In a significant victory for Warner Bros. in its lengthy and increasingly bitter battle over the rights to the Man of Steel, the Ninth Circuit Court of Appeals ruled today that the attorney representing the estates of Superman co-creators Jerry Siegel and Joe Shuster must turn over documents stolen from his office in 2008.
The sensitive papers, which lawyer Marc Toberoff had argued were protected by attorney-client privilege, were taken from his office by disgruntled former associate David Michaels and delivered anonymously to Warner Bros. in December 2008.
At the time of the theft, a judge ruled that the documents were privileged, and ordered the studio to turn them over to a court officer within 24 hours. However, an attached seven-page cover letter called the “Superman-Marc Toberoff Timeline” was not privileged, and became the basis for Warner Bros.’ 2010 lawsuit against the attorney. The complaint alleges that Toberoff “orchestrated a web of collusive agreements” with the Siegel and Shuster heirs, leading them to reject “mutually beneficial” longtime deals with DC Comics and seek to recapture the Superman copyright. In addition, the studio claims Toberoff schemed to secure “a majority and controlling financial stake” in the Superman rights.
"We are extremely pleased that the 9th Circuit unanimously found in our favor,” Warner Bros. said in a statement. “The ruling means that defendant Mark Toberoff must now turn over critical evidence in the pending litigation against him and others."
The Ninth Circuit decision upholds a a May 2011 ruling by a federal magistrate judge that Toberoff waived privilege when he turned over the documents in 2010 in response to a grand jury subpoena issued after he met with the U.S. Attorney’s office to discuss and investigation of the theft.
The judges weren’t swayed by Toberoff’s argument that his compliance with the subpoena amounted to a “selective waiver” of privilege. They also appeared skeptical of his business relationship with the Siegel and Shuster heirs, noting, “The ethical and professional concerns raised by Toberoff’s actions will likely occur to many readers, but they are not before this court.”
You can read the Ninth Circuit’s ruling here.
CBR News Editor Kiel Phegley and Staff Writer Kevin Melrose contributed to this article