No Redstone Deposition Yet But Dauman To Answer Questions About Health Care, Judge Says

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Manuela Herzer will not be getting Sumner Redstone to face lawyers’ questions over his mental capacity to make decisions about his health care any time soon. She will, however, get Viacom CEO Philippe Dauman, who is also Redstone’s current health care agent. In a ruling today by L.A. Superior Court Judge David Cowan, the media mogul’s ex-companion was denied her desired deposition of the Viacom founder based on “an unnecessary invasion of his privacy.” With a motion to dismiss likely coming from Redstone’s lawyers in early January, his personal estate planning information will also be kept private for now.

In a phased-in set of depositions, MTV EMA's 2015 - Red Carpet ArrivalsDauman will have to sit down with Herzer’s lawyers in the coming weeks to answer questions about conversations he said he had in a recent declaration with Redstone in L.A. The depo of the CEO will come if his declaration is used as a part of the January 4 motion to dismiss, as is widely expected. Though the judge was very clear to say that the questioning of the NYC-based CEO would only be focused on Redstone’s medical matters. “That’s all I care about,” said Herzer’s main lawyer Pierce O’Donnell after today’s hearing. However, the attorney added that because Dauman said in his declaration of last month that he had business discussions with Redstone, he wanted to know what they really talked about. O’Donnell said his team would go to NYC next month to take Dauman’s deposition.

Herzer’s lawyers will also get to talk to two of Redstone’s doctors – at some point and in a limited sense. That could see Redstone one day deposed but that is “premature” right now, said Judge Cowan on Monday.

“We believe in the evidence we’ve offered you proves Mr. Redstone lacks capacity,” O’Donnell said in court in downtown L.A. today after the judge circulated his 14-page ruling, which will become final later today. “Whether you’ll ultimately get to take Mr. Redstone’s deposition or not, I don’t know right now,” added the judge. Judge Cowan on Monday afternoon also set a new briefing schedule that will see the attorneys back in his courtroom on February 8 for a hearing on the motion to dismiss.

Last week, Judge Cowan granted the Viacom boss’ ex-companion and health care agent a hearing on the latest round in the battle of Redstone’s health, welfare, and who is and should be in charge of it. Claiming efficiency and seeking seven hours of videotaped depositions from Redstone, Herzer alleges that the removal of her as the person who makes the calls on the executive’s health care once he can’t is invalid. Under 24-hour care and with Viacom CEO Philippe Dauman now as Redstone’s health care agent, the media mogul’s side says he is making his own decisions and knows exactly what he wants.

While stymied by L.A. Superior Court Judge Clifford Klein on November 30 in her initial desire for urgent depositions and other moves on the 92-year old Redstone, Herzer and her Greenberg Glusker Fields Claman & Machtinger LLP lawyers were back in the docket last week trying to move things forward with slightly different information. Among the mid-December potentially explosive claims by Redstone’s former companion and health agent in the 200-page filing were that the scratchy signature on recent documents were not his and that Dauman’s sworn statements about the Viacom founder’s capacity are “riddled with falsehoods.”

Redstone’s lawyers Gabrielle Vidal, Amy Koch and David Hodge of Loeb & Loeb immediately filed paperwork of their own on December 14 to dismiss the claims, which they blasted. “Strip away the patina of celebrity, and what we have here is an abuse of the Court’s valuable time and resources by a self-interested litigant intent on disturbing the peace of a 92-year-old man,” their opposition filing said. Redstone’s camp says this is all about  “Ms. Herzer’s personal financial agenda.” A claim that Herzer, who was kicked out of Redstone’s home in October and replaced as his health care agent by Dauman, emphatically denies.

Viacom LogoWhile there is little argument that the aged Redstone has suffered some health setbacks in recent years like speech impairment, the questions at the heart of Herzer’s flurry of filings in recent weeks has always been mental and physical  capacity. Questions that have led to big Viacom and CBS shareholder Mario Gabelli making public his desire for clarification on Redstone’s real state.

With allegations of falsified signatures and other correspondence, Herzer is essentially claiming that the Viacom and CBS chief is no longer able to communicate nor comprehend what is going on around him. That is partially why she wanted an independent medical examination of the media mogul, as well as depositions by Redstone and others in the seeking of a sped-up discovery process.

According to documents put before the court by Redstone’s side, a recent brain scan of the Viacom founder revealed no indications of a stroke or other impairment.

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