In re Pacific Pictures

A party cannot assert "selective waiver" of attorney-client privilege when the party discloses privileged documents to the government because it is inconsistent with serving societal interests and it is not a new privilege that Congress is willing to adopt.

Marc Toberoff (Toberoff) was a business advisor and attorney for the creators and heirs of Superman, who had ceded their rights to D.C. Comics. Toberoff's employee David Michaels (Michaels) sent documents to D.C. Comics detailing Toberoff's "alleged master plan to capture Superman for himself." Toberoff resisted discovery by D.C. Comics, claiming that the documents were privileged. However, Toberoff then asked the U.S. Attorney to investigate Michaels, and provided unredacted copies of the documents in response to their subpoena. D.C. Comics requested all documents disclosed to the U.S. Attorney, claiming that the disclosure waived any remaining privilege. The magistrate judge agreed, reasoning that a party may not selectively waive attorney-client privilege, regardless of whether the third party is the government, because "it is inconsistent with the theory behind the privilege." Toberoff appealed through a writ of mandamus. The Ninth Circuit applied a "clearly erroneous" standard of review. The Court noted that the general rule is that voluntary disclosure of privileged documents to third parties will destroy attorney-client privilege. Toberoff urged the Ninth Circuit to adopt the Eighth Circuit's rule that disclosure of documents to the government, as opposed to a civil litigant, constitutes "selective waiver." The Ninth Circuit did not adopt the Eighth Circuit's rule because it is a controversial rule which no other circuit has followed, it does not serve the public good of encouraging full disclosure to one's attorney, and Congress has refused to adopt such a new privilege. Additionally, Toberoff's argument that he produced the documents in response to a subpoena failed because he "solicited the subpoena and chose not to assert the privilege when it was appropriate to do so." The Ninth Circuit did not find any grounds on which to grant the petition for mandamus. DENIED.