A ruling by a federal magistrate judge could open the door for Warner Bros. to gain access to confidential documents the studio insists support its claims against the attorney representing the heirs of creators Jerry Siegel and Joe Shuster in their fight for the rights to Superman.
Variety reports that U.S. Magistrate Judge Ralph Zarefsky ruled Wednesday that the documents, stolen from the office of attorney Marc Toberoff and delivered anonymously to Warner Bros. in December 2008, were not protected by attorney-client privilege. However, he postponed a final ruling until Toberoff and his attorneys can seek a decision from U.S. District Judge Judge Otis Wright.
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 for himself “a majority and controlling financial stake” in the Superman rights.
Just last month Zarefsky rejected the studio’s argument that the documents, which purportedly contain a formula for how the two estates and Toberoff would divide the Superman assets, violate the U.S. Copyright Act and, therefore, cannot be isolated from discovery. But this week he determined that Toberoff actually waived privilege when he turned over the documents last year in response to a grand jury subpoena issued after Toberoff met with the U.S. Attorney’s office to discuss an investigation of the theft.
The decision is only the latest twist in Warner Bros.’ increasingly bitter legal battle to hold onto Superman following a 2008 ruling that Siegel’s widow Joanne Siegel and daughter Laura Siegel Larson had successfully recaptured half of the original copyright to the Man of Steel under the provisions of the 1976 Copyright Act. The window will open in 2013 for Shuster’s estate to do the same.