Pacific Pictures Corp. v. United States District Court

                                                                  FILED
                             FOR PUBLICATION                      MAY 10 2012

                                                               MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS                U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


In re: PACIFIC PICTURES                  No. 11-71844
CORPORATION; IP WORLDWIDE,
LLC; IPW, LLC; MARC TOBEROFF;            D.C. No. 2:10-cv-03633-ODW-RZ
MARK WARREN PEARY; LAURA                 Central District of California,
SIEGEL LARSON; JEAN ADELE                Los Angeles
PEAVY,

                                         ORDER AMENDING OPINION
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.
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

      In the opinion filed in this case on April 17, 2012, we referred to allegations

of misconduct made against an attorney by the name of David Michaels. That

opinion is hereby amended to reflect that there has been no finding of wrongdoing

on the part of Mr. Michaels. The amended opinion is filed concurrently with this

order. This order does not affect any petitions for rehearing currently before the

court, but no further petitions for rehearing will be accepted.




                                          2
                                                                FILED
                             FOR PUBLICATION                    MAY 10 2012

                                                             MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS              U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


In re: PACIFIC PICTURES                  No. 11-71844
CORPORATION; IP WORLDWIDE,
LLC; IPW, LLC; MARC TOBEROFF;            D.C. No. 2:10-cv-03633-ODW-RZ
MARK WARREN PEARY; LAURA
SIEGEL LARSON; JEAN ADELE                AMENDED
PEAVY,                                   OPINION


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.
                   Appeal from the United States District Court
                      for the Central District of California
                    Otis D. Wright, District Judge, Presiding

                     Argued and Submitted February 7, 2012
                              Pasadena, California

                              Filed April 17, 2012
                             Amended May 10, 2012

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

Opinion by Judge O’SCANNLAIN, Circuit Judge:

      We must decide whether a party waives attorney-client privilege forever by

voluntarily disclosing privileged documents to the federal government.

                                         I

      In the 1930s, writer Jerome Siegel and illustrator Joe Shuster joined forces to

create the character that would eventually become Superman. They ceded their

intellectual property rights to D.C. Comics when they joined the company as

independent contractors in 1937.1 Since the Man of Steel made his first

appearance in 1938, he has been fighting for “truth, justice, and the American




      1
      The name and corporate structure of the real party in interest has changed a
number of times since 1938. For simplicity, we refer to it as “D.C. Comics.”

                                         2
way.” Shuster, Siegel, their heirs (“Heirs”), and D.C. Comics have been fighting

for the rights to his royalties for almost as long.

      Marc Toberoff, a Hollywood producer and a licensed attorney, stepped into

the fray around the turn of the millennium. As one of his many businesses,

Toberoff pairs intellectual property rights with talent and markets these packages

to movie studios. Having set his sights on Superman, Toberoff approached the

Heirs with an offer to manage preexisting litigation over the rights Siegel and

Shuster had ceded to D.C. Comics. He also claimed that he would arrange for a

new Superman film to be produced. To pursue these goals, Toberoff created a

joint venture between the Heirs and an entity he owned. Toberoff served as both a

business advisor and an attorney for that venture. The ethical and professional

concerns raised by Toberoff’s actions will likely occur to many readers, but they

are not before this court.

      While the preexisting litigation was pending, Toberoff hired a new lawyer to

work for one of his companies. This attorney remained in Toberoff’s employ for

only about three months before allegedly absconding with copies of several

documents from the Siegel and Shuster files. Unsuccessful in his alleged attempt

to use the documents to solicit business from the Heirs, this attorney sent the

documents to executives at D.C. Comics. While he did not include his name with


                                            3
the package, he did append a cover letter, written in the form of a timeline,

outlining in detail Toberoff’s alleged master plan to capture Superman for himself.

      This happened no later than June 2006, and the parties have been battling

over what should be done with these documents ever since. Rather than exploiting

the documents, D.C. Comics entrusted them to an outside attorney and sought to

obtain them through ordinary discovery in the two ongoing lawsuits over

Superman. Considering every communication he had with the Heirs to be

privileged—regardless of whether the communication was in his capacity as a

business advisor or an attorney—Toberoff resisted all such efforts. Ultimately, in

April 2007, a magistrate judge ordered certain documents, including the attorney’s

cover letter, turned over to D.C. Comics. A few months later, Toberoff at long last

reported the incident to the authorities (specifically the Federal Bureau of

Investigation). In December 2008, Toberoff finally produced at least some of the

documents.

      In 2010, D.C. Comics filed this lawsuit against Toberoff, the Heirs, and

three entities in which Toberoff owned a controlling interest (collectively, the

“Petitioners”), claiming that Toberoff interfered with its contractual relationships

with the Heirs. The attorney’s cover letter formed the basis of the lawsuit and was

incorporated into the complaint. Toberoff has continued to resist the use of any of


                                          4
the documents taken from his offices, including those already disclosed to D.C.

Comics and especially the cover letter.

      About a month after the suit was filed, Toberoff asked the Office of the

United States Attorney for the Central District of California to investigate the theft.

In response to a request from Toberoff, the U.S. Attorney’s Office issued a grand

jury subpoena for the documents as well as a letter stating that if Toberoff

voluntarily complied with the subpoena the Government would “not provide the . .

. documents . . . to non-governmental third parties except as may be required by

law or court order.” The letter also confirmed that disclosure would indicate that

“Toberoff has obtained all relevant permissions and consents needed (if any) to

provide the . . . documents . . . to the government.” Armed with this letter,

Toberoff readily complied with the subpoena, making no attempt to redact

anything from the documents.

      D.C. Comics immediately requested all documents disclosed to the U.S.

Attorney, claiming that the disclosure of these unredacted copies waived any

remaining privilege. Examining the weight of authority from other circuits, the

magistrate judge agreed that a party may not selectively waive attorney-client

privilege. The magistrate judge reasoned that, because a voluntary disclosure of

privileged materials breaches confidentiality and is inconsistent with the theory


                                           5
behind the privilege, such disclosure waives that privilege regardless of whether

the third party is the government or a civil litigant. Having delivered the

documents to the government, the magistrate judge concluded, Petitioners could

not rely on the attorney-client privilege to shield them from D.C. Comics.

      However, the magistrate judge noted that this circuit has twice declined to

decide whether a party may selectively waive the attorney-client privilege, and

stayed his order to allow Petitioners to seek review. The district court denied

review. Petitioners seek to overturn the magistrate’s order through a writ of

mandamus.

                                          II

      A writ of mandamus is an extraordinary remedy. A party seeking the writ

has the “burden of showing that [his] right to the issuance of the writ is clear and

indisputable.” Bauman v. U.S. Dist. Ct., 557 F.2d 650, 656 (9th Cir. 1977)

(internal quotation marks omitted). In evaluating whether a petitioner has met that

burden, we consider: (1) whether he “has no other adequate means” of seeking

relief; (2) whether he “will be damaged or prejudiced in a way not correctable on

appeal” after final judgment; (3) whether the “district court’s order is clearly

erroneous as a matter of law”; (4) whether the order “is an oft-repeated error”; and

(5) whether the order “raises new and important problems, or issues of first


                                           6
impression.” Id. at 654–55. We have established no specific formula to weigh

these factors, but failure to show what is generally listed as the third factor, error, is

fatal to any petition for mandamus. See Burlington N. & Santa Fe. Ry. v. U.S. Dist.

Ct., 408 F.3d 1142, 1146 (9th Cir. 2005).2

                                           III

      Under certain circumstances, the attorney-client privilege will protect

communications between clients and their attorneys from compelled disclosure in a

court of law. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Though

this in some way impedes the truth-finding process, we have long recognized that

“the advocate and counselor [needs] to know all that relates to the client’s reasons

for seeking representation” if he is to provide effective legal advice. Trammel v.

United States, 445 U.S. 40, 51 (1980); see also 8 John Henry Wigmore, Evidence

§ 2290 (John T. McNaughton, ed. 1961). As such, we recognize the privilege in

order to “encourage full and frank communication between attorneys and their

      2
         Petitioners assert that, because this case presents an issue of first
impression, they must demonstrate simple rather than clear error. We have not
always been precise as to whether we look for “error” or “clear error” where our
sister circuits have addressed an issue, but we have not. Compare Anon. Online
Speakers v. U.S. Dist. Ct., 661 F.3d 1168 (9th Cir. 2011) (applying the clear error
standard in a circuit split situation), with San Jose Mercury News, Inc. v. U.S. Dist.
Ct., 187 F.3d 1096 (9th Cir. 1999) (applying the simple error standard when other
circuits had weighed in on parts of an issue). We assume but do not decide that
Petitioners need show only error.

                                            7
clients and thereby promote broader public interests in the observance of law and

administration of justice.” Upjohn Co., 449 U.S. at 389.3

      Nonetheless, because, like any other testimonial privilege, this rule

“contravene[s] the fundamental principle that the public has a right to every man’s

evidence,” Trammel, 445 U.S. at 50 (internal alterations and quotation marks

omitted), we construe it narrowly to serve its purposes, see, e.g., United States v.

Martin, 278 F.3d 988, 999 (9th Cir. 2002).4 In particular, we recognize several

ways by which parties may waive the privilege. See, e.g., Hernandez v. Tanninen,

604 F.3d 1095, 1100 (9th Cir. 2010). Most pertinent here is that voluntarily

disclosing privileged documents to third parties will generally destroy the

privilege. Id. The reason behind this rule is that, “‘[i]f clients themselves divulge

such information to third parties, chances are that they would also have divulged it

to their attorneys, even without the protection of the privilege.’” Comment,


      3
        Because Petitioners have never challenged the district court’s application
of federal law, we assume but do not decide that this was correct even though this
case involves diversity claims to which state privilege law would apply. Lewis v.
United States, 517 F.2d 236, 237 n.2 (9th Cir. 1975) (per curiam).
      4
        Because no one challenges whether these communications would have
been privileged absent waiver, we do not address that issue. For example, we
assume but do not decide that these communications were all made for the purpose
of obtaining legal as opposed to business advice. Cf. United States v. Ruehle, 583
F.3d 600, 608 n.8 (9th Cir. 2009) (noting that business advice does not fall within
the purview of attorney-client privilege even if the advisor is a lawyer).

                                          8
Stuffing the Rabbit Back into the Hat: Limited Waiver of the Attorney-Client

Privilege in an Administrative Agency Investigation, 130 U. Pa. L. Rev. 1198, 1207

(1982). Under such circumstances, there simply is no justification to shut off

judicial inquiry into these communications.

      Petitioners concede that this is the general rule, but they assert a number of

reasons why it should not apply to them.

                                           A

      Petitioners’ primary contention is that because Toberoff disclosed these

documents to the government, as opposed to a civil litigant, his actions did not

waive the privilege as to the world at large. That is, they urge that we adopt the

theory of “selective waiver” initially accepted by the Eight Circuit, Diversified

Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc), but rejected by

every other circuit to consider the issue since, see In re Qwest Commc’ns Int’l, 450

F.3d 1179, 1197 (10th Cir. 2006); Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th

Cir. 2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293

F.3d 289, 295 (6th Cir. 2002) [hereinafter “In re Columbia”]; United States v.

Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir. 1997); Genentech, Inc. v. United

States Int’l Trade Comm’n, 122 F.3d 1409, 1416–18 (Fed. Cir. 1997); In re

Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993); Westinghouse Elec.


                                           9
Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir. 1991); In re Martin

Marietta Corp., 856 F.2d 619, 623–24 (4th Cir. 1988); Permian Corp. v. United

States, 665 F.2d 1214, 1221 (D.C. Cir. 1981).

      As the magistrate judge noted, we have twice deferred judgment on whether

we will accept a theory of selective waiver. United States v. Bergonzi, 403 F.3d

1048, 1050 (9th Cir. 2005) (per curiam); Bittaker v. Woodford, 331 F.3d 715, 720

n.5 (9th Cir. 2003) (en banc). But we share the concerns expressed by many of our

sister circuits about the cursory analysis behind the Diversified rule. The Eighth

Circuit—the first court of appeals to consider the issue—adopted what has become

a highly controversial rule only because it concluded that “[t]o hold otherwise may

have the effect of thwarting the developing procedure of corporations to employ

independent outside counsel to investigate and advise them in order to protect

stockholders.” Diversified, 572 F.2d at 611. This apprehension has proven

unjustified. Officers of public corporations, it seems, do not require a rule of

selective waiver to employ outside consultants or voluntarily to cooperate with the

government. See, e.g., Westinghouse Elec. Corp., 951 F.2d at 1426.

      More importantly, such reasoning does little, if anything, to serve the public

good underpinning the attorney-client privilege. That is, “selective waiver does

not serve the purpose of encouraging full disclosure to one’s attorney in order to

obtain informed legal assistance; it merely encourages voluntary disclosure to

                                          10
government agencies, thereby extending the privilege beyond its intended

purpose.” Id. at 1425.

      It may well be that encouraging cooperation with the government is an

alternative route to the ultimate goal of promoting adherence to the law. In re

Columbia, 293 F.3d at 311 (Boggs, J., dissenting). And there are those who assert

that “an exception to the third-party waiver rule need [not] be moored to the

justifications of the attorney-client privilege.” Id. at 308 (emphasis omitted). We

disagree. If we were to unmoor a privilege from its underlying justification, we

would at least be failing to construe the privilege narrowly. Cf. Univ. of Pa. v.

EEOC, 493 U.S. 182, 189 (1990) (citing Trammel, 445 U.S. at 50; United States v.

Bryan, 339 U.S. 323, 331) (1950)). And more likely, we would be creating an

entirely new privilege. In re Qwest Commc’ns Int’l, 450 F.3d 1179; Westinghouse,

951 F.2d at 1425.

      It is not beyond our power to create such a privilege. Univ. of Pa., 493 U.S.

at 189 (noting that Fed. R. Evid. 501 provides certain flexibility to adopt privilege

rules on a case-by-case basis). But as doing so requires balancing competing

societal interests in access to evidence and in promoting certain types of

communication, the Supreme Court has warned us not to “exercise this authority

expansively.” Id.; see also United States v. Nixon, 418 U.S. 683, 710 (1974). Put

simply, “[t]he balancing of conflicting interests of this type is particularly a

                                           11
legislative function.” Univ. of Pa., 493 U.S. at 189.

      Since Diversified, there have been multiple legislative attempts to adopt a

theory of selective waiver. Most have failed. Report of the Advisory Committee

on Evidence Rules, May 15, 2007, at 4, available at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/2007-05-Comm

ittee_Report-Evidence.pdf (reporting the selective waiver provision separately

from the general proposed rule); SEC Statement in Support of Proposed Section

24(d) of the Securities Exchange Act of 1934, 16 Sec. Reg. & L. Rep. 461 (Mar. 2,

1984). But see H.R. Rep. No. 870, 96th Cong., 1st Sess. (1980), codified at 15

U.S.C. § 1312. Given that Congress has declined broadly to adopt a new privilege

to protect disclosures of attorney-client privileged materials to the government, we

will not do so here. Univ. of Pa., 493 U.S. at 189 (requiring federal courts to be

particularly cautious when legislators have “considered the relevant competing

concerns but [have] not provided the privilege”).

                                          B

      Petitioners next assert that even if we reject selective waiver as a general

matter, we should enforce a purported confidentiality agreement based upon the

letter from the U.S. Attorney’s Office. Though no circuit has officially adopted

such a rule, at least two have “left the door open to selective waiver” where there is

a confidentiality agreement. In re Columbia, 293 F.3d at 301 (discussing

                                         12
Steinhardt and Dellwood Farms, Inc. v. Cargill, 128 F.3d 1122 (7th Cir. 1997));

see also In re Qwest Commc’ns Int’l, 450 F.3d at 1192–94 (describing such a rule

as a “leap” but declining to reject it completely).

       Assuming that this letter constitutes a confidentiality agreement, Petitioners

have provided no convincing reason that post hoc contracts regarding how

information may be revealed encourage frank conversation at the time of the

advice. Indeed, as the Sixth Circuit has noted, while this approach “certainly

protects the expectations of the parties to the confidentiality agreement, it does

little to serve the ‘public ends’ of adequate legal representation that the attorney-

client privilege is designed to protect.” In re Columbia, 293 F.3d at 303. Instead,

recognizing the validity of such a contract “merely [adds] another brush on an

attorney’s palette [to be] utilized and manipulated to gain tactical or strategic

advantage.” Steinhardt, 9 F.3d at 235; cf. Permian Corp., 665 F.2d at 1221. And

it would undermine the public good of promoting an efficient judicial system by

fostering uncertainty and encouraging litigation. Upjohn, 449 U.S. at 393 (noting

that an “uncertain privilege . . . is little better than no privilege at all”).

       The only justification behind enforcing such agreements would be to

encourage cooperation with the government. But Congress has declined to adopt

even this limited form of selective waiver. See Statement of Congressional Intent

Regarding Rule 502 of the Federal Rules of Evidence, 154 Cong. Rec. H. 7817

                                             13
(2008), reprinted in Fed. R. Evid. 502 addendum to comm. n subdivision (d)

(noting that Rule 502 “does not provide a basis for a court to enable parties to

agree to a selective waiver of the privilege, such as to a federal agency conducting

an investigation”). As such, we reject such a theory here.

                                          C

      Petitioners next aver that, because Toberoff was the victim of the crime

rather than the target of the grand jury probe, his disclosure should be treated

differently. But if it is unnecessary to adopt a theory of selective waiver to

encourage potential defendants to cooperate with the government, In re Qwest

Commc’ns Int’l, 450 F.3d at 11; Westinghouse, 951 F.2d at 1425, it is even less

necessary to do so to encourage victims to report crimes to the government. The

desire to see the crime prosecuted is sufficient impetus to cooperate.

      We are unconvinced by Petitioners’ argument that adopting such a rule will

drastically impair law enforcement attempts to investigate espionage against

“attorneys, financial institutions, medical providers, national security agencies,

judges, large corporations, or law firms.” This has not occurred despite near

universal rejection of a selective waiver rule. Furthermore, most of these

documents are not covered by attorney-client privilege because they do not

represent communications between a lawyer and his client for the purpose of

obtaining legal advice. Cf. Ruehle, 583 F.3d 608–09 & n.8 (rejecting a

                                          14
presumption of privilege even when a communication involves a lawyer). And,

even if they were originally covered by the privilege, they would eventually have

to be made public if they are to become evidence in a criminal trial. To the extent

that timing is a concern, it can be ameliorated by properly seeking a protective

order. Fed. R. Evid. 502(d).

      We are similarly unpersuaded that, because Toberoff was a victim of the

crime, Petitioners have a common interest with the government. Rather than a

separate privilege, the “common interest” or “joint defense” rule is an exception to

ordinary waiver rules designed to allow attorneys for different clients pursuing a

common legal strategy to communicate with each other. See Hunydee v. United

States, 355 F.2d 183, 185 (9th Cir. 1965); see also In re Grand Jury Subpoenas,

902 F.2d 244, 249 (4th Cir. 1990) (collecting cases). However, a shared desire to

see the same outcome in a legal matter is insufficient to bring a communication

between two parties within this exception. Id. Instead, the parties must make the

communication in pursuit of a joint strategy in accordance with some form of

agreement—whether written or unwritten. Cf. Continental Oil Co. v. United

States, 330 F.2d 347, 350 (9th Cir. 1964).

      There is no evidence that Toberoff and the Office of the U.S. Attorney

agreed before the disclosure jointly to pursue sanctions against Toberoff’s former

employee. Toberoff is not strategizing with the prosecution. He has no more of a

                                         15
common interest with the government than does any individual who wishes to see

the law upheld. Furthermore, the statements here were not “intended to facilitate

representation” of either Toberoff or the government. Hunydee, 355 F.2d at 185

(limiting privilege to those circumstances); accord United States v. BDO Seidman,

492 F.3d 806, 816 (7th Cir. 2007) (same).

                                         D

      Petitioners also argue that they should be treated differently because

Toberoff produced these documents subject to a subpoena. Involuntary disclosures

do not automatically waive the attorney-client privilege. United States v. De La

Jara, 973 F.2d 746, 749–50 (9th Cir. 1992). But without the threat of contempt,

the mere existence of a subpoena does not render testimony or the production of

documents involuntary. Westinghouse Elec. Corp., 951 F.2d at 1414; see also

United States v. Plache, 913 F.2d 1375, 1380 (9th Cir. 1990). Instead, whether the

subpoenaed party “chose not to assert the privilege when it was appropriate to do

so is [also] relevant to the waiver analysis.” In re Grand Jury Proceedings, 219

F.3d 175, 187 (2d Cir. 2000); cf. In re Subpoenas Duces Tecum, 738 F.2d 1367,

1369–70 (D.C. Cir. 1984).

      Toberoff both solicited the subpoena and “chose not to assert the privilege

when it was appropriate to do so. . . .” In re Grand Jury Proceedings, 219 F.3d at

187. That is, even though the subpoena specifically contemplated that Toberoff

                                        16
may choose to redact privileged materials, he did not. Petitioners assert that the

U.S. Attorney would not have been satisfied with redacted documents, but we will

never know because Toberoff never tried. As such, we conclude that the district

court properly treated the disclosure of these documents as voluntary.5

                                          E

      Finally, Petitioners asserted for the first time in oral argument that these

documents should remain confidential because the Heirs themselves did not take

the affirmative step to disclose the documents. We generally do not consider

issues raised for the first time during oral argument, unless “failure to do so would

result in manifest injustice” and the appellee would not be prejudiced by such

consideration. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (internal

quotation marks and emphasis omitted). There are several instances in which an

attorney’s behavior may waive the privilege, even without an explicit act by the

client. See, e.g., Himmelfarb v. United States, 175 F.2d 924, 939 (9th Cir. 1949);

see generally 8 Wigmore, Evidence § 2325 (listing actual and implied consent as

well as theft of documents from the attorney’s office). As many of these



      5
        As these preexisting documents were “sought for [their] own sake rather
than to learn what took place before the grand jury” and as their “disclosure will
not compromise the integrity of the grand jury process,” Petitioners’ argument that
the disclosure was protected by Federal Rule of Criminal Procedure 6(e)(2)(B) is
similarly without merit. United States v. Dynavac, Inc., 6 F.3d 1407, 1411–12 (9th
Cir. 1993).

                                          17
documents fall within these situations, we do not consider it a manifest injustice to

hold Petitioners to their apparent acceptance of Toberoff’s authority to waive the

privilege on behalf of his clients, who have never disputed his authority to do so.6

                                          V

      Because Petitioners have not established error, we need not discuss the other

Bauman factors. The petition for mandamus is DENIED.




      6
        Indeed, there is even circumstantial evidence that the Heirs affirmatively
consented to Toberoff’s actions. There is also evidence that Toberoff should
himself be treated as a co-client. After all, Toberoff represented all of the
Petitioners, including a joint venture between the Heirs and himself in which he
had a controlling interest. As such, he likely had authority unilaterally to waive the
privilege on at least some of these documents. Restatement (Third) of Law
Governing Lawyers § 76 cmt. g; see also In re Teleglobe Commc’ns Corp., 493
F.3d 345, 363 (3d Cir. 2007).

                                         18
                                    COUNSEL

Richard B. Kendall, Kendall Brill & Klieger LLP, Los Angeles, California, argued
the cause and filed the briefs for the petitioners. With him on the briefs were Laura
W. Brill, Kendall Brill & Kleiger, LLP, Los Angeles, California as well as Marc
Toberoff and Keith G. Adams, Toberoff & Associates, P.C., Los Angeles,
California.

Matthew T. Kline, O’Melveny & Myers LLP, Los Angeles, California, argued the
cause and filed the brief for the real party in interest. With him on the brief were
Daniel M. Petrocelli and Cassandra L. Seto, O’Melveny & Myers LLP as well as
Patrick T. Perkins, Perkins Law Office, P.C., Cold Spring, New York.




                                         19