In re Pacific Pictures Corp.

Hollywood producer and attorney Marc Toberoff (Toberoff) managed litigation on behalf of the heirs of Superman's creators against D.C. Comics (D.C. Comics). An attorney Toberoff had hired stole privileged documents from Toberoff's files and sent them to D.C. Comics with a cover letter alleging Toberoff planned to take the Superman rights for himself; D.C. Comics didn't review the documents but sought court access to them in ongoing litigation, which Toberoff resisted on privilege grounds. Toberoff separately asked federal prosecutors to investigate the theft, and when the U.S. Attorney's Office subpoenaed the stolen documents, promising not to share them with non-governmental third parties absent a court order, Toberoff voluntarily complied and produced them. D.C. Comics then sought those same documents from Toberoff in its own suit against him, arguing his voluntary disclosure to the government waived privilege; the magistrate judge agreed, rejecting Toberoff's selective-waiver argument, and Toberoff petitioned for mandamus.