Comparisons to the Hundred Years’ War that intermittently raged in medieval Europe may not be entirely apt yet, but there were a series of legal moves on both sides of the country today in the hostilities over nearly 100-year old media mogul Sumner Redstone’s mental capacity that sure felt like a battle royale.
Eventually seeing an all but mutually agreed upon motion authorizing discovery denied, a judge in Los Angeles Superior Court this morning presided over lawyers for the elder Redstone and his former companion Manuela Herzer as they faced off again. Their joust was over the need to determine the true state of the 95-year-old Redstone, and whether he really know what’s the business being conducted in his name.
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At almost the same time today in Delaware, there were a series of redacted and sealed filings related to board member documents, executive text messaging and a recent video of Redstone as part of CBS and National Amusements’ slugfest over control of the still Les Moonves-run company and a possible re-merger with Viacom.
“Ultimately I feel like roadblocks are being thrown up to push this out beyond Mr. Redstone’s passing,” said Redstone primary lawyer and CBS board member Robert Klieger in LASC Thursday during a long hearing on the virtually agreed upon motion of some form of probing of the once Viacom boss’ mental state. “My client, and he has made this very clear, he wants this resolved while he is still alive.”
“Mr. Redstone has an amazing comprehension of what is happening,” Klieger told the court in a strong voice, defending his client’s ability to authorize the petition this spring that kicked off this latest round with Ms. Herzer, who was removed from Sumner Redstone’s home and soon afterwards around three years ago. “He has a very hard time speaking,” the Hueston Hennigan attorney did admitted,having previously stated that he took Redstone to a baseball game earlier this year.
Punctuating his terms, Klieger also noted a decline in the once much-feared billionaire’s ability to communicate since the video shown in closed court in 2016. “He usually uses an iPad to communicate and things usually have to be boiled down to simple phrases.”
“My goal is not to do anything that would embarrass Mr. Redstone,” Herzer’s lawyer Ronald Richards told the court in LA today, repeating the general tone of agreement that the parties had on the now discarded motion of discovery earlier this week. The attorney for Herzer, who herself was in court on Thursday, wants to talk to nurses and others around Redstone and have an independent medical exam of the mogul to determine capacity.
What Richards is not asking for, and what Team Redstone have made it very clear in their self described “soft opposition” that they will fight tooth and nail, is either a direct deposition of the nonagenarian or the release of a January 2018 video of a seemingly distinctly ailing Redstone shot on the iPhone of CBS board member Arnold Kopelson.
Attempting to guide proceedings on a full court calendar towards meeting the January 2019 trial start date for the matter and seemingly reluctant to authorize any more motions for discovery or otherwise, Judge David Cowan himself noted that when he saw the video of just over two years in a previous case brought by Herzer, Sumner Redstone was “struggling.” Judge Cowan, who dismissed Herzer’s first legal thrust of being tossed out of the elder Redstone’s life on My 9, 2016 after just one day of trial, noted that people “don’t tend to improve” from dementia.
A POV that no one disputed as it hung there in the air of the courtroom, where notions like a hypothetical “modified guardian ad litem” for Redstone and the future and current true role of NAI president and CBS and Viacom vice-chairwomen Shari Redstone were also bandied about.
After over an hour and a half of back and forth by all parties, including a mention of Redstone’s side saying they were informed of a recent filing by reading about on August 28 in Deadline, the judge called a 15-minute break and told the lawyers to go out in the hall to work out a real plan for discovery. The very brief return to court after that huddle revealed some loose ends remained and the lawyers were then hustled into an adjoining jury room to come up with specific dates for such filings, where laughter could be heard.
“Everybody having fun?” Klieger asked the onlookers in the courtroom when he walked out of the jury room after about half an hour. With some tinkering, Judge Cowan ending the three-hour affair and accepted the litany of dates over the next few months offered by the attorneys. The almost chummy lawyers noted that hadn’t agreed on a “summary judgment briefing schedule yet” but hope it could occurred in the late fall before the December 17 trial readiness hearing.
Meanwhile Klieger and alleged string puller Shari Redstone, who looks to be deposed in the Herzer matter, were also on the docket in Delaware on Thursday as a slew of filings hit the Court of Chancery there in what has partially become a simultaneous debate over the mental capacity of Sumner Redstone.
Getting a bit personal and probing into how much the elder Redstone really knows about what his lawyers say thy are telling him, National Amusements submitted it confidential “opposition to the CBS Parties’ Motion to Compel Production of Documents Relating to Klieger” and a “Declaration of Shari E. Redstone in Support of the NAI Parties’ Opposition to the CBS Parties’ Motion to Compel Production of Documents Relating to Klieger.”
Focused on notions of verification and leaning into that sealed January 2018 Kopelson footage the filings followed redacted paperwork where NAI is demanding that the court back East compel CBS to cease withholding requested relevant documents
“With respect to the few TigerText communications that survived destruction by the CBS Parties after they contemplated and commenced litigation, the CBS Parties have improperly redacted communications between members of CBS management and in-house counsel that likely are not privileged and in all events could not have been legal advice in aid of the special committee process under CBS’s own policies,” the NAI lawyers at Delaware’s Potter Anderson & Corroon LLP and NYC’s Cleary Gottlieb Steen & Hamilton LLP asserted (read it here).
“In fact, many log entries include personal counsel for Messrs. Moonves and Iannellio,” the paperwork said of the sexual misconducted accused and still being investigated CBS CEO and his trusted COO.
Back in late July, NAI accused CBS and its execs of destroying evidence through the use of the self deleting app and omitting mention of its use. CBS said it brought in TigerText after the massive Sony Pictures hack attack of late 2014 as a method to safeguard against internal communications getting spewed out to the world like what happened to the studio and its execs almost four years ago.
“CBS has, however, produced a relatively small number of TigerTexts that survived,” the 16-page NAI motion added today, noting that some of those communications supposedly contained discussions about “legal proceedings concerning Mr. Redstone” and A video of Mr. Redstone taken at his home by CBS Board member Arnold Kopelson without Mr. Redstone’s consent.”
“Those messages show that CBS management and in-house counsel used the ephemeral messaging application to scheme, plot, and speculate,” the filing today in Delaware states. “Thus, the TigerText communications provide crucial, real-time insight into the actions and motivations of CBS management, who were the driving force pushing for the dilutive dividend.”
Contacted by Deadline today, CBS declined to comment on the latest filings in the Diamond State – though they undoubtedly will through their own lawyers at some point in the not too distant future.
Back in the distant past, 1337 to be specific, the start of the Hundred Years’ War between England’s House of Plantagenet and the French House of Valois for reign over what is now France drew generations of royalty and rows and row of carnage. The motivation for that scrimmage that was almost forgotten by the time it was resolved in 1453 and dove into the internal strife of the War of the Roses in the island kingdom of what is now the UK.
“This case is this case and that case is that case,” said Judge Cowan early on today in the hearing in DTLA of the battle almost a continent away in Delaware “But I’m mindful of what some other court may have done in a similar matter,” the LA Superior Court judge added, with nods from all at the table.
Noting that Sumner Redstone will be 96-years old when the Herzer case goes to trial, if it does, Robert Klieger told Judge Cowan and others on Thursday that the media mogul “would like to have finality on his estate plans and trust before he passes.”
If today’s protracted crusades on the both the West Coast and the East Coast are any indication, Redstone may not get his wish.
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