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In re Pacific Pictures Corp.

United States Court of Appeals for the Ninth Circuit
679 F.3d 1121 (2012)


Marc Toberoff (defendant) was a Hollywood producer and attorney. Toberoff approached the heirs of Jerome Siegel and Joe Shuster (Heirs), the creators of Superman, and offered to manage their preexisting litigation over intellectual property rights against D.C. Comics (plaintiff). Around this time, Toberoff hired a new attorney to work in one of his companies. The new attorney stole several documents from the Siegel and Shuster files and sent the documents to D.C. Comics. The documents were accompanied by a cover letter detailing Toberoff’s alleged plan to take the Superman intellectual property rights for himself. D.C. Comics did not look at the documents but instead sought to obtain the right to review them in the preexisting litigation. Toberoff refused to disclose the documents on the ground that they were privileged attorney-client communications. In 2010, D.C. Comics brought the instant case against Toberoff, alleging he interfered with its contractual relationship with the Heirs. Toberoff continued to challenge the use of the stolen documents on the ground that they were privileged. A month after D.C. Comics initiated the instant case, Toberoff requested a formal investigation into the theft of his files to be conducted by the Office of the United States Attorney for the Central District of California (U.S. Attorney). The U.S. Attorney’s Office subpoenaed the stolen documents and assured Toberoff that, if Toberoff voluntarily complied, the documents would not be provided to non-governmental third parties unless required by law or court order. Toberoff complied with the subpoena and disclosed the documents. In the instant case, D.C. Comics requested the documents Toberoff disclosed to the U.S. Attorney, arguing Toberoff waived attorney-client privilege by disclosing them to a third party. The magistrate judge found that a party may not selectively waive attorney-client privilege, and therefore found the documents were not privileged. Toberoff petitioned for mandamus.

Rule of Law


Holding and Reasoning (O’Scannlain, J.)

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