of Appellate Procedure 27(d) and 32(a), I certify that the appellant Laura Siegel Larson’s brief is proportionately spaced, has a typeface of 14 points or more, and does not exceed 20 pages. Dated: May 8, 2010 RESPECTFULLY SUBMITTED, Laura W. Brill KENDALL BRILL & KLIEGER LLP Attorneys for Defendants-Petitioners, Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants-Petitioners, Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, Joanne Siegel and Laura Siegel Larson 17 EXHIBIT C 91 Case: 11-71844 05/08/2012 ID: 8170067 DktEntry: 34-1 Page: 29 of 29 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing was served electronically by the Court’s ECF system and by first class mail on those parties not registered for ECF pursuant to the rules of this court. Dated: May 8, 2010 RESPECTFULLY SUBMITTED, Laura W. Brill KENDALL BRILL & KLIEGER LLP Attorneys for Defendants-Petitioners, Pacific Pictures Corporation, IP Worldwide, LLC, IPW, LLC, and Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants-Petitioners, Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, Joanne Siegel and Laura Siegel Larson 18 EXHIBIT C 92 EXHIBIT D Case 2:10-cv-03633-ODW-RZ Document 416 Filed 05/07/12 Page 1 of 1 Page ID #:25236 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV10-03633-ODW-(RZx) Title DC COMICS v. PACIFIC PICTURES CORP., ET AL. Present: The Honorable Date MAY 7, 2012 RALPH ZAREFSKY, U.S. MAGISTRATE JUDGE Ilene Bernal Recorded on Courtsmart Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Daniel M. Petrocelli Matthew T. Kline Marc Toberoff Proceedings: HRG: PLAINTIFF’S EX PARTE APPLICATION TO LIFT TEMPORARY STAY ON THE COURT’S MAY 25, 2011 AND AUGUST 8, 2011 ORDERS The Court orders the previously ordered stays lifted, effective May 11, 2012 at 12:00pm. : Initials of Preparer CV-90 (10/08) CIVIL MINUTES - GENERAL EXHIBIT D 93 35 igb Page 1 of 1 EXHIBIT E Case: 11-71844 05/10/2012 ID: 8173505 DktEntry: 39 Page: 1 of 2 FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 10 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT In re: PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF; MARK WARREN PEARY; LAURA SIEGEL LARSON; JEAN ADELE PEAVY, No. 11-71844 D.C. No. 2:10-cv-03633-ODW-RZ Central District of California, Los Angeles ORDER PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARK WARREN PEARY, as personal representative of the Estate of Joseph Shuster; MARC TOBEROFF, an individual; JEAN ADELE PEAVY; LAURA SIEGEL LARSON, an individual, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES, Respondent, DC COMICS, Real Party in Interest. EXHIBIT E 94 Case: 11-71844 05/10/2012 ID: 8173505 DktEntry: 39 Page: 2 of 2 Before: KOZINSKI, Chief Judge, O’SCANNLAIN and N.R. SMITH, Circuit Judges. Petitioners’ Motion for Stay Pending Decision on Petition for Rehearing and Rehearing En Banc is DENIED. Petitioner’s Motion to Exceed Word Limitation for Petition for Rehearing En Banc is GRANTED. 2 EXHIBIT E 95 EXHIBIT F Case 2:04-cv-08400-ODW-RZ Document 478 Filed 03/13/2009 Page 1 of 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 9 10 11 12 JOANNE SIEGEL and LAURA SIEGEL LARSON, Plaintiffs, vs. 13 14 15 16 WARNER BROS. ENTERTAINMENT INC.; TIME WARNER INC.; DC COMICS; and DOES 1-10, Defendants. 17 18 Case No. CV 04-8400 SGL (RZx) Hon. Stephen G. Larson, U.S.D.J. FINAL PRE-TRIAL CONFERENCE ORDER Final Pre-Trial Conference Date: January 26, 2009 Time: 11:00 a.m. Place: Courtroom 1 Trial Date: April 21, 2009 Time: 9:30 a.m. Place: Courtroom 1 [Complaint filed: October 8, 2004] AND RELATED COUNTERCLAIMS 19 20 21 22 23 24 25 26 27 28 FINAL PRE-TRIAL CONFERENCE ORDER EXHIBIT F 96 Case 2:04-cv-08400-ODW-RZ B. 1 2 Document 478 Filed 03/13/2009 Page 11 of 19 Defenses Defendants will not be asserting any affirmative defenses or counterclaims in 3 this phase of the trial. 4 5 8. DISCOVERY 6 Discovery is complete. 7 Defendants’ motion to reopen discovery filed March 2, 2009 is DENIED. 8 9 10 11 12 13 9. ALL DISCLOSURES UNDER FED.R.CIV.P. 26(A)(3) HAVE BEEN MADE The joint exhibit list of the parties has been filed under separate cover as required by L.R. 16-6-1. Unless all parties agree that an exhibit shall be withdrawn, all exhibits will be admitted without objection at trial, except those exhibits objected to in the parties’ Joint Exhibit Stipulation filed concurrently herewith. 14 15 10. 16 17 WITNESS LISTS OF THE PARTIES HAVE BEEN FILED WITH THE COURT Only the witnesses identified in the parties’ joint witness list (as amended) will 18 be permitted to testify (other than solely for impeachment). 19 Neither party is intending to present evidence by way of deposition testimony 20 (other than for cross-examination or impeachment). 21 22 23 11. THE FOLLOWING LAW AND MOTION MATTERS AND MOTIONS IN LIMINE, AND NO OTHERS, HAVE BEEN SUBMITTED, HEARD, AND DECIDED BY THE COURT, AS FOLLOWS: 24 25 26 Plaintiffs’ Motions in Limine A. Motion in Limine No. 1 27 28 9 FINAL PRE-TRIAL CONFERENCE ORDER EXHIBIT F 97 Case 2:04-cv-08400-ODW-RZ 1 2 13. Document 478 Filed 03/13/2009 Page 19 of 19 CONCLUSION The foregoing admissions having been made by the parties, and the 3 parties having specified the foregoing issues remaining to be litigated, this Final 4 Pretrial Conference Order shall supersede the relevant pleadings relevant to the first 5 phase of trial on April 21, 2009 and govern the course of such trial, unless modified 6 to prevent manifest injustice. 7 8 Dated: March 13, 2009 9 10 UNITED STATES DISTRICT COURT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 FINAL PRE-TRIAL CONFERENCE ORDER EXHIBIT F 98

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