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1Terry Gross (103878) Adam C. Belsky (147800)

2GROSS & BELSKY LLP

One Maritime Plaza, Suite 1040

3San Francisco, California 94111

PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

2It is a bedrock principle of American jurisprudence that clients may speak to their attorneys in

3complete confidence, and that the work of their attorneys shall similarly be protected from disclosure.

4This principle obviously applies equally for all criminal defendants, popular or unpopular, rich or poor,

5famous or obscure. There is no media exception to an attorney’s ethical duties of loyalty and

6confidentiality to his client. It is also a basic principle of American law to enforce agreements

7prohibiting the disclosure of confidential information. Here, however, the temptation of fame and

8fortune blinded one of O.J. Simpson’s attorneys, Robert Kardashian, and an author, Lawrence Schiller,

9who saw the opportunityofa bestseller beckoning. They conspired to insinuate Schiller into Simpson’s

10confidence and for Kardashian to make surreptitious tape recordings and notes about confidentialclient

11information, which he disclosed to Schiller. Both made fraudulent representations that they were co-

12authoring a book and that they would submit any manuscript to Simpson to ensure that it contained no

13privileged or confidential information. Both breached their fiduciary duties and confidentiality

14agreements, first by writing a book, and now for Schiller to direct and produce a television miniseries,

15just in production, based almost entirely on improperly obtained information purported to be attorney-

16client privileged communications or confidential defense team discussions.

17A TRO and preliminary injunction enjoining defendants from any further actions to participate

18in or transfer rights associated with the miniseries is essential to preserve Simpson’s rights, as the wide

19dissemination of information concerning confidential client conversations and discussions cannot be

20undone. There is no First Amendment prohibition against an injunction to prevent disclosure of

21information obtained in violation of confidentiality agreements or in breach of fiduciary duties. That

22Schiller previously published a book containing information in the miniseries is not a defense to an

23injunction, since the miniseries screenplay contains additional, undisclosed information. Also, courts

24can enjoin a wrongdoer from further and more widespread acts of disclosure.

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26Kardashian was one of Simpson’s lawyers during Simpson’s criminal trial. Schiller, a friend of

27Kardashian, called Kardashian immediately upon learning of the murders, and began encouraging

28Kardashian to surreptitiously take notes and tape record events. Gross Dec. ¶¶ 9(c), 10(c), 14(d), 17(a)

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PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

1& Exs. E, F, J, M. Near the end of the trial, Schiller encouraged Kardashian to represent he was co-

2authoring an “as-told-to” book from Kardashian’s point of view, with Schiller to do the writing.

3Simpson Dec. ¶¶ 2-3.

4At the close of Simpson’s trial, Simpson reminded his attorneys that, due to their fiduciary

5obligations, they could not disclose privileged communications or confidential client information,

6without written authorization. Simpson Dec. ¶¶ 5, 19 & Exs. A, F; Dershowitz Dec. ¶¶ 2-4; Scheck

7Dec. ¶¶ 2-4; Neufeld Dec. ¶¶ 2, 3, 7; Chapman Dec. ¶¶ 2-3; Douglas Dec. ¶¶ 2-3; Blasier Dec. ¶¶ 2-3;

8Thompson Dec. ¶¶ 2-3; Bailey Dec. ¶¶ 2, 5; Taft Dec. ¶¶ 3,8.

9Kardashian and Schiller each spoke to Simpson, and stated that they wanted to co-author a

10book from Kardashian’s point of view. They each agreed that they would not include privileged and

11confidential client information in any manuscript unless Simpson gave approval, and would submit any

12manuscript to Simpson prior to publication for review and deletion of such material. Both sent letters

13to Simpson that confirmed they were collaborating on a book. Simpson Dec. ¶¶ 7, 9-10, 12-15, 17,

1428-29 & Exs. C-D; Taft Dec. ¶¶ 4-12 & Exs. B-C, E-F; Neufeld Dec. ¶ 8. Schiller admitted that he

15utilized Kardashian to gain access to defense team members. Gross Dec. ¶ 14(e) & Ex. J.

16Schiller insinuated himself into a position of trust and confidence with Simpson, by assisting the

17criminal defense team on a number of matters, such as obtaining clean audio copies of tape recordings

18of interviews with key witness Mark Fuhrman; assisting Simpson during the trial in writing a book, I

19Want to Tell You; convincing Simpson that Schiller should co-author Simpson’s first-person account

20of the trial; signing an agreement concerning this book that he would keep confidential all interviews

21arranged by Simpson, and giving Simpson the right to change or delete any material in the final

22manuscript; and after Simpson’s acquittal, assisting Simpson in producing a video about the case and

23assisted in raising funds. Simpson Dec. ¶¶ 8-9, 11 & Ex. B; Douglas Dec. ¶ 9. Schiller since admitted

24that he took these actions for exploitation, to manipulate and ingratiate himself with Simpson and the

25defense team and to gain access, “keeping his eye on the prize.” Gross Dec. ¶¶ 10(b), 11(b), 12, 17(b)-

26(d), 19 & Exs. F-H, M, O.

27In November 1995, Kardashian informed Simpson that his publisher, Random House, to

28approve Kardashian’s book deal, needed a letter from Simpson, and sent a draft letter that would have

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PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

1granted an explicit waiver by Simpson of his privilege as to any communications between Simpson and

2Kardashian. Simpson refused to sign, as he was not willing to waive his privileges. Kardashian

3negotiated with Simpson’s attorneys and finally obtained a letter that did not authorize any waiver that

4he said would be acceptable to his publisher. Thereafter, Kardashian made repeated representations

5that he was writing a book with Schiller and would submit any manuscript for review, and never, until

6the impending publication of the book, stated anything otherwise. Simpson Dec. ¶¶ 14-22, 28-29 &

7Exs. D-I; Taft Dec. ¶¶ 5-14 & Exs. B-G; Neufeld Dec. ¶ 8; Douglas Dec. ¶ 4; Scheck Dec. ¶ 6.

8In late 1995 and early 1996, Schiller spoke to Simpson, stating that some lawyerson the defense

9team would not speak to him, and requesting that Simpson give these lawyers permission to speak to

10Schiller. Schiller explicitly represented and agreed that the interviews were for Kardashian’s book, that

11everything the other attorneys would say to him would be protected and not disclosed due to

12Kardashian’s responsibilities as Simpson’s lawyer, that no privileged or confidentialinformation would

13be published unless Simpson gave explicit approval, and that prior to dissemination he and Kardashian

14would submit any manuscript to Simpson for his review. In light of these representations, Simpson

15agreed to give members of his defense team permission to speak to Schiller, and thereafter complied

16with his obligations. Simpson never gave any attorney permission to disclose confidential or privileged

17information to Schiller. Simpson Dec. ¶¶ 23-27.

18Schiller admits that he interviewed eight attorneys on Simpson’s defense team, other than

19Kardashian. Gross Dec. ¶ 13(c) & Ex. I. All eight attorneys state that Schiller made agreements with

20them, in exchange for their agreeing to be interviewed, that the interviews were for a book he was co-

21authoring with Kardashian, and that he would submit any manuscript to Simpson for review and

22removal of any privileged or confidential information. Kardashian made similar representations. If

23Kardashian had not been a co-author of the book and if Schiller and Kardashian had not made such

24representations, these attorneys would not have agreed to be interviewed. Dershowitz Dec. ¶¶ 5-9;

25Scheck Dec. ¶¶ 5-11; Chapman Dec. ¶¶ 4, 6; Douglas Dec. ¶¶ 4-10; Blasier Dec. ¶¶ 4-6; Thompson

26Dec. ¶¶ 4-8; Bailey Dec. ¶¶ 6-11; Craig Dec. ¶¶ 3-4.

27In August 1996, when Simpson’s attorney learned that Kardashian’s book was nearing

28completion, he contacted both Kardashian and Schiller to obtain a copy. Both Schiller and Kardashian

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PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

1The StateBar ofCalifornia determined that Kardashiancommitted professionalmisconduct and

2violated Bus. & Prof. Code § 6068(e), suspending him for two years, based upon a stipulation by

3Kardashian. Neufeld Dec. ¶ 26 & Ex. H.

4In mid-May 2000, Simpson learned for the first time that Schiller was in the process of making

5a miniseries concerning Simpson’s trial, based on the information that Schiller had obtained while

6writing a book with Kardashian, and that Schiller was producing and directing. Simpson diligently

7acted to retain counsel in this matter and to bring this lawsuit. Simpson Dec. ¶¶ 37, 39.

8The screenplay for the Miniseries contains a substantial amount of information that purports to

9be privileged and confidential client information, i.e., conversations involving only counsel and

10Simpson, conversations involving only defense team members, and comments by counsel on defense

11strategy (approximately 152 pages out of a total of 193 pages). In addition, the Miniseries includes a

12large amount of such information that was not published in the Book (approximately 47 pages out of

13a total of 193 pages). Gross Dec. ¶¶ 6-7 & Ex. D; Sealed Belsky Dec. Ex. A. Last month, Simpson’s

14counsel sent letters to Schiller demanding that he cease and desist from any involvement with the

15Miniseries and requesting a copy of the screenplay for pre-publication review by Simpson. Schiller’s

16counsel responded that Schiller would not do so. Gross Dec. ¶¶ 3-5 & Exs. A-C. The Book was

17published to a limited audience; in contrast, the Miniseries is to be broadcast nationally by CBS

18Television in November, and will be seen by millions of viewers. Gross Dec. ¶¶ 22-23 & Exs. S, T.

20I. A PRELIMINARY INJUNCTION SHOULD ISSUE

21In determining whether to issue a preliminaryinjunction, a court must weigh two “interrelated”

22factors: (1) the likelihood that the plaintiff will succeed on the merits at trial; and (2) the relative interim

23harm that the plaintiff will likely suffer if an injunction is not issued compared to the likely interim harm

24to defendant if an injunction is issued. Butt v. State, 4 Cal. 4th 668, 677-78 (1992). “[T]he greater the

25plaintiff’s showing on one, the less must be shown on the other to support an injunction.” Id. at 678.

26Here, injunctive relief enjoining the dissemination of the Miniseries is essential, because once

27disseminated it will be impossible to undo the disclosures. See Point III, infra.

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PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

1the very highest character.” Lee v. State Bar, 2 Cal.3d 927, 939 (1970). “One of the principal

2obligations which bind an attorney is that of fidelity, the maintaining inviolate the confidence reposed

3in him . . . and at every peril to himself to preserve the secrets of his client.” Flatt v. Superior Court,

49 Cal. 4th 275, 289 (1994). See also Barber v. Municipal Court, 24 Cal. 3d 742, 750-51 (1979) (the

5fundamental right to counsel “embodies the right to communicate in absolute privacy with one’s

6attorney”); In re Jordan, 7 Cal. 3d 930, 940-41 (1972) (“protection of confidences and secrets is not

7a rule of mere professional conduct, but instead involves public policies of paramount importance”);

8Alkow v. State Bar, 3 Cal. 3d 924, 936 (1971). As the Supreme Court recently reemphasized:

9Attorneys have a duty to maintain undivided loyaltyto their clients to avoid undermining public

confidence in the legal profession and the judicial process. The effective functioning of the

10fiduciary relationship between attorney and client depends on the client’s trust and confidence in counsel. The courts will protect clients’ legitimate expectations of loyalty to preserve this

11essential basis for trust and security in the attorney-client relationship.

12People ex rel. Dept. of Corp. v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135, 1146-47 (1999).

13Under California law, an attorneyhas an express statutoryduty, broader than the attorney-client

14privilege, “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the

15secrets, of his or her client.” Bus. & Prof. Code § 6068(e); Goldstein v. Lees, 46 Cal. App. 3d 614, 621

16& n.5 (1975). “The attorney’s lips are forever sealed” as to information gained during the attorney-

17client relationship. Stockton Theatres, Inc. v. Palermo, 121 Cal.App.2d 616, 625 (1953).

18Here, there is substantial evidence that Kardashian breached his fiduciary duties to Simpson.

19The State Bar of California recently determined that Kardashian violated Bus. & Prof. Code § 6068(e).

20Kardashian is the primary source of the information in the Book and Miniseries concerning attorney-

21client conversations and defense team discussions. Kardashian induced other Simpson attorneys to

22provide information to Schiller by representing that he was the co-author of the book and that any

23manuscript would be submitted to Simpson’s attorney for review. Kardashian received compensation

24for his participation in the Book and promoted the Book. See Statement of Facts.

25Schiller and Project 95 are jointly liable for Kardashian’s breaches. A person who “intentionally

26causes or assists an agent to violate a duty to his principal is subject to liability to the principal.”

27Restatement (Second) of Agency § 312 (1958). Numerous California cases have applied this principle.

28Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327, 353 (1966) (parties who cooperated in another’s breach

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PLAINTIFF’S MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TRO AND RE PRELIMINARY INJUNCTION

1offiduciaryduties liable for their participation); Pierce v. Lyman, 1 Cal. App. 4th 1093, 1104-06 (1991);

2Certified Grocers of Calif., Ltd. v. San Gabriel Valley Bank, 150 Cal. App. 3d 281, 289 (1983);

3Morales v. Field, DeGoff, Huppert & MacGowan, 99 Cal. App. 3d 307, 314-15 (1979); St. James

4Armenian Church of Los Angeles v. Kurkjian, 47 Cal. App. 3d 547, 552 (1975); Gray v. Sutherland,

5124 Cal. App. 2d 280, 290 (1954); Restatement (Second) of Agency § 312, comment c (1958) (“A

6person who, with notice that an agent is thereby violating his dutyto his principal, receives confidential

7information from the agent, may be enjoined from disclosing it”).

8The evidence is equally clear that Schiller induced, participated in, and reaped the benefit of

9Kardashian’s breach offiduciaryduties. Schiller encouraged Kardashian from the start of Kardashian’s