The $80 million legal battle between Warner Bros and the Saul Zaentz Company and the estate of The Lord Of The Rings author J.R.R. Tolkien over copyright and digital merchandising just took another turn – this time against some of the lawyers. The studio and its partner in this case this week filed a motion to have Fourth Age’s lawyers Greenberg Glusker Fields Claman & Machtinger LLP disqualified from the case. “Warner and Zaentz bring this motion to disqualify Greenberg as counsel of record for the Tolkien/HC Parties in this litigation and for other relief, because the firm impermissibly gained access to privileged information in violation of Rules of Professional Conduct,” said the motion filed yesterday in federal court. WB and Zaentz have asked for a hearing on July 7 for Judge Audrey Collinsto to rule on their motion (read it here).
The other side says this is all a smokescreen. “There is absolutely no basis for the motion filed by WB and Zaentz yesterday,” said Greenberg attorney Bonnie Eskenazi today. ”Greenberg Glusker acted properly in all respects at all times. The motion was filed for purely and transparently tactical and strategic reasons. We look forward to the Court vindicating our position.” The filing comes just over two weeks after the court denied a motion by Zarntz seeking to get a review of a document it wanted clawbacked. That ruling allowed the third-party business proposal paperwork with its reference to “tangibility” in the margins to be included in the case. It is non-tangible merchandising, such as online slot machines and other digital merchandising, that makes up the heart of the Tolkien estate’s case. While a partner in the firm, heavyweight Hollywood lawyer Bert Fields is not directly involved in this case.
First filed by the estate back in November 2012, the battle revolves around an agreement made in 1969 between United Artists and the Tolkien estate. At issue launching off that 1969 UA movie deal is what other rights were included. WB has said in filings and counterclaims of its own that all this was settled in a 2010 re-grant, something the estate and publishers Harper Collins took issue with. Not that the two sides haven’t been talking “The parties have met and conferred for months in an attempt to resolve the issues in this motion, including two conferences on April 24, 2014 and April 30, 2014, but the parties were unable to reach a resolution,” says this latest paperwork in the case.
To the point of the disqualification motion, the 33-page filing says that Fourth Age’s law firm hired former United Artists in-house attorneys Alan Benjamin and William Bernstein as experts and potential witness for $10,000. The duo represented UA in negotiations concerning the matter. “Greenberg thereby placed itself in the position of representing not only the key witnesses on both—and opposite—sides of the contracts at issue, but also its adversaries’ former counsel who worked on the very contracts at issue,” it adds. “In doing so, Greenberg invaded the attorney-client privilege now held by MGM, which controls UA, positioning UA’s former lawyers to be adverse to the interests of MGM and UA’s successors-in-interest, Warner and Zaentz.” WB says the Tolkien estate should get new lawyers. The filing also notes that Greenberg are claiming the conversation swith Benjamin and Bernstein are privileged and are allegedly are not willing to turn notes of those convos to WB’s lawyers so they can see who said what.
WB are represented by Daniel Petrocelli of LA firm O’Melveny & Meyers. The Saul Zaentz Company are repped by Martin Glick of San Francisco firm Arnold & Porter LLP.
Deadline's Dominic Patten - tip him here.