The second day of Robert Kirkman’s mini-trial over profits from The Walking Dead started with fireworks over who knew what and when – and not over the millions of dollars the creator of the long-running and highly successful zombie apocalypse series claims AMC swindled out of him and other executive producers.
On a Tuesday morning that saw an attempt to jettison the testimony of Ken Ziffren fail, the hearing opened with a high-barbed debate between the lawyers and a clearly frustrated Judge Daniel Buckley over the Ziffren Brittenham LLP co-founder’s availability and introduction on new-ish material into the court. Specifically, the Hollywood legal heavyweight was supposed to only be able to appear in the downtown Los Angeles courtroom for a very rare expert-witness stint for a few hours Monday due to a previously scheduled medical procedure.
However, well into the morning yesterday, it became apparent Ziffren actually had plenty of time – a fact that was seemingly not communicated to the other side and the court in a timely fashion. That fact got under the skin of AMC’s lead outside counsel Orin Snyder and Buckley. Under scrutiny from the Los Angeles Superior Court judge, Kirkman’s top attorney Ron Nessim admitted that he knew February 8 that Ziffren’s surgery had been rescheduled and that the vaulted witness himself knew February 7 that he would be able to dedicate more time to the trial.
Despite their own sometimes charged back and forth Monday, Buckley also told Snyder this morning that he felt the Gibson Dunn & Crutcher lawyer was highly “effective” in his questioning of Ziffren on Monday, despite being “rushed” to meet a timeline that was actually redundant.
“Bottom line, whether this trial goes one more, day, one more week or 20 days, we can’t have that, it has to be upfront candor with me,” the judge reprimanded to Nessim after challenging the embarrassed lawyer on when he knew that Ziffren could stay longer on the bench trial’s opening day, and even appear today if necessary.
Things only simmered down for a few minutes before another legal dumpster fire broke out in what is expected to be a two-week affair. It came when Nessim was cross examining Ziffren and referred to Kirkman’s initial 2009 contract. That reference sent AMC’s hired guns shooting off about “confidential terms that are competitively sensitive to our client.”
With a boatload of declarations and other documents still sealed in this case and the particular contract in question actually long since made semi-public in the Darabont case, Gibson, Dunn & Crutcher’s Ilissa Samplin stated to the court that “our position is the whole contract is high confidential …we still remain our position that this document should be confidential.” As Nessim shifted tactics to the contract of Fear the Walking Dead co-creator David Erickson, Samplin made a poignant point that the Kirkman paperwork published in the long-simmering Darabont matter was in fact heavily redacted.
All of which was not a good look for the plaintiff’s side in front of Buckley on a day with almost all eyes on the clock and the calendar. Later, attorneys on both sides sparked off again over AMC’s desire to kept what they claim are trade secrets and budget numbers out of the public eye, even though the figures in mind are from 2011. In court, AMC changed its mind on the 9-year-old figures, but wanted to make sure that 2012-2020 numbers were not automatically included.
The ongoing dust-up over what declarations, such as Ziffren’s, was raised again with the two sides agreeing to confer Wednesday, when the courts are closed for the Lincoln holiday, and bring an agreement to the court Thursday for Buckley to rule on.
With that in mind, and a slew of objections, Tuesday continued with Nessim questioning a relatively scrupulous Ziffren over the finer points and complexities of entertainment contract creation, such as the contested Modified Adjusted Gross Receipts calculations, license fees and “unprecedented” sleight of hand deviations that the plaintiffs allege a “self-dealing” AMC made.
“No disrespect to Mr. Ziffren and his long career, but contacts mean what they say,” declared Snyder in a summation statement to the court after Ziffren had left the stand just before 11 AM today. “Mr. Ziffren acknowledged that the imputed license fee was in bold font and no one objected,” the Gibson, Dunn & Crutcher attorney also said. “Mr. Ziffren testified and counsel’s interpretation of the case is that no one ever agreed to MAGR. But if there is no MAGR, there is no enforceable contact to sue on.”
“This is a simple case,” concluded Snyder bluntly before Buckley heard from Snyder’s partner Scott Edelman on why Ziffren’s testimony should be stricken due to bias.
Focusing on contract interpretation disputes between Kirkman and AMC, this mini-trial is born out of the potentially pricey complaint that the TWD creator and fellow EPs Gale Anne Hurd, David Alpert made against the home of Breaking Bad back in August 2017. That case, which was birthed in no small part out of ex-TWD showrunner Frank Darabont and CAA’s $300 million profits participation lawsuit that they launched in late 2013, also included former TWD showrunner Glenn Mazzara and EP Charles Eglee, who is now the showrunner of Starz’s American Gods.
The multi-tiered East Coast-based trench warfare case, which Snyder also is taking point on for AMC, is finally set to go to trial in New York City in June. Regardless of which side emerges triumphant in L.A., the results of this mini-trial will likely be a significant determining factor before New York Supreme Court Justice Joel Cohen even pounds the opening figurative gavel.
Like Monday, the looming Darabont case came up on a few occasions in ongoing questioning of Ziffren by attorneys on both sides. Also, like yesterday, Kirkman, Hurd (who is client of Ziffren’s firm), Alpert and the spouse of Eglee were all in the second-floor Spring Street courtroom on Tuesday observing the proceedings. One of Darabont’s law team, Kinsella Weitzman Iser Kump & Aldisert’s Chad Fitzgerald, was also sitting in the pews, as were a number of AMC representatives on the other side of the room.
EPs Kirkman, Hurd and Alpert are all set to be individually called as witnesses over the next week or so before Buckley. Additionally, Robert Getman, a former lawyer of Darabont’s, plus ex-AMC Business Affairs SVP and current Blumhouse TV exec Marci Wiseman and former AMC president and current Fox Entertainment CEO Charlie Collier, are on the mini-trial witness list.
Breaking for lunch at the end of this morning, the trial is expected to hear from Kirkman’s lawyer Lee Rosenbaum. who represented him in the 2009 talks and agreement with AMC and talks over spinoff Fear The Walking Dead.
For those interested in the small-screen drama at actual issue, the renewed Walking Dead returns for the second half of its 10th season in less than two weeks. A new spinoff The Walking Dead: World Beyond is coming in April, and TWD original cast member Andrew Lincoln is heading to the big screen in the first of several Rick Grimes movies …though at the rate these case have moved through the courts, those TWD projects may have come and gone before these cases are resolved.
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