The Ninth Circuit Court of Appeals handed out a big win for Warner Bros. in its Superman lawsuit against Marc Toberoff. The court ruled that documents stolen from Toberoff weren’t privileged and Warner could use them against him.
Toberoff represents the estates of late Superman co-creators Jerry Siegel and Joe Shuster. Toberoff was accused of tortious interference after he tried to strike a deal with the estates’ heirs for Superman’s rights. Warner filed suit after learning of the venture when documents concerning the deal were stolen from Toberoff by a former associate and given to Warner.
Warner’s victory isn’t only bad for Toberoff’s defense, but it could also result in stark changes in how people cooperate with police investigations.
That’s because the court refused to accept Toberoff’s “selective waiver” of the attorney-client privilege defense.
In its opinion, the court agreed with a lower court’s ruling that Toberoff waived the attorney-client privilege once he revealed the nature of the stolen documents to officers investigating the theft.
While the court notes the Supreme Court gives judges discretion to apply selective waiver of privilege, in Toberoff’s case the judge refused to grant it because of Toberoff’s disclosure to law enforcement.
It’s not hard to imagine the possibility that the court’s ruling could deter attorneys in the future from reporting thefts of privileged documents. Because doing so could result in the writings being used against them.
However, the court also notes it was uncomfortable with the idea of Toberoff acting as both business advisor and lawyer for the estates. While this possible ethical conflict wasn’t the issue before the court, it could possibly explain why the judge ultimately ruled against Toberoff.
For now, Marc Toberoff seems to be facing an uphill battle against Warner Bros.’ Superman lawsuit.