On Christmas Eve, Judge Feess in the Warner Brothers / Fox dispute over the movie rights to the noir comic The Watchmen gave Fox what might be a nine-figure Christmas gift: granting, in part, Fox’s motion for summary judgment. You can read a copy of the initial order, which Judge Feess has promised to expand upon, over at Corante’s Copyfight.

If you are not familiar with the dispute, here is all you need to know if you don’t want to read my prior post): Fox initially purchased the movie rights to Watchmen, was unable to do anything useful with them and so entered into a series of complicated agreements with a producer, Lawrence Gordon, and his company, agreements which, arguably, preserved Fox’s distribution rights for the movie, and provided for a number of options and scenarios that were never exercised (even though many of them could have been exercised).

Initially, Judge Feess ruled that a jury trial would be necessary because, even though the dispute rose entirely under legal interpretations of undisputed documents, there were a number of factual ambiguities that a jury would have to decide before the court could rule on the legal issues. Trial is scheduled to begin this month.

Such was the case until, as Judge Feess’ order describes it,

Gordon’s testimony regarding the facts, circumstances, and events surrounding the negotiation of the 1994 agreements would have been of assistance to the Court in evaluating the objectives of the parties at that time. However, Gordon refused to testify on that subject during his deposition because he supposedly could not separate what he knows based on his own recollection from what he learned from counsel. Gordon’s counsel therefore asserted the attorney/client privilege and instructed Gordon not to answer any questions on the subject.

There are a couple of potential explanations for Gordon’s lawyer recommending Gordon assert privilege to avoid discussing the most pivotal issues in the case, including:

  • A genuine concern that, in the middle of the deposition, his multi-millionaire successful businessman client would blurt out damaging and heretofore privileged conversations with his attorney;
  • A concern that every arguable waiver of privilege necessarily translates into a complete and total waiver of attorney-client privilege for every discussion relating to the case;
  • A reflexive expression of years of habitually frustrating opponents depositions with each and every potentially viable objection; or,
  • A fit of madness.

Judge Feess was, shall we say, unimpressed with this tactical decision:

The Court takes a dim view of this conduct and questions whether the assertion of the privilege was proper. Moreover, the assertion of the privilege does have a consequence: having now reached a decision based on the record before it, the Court will not, during the remainder of this case, receive any evidence from Gordon that attempts to contradict any aspect of this Court’s ruling on the copyright issues under discussion.

Thus, with a single obtuscatory tactic at a deposition, Gordon’s lawyer was able to permanently foreclose Gordon from contesting Fox’s version of the facts, resulting in there being no further genuine issues of material fact, making summary judgment appropriate.

I was not there and I do not know what potentially privileged information Gordon and his lawyer were trying to keep secret.

I do know, however, that one of the worst things a party to a lawsuit can do is to refuse to answer a question in discovery, at a deposition or at trial. You might as well paint a target on your back. A half-decent trial lawyer will have no trouble forging the molten steel of a refusal into the weapon of the trial lawyer’s choice.

And that’s the best case scenario. The worst case scenario is for the court to conclude that you are trying to play games with the legal system and to destroy your claims accordingly.