February 03, 2012 6:32pm PT by Alex Ben Block
Golden Globes Trial: Dick Clark Might Still Need to Testify in Person
Iconic producer Dick Clark, although retired for more than five years from the production company that bears his name, is at the center of the latest legal tug of war in the trial between the Hollywood Foreign Press Association and Dick Clark Productions over who controls broadcast rights to the Golden Globe Awards.
On Friday, the end of the second week of testimony in the federal court case before Judge Howard Matz, attorneys for the HFPA, led by Daniel Petrocelli and Linda Smith, asked the judge to rule that they could admit portions of a deposition Clark gave in the case at his home in Malibu on May 17, 2011 rather than having him come to court and testify live.
The legal team for DCP, including Bradley Phillips and Martin Katz, objected to the deposition being admitted as evidence in the trial, and instead pointed to a declaration Clark made more recently which was filed with the court about three weeks ago as the only evidence needed.
If the HFPA insists on having Clark testify, then DCP believes he should have to do it in person. They have offered to have Clark, who has been ailing in recent years, brought to court if necessary.
The judge is expected to rule for one side or the other on Tuesday when testimony in the case resumes. If he has to testify, Clark would likely appear in the middle of next week, as the case is expected to conclude the court portion by the end of next week.
The issue the judge will have to rule on concerns two statements that Clark made during his deposition. When asked if in 1993, when HFPA made a deal for DCP to produce the awards, Clark believed that his company needed permission from the press group to sign a deal with NBC to carry the show, Clark, according to a transcript obtained by THR, answered “yes.”
Clark was later asked if, “throughout the time that you and your company were producing the Golden Globes, you had to get approval form the Hollywood Foreign Press Association to continue to produce the show.” Again, Clark answered “yes.”
When asked if he remembered asking, or his company asking for approval from the HFPA when a deal and extension were negotiated with NBC to carry the show in 2001, Clark said, “I don’t remember.”
The HFPA sees this admission that Clark thought he needed HFPA approval to do a deal as important. That’s because much of the case hinges on whether DCP needed approval to do the 2001 deal, and subsequently to negotiate an extension with NBC again in 2010, which was done without consultation with the HFPA.
In his declaration, Clark’s memory about most things is vague but he does say that he remembers his executives telling him that as long as the show continues to air on NBC, they have the right to continue as the producer, and to represent the press group in negotiations with the network.
A source close to the HFPA says that the group doesn't want to drag Clark, who had a stroke in 2004, downtown to answer only a few questions; and prefer to let his words in the deposition stand as his answer.
A source close to DCP says that it is willing to bring in Clark to testify because he can’t actually remember what happened in 2001, which is the key to deciding the case, as far as they are concerned.
The second point that the HFPA legal team wants admitted into evidence from the deposition is when Clark says that when you negotiate a contract with only one network for broadcast rights, you are not going to get as good a deal as if you had an auction among multiple bidders.
Clark was asked: Did the fact that NBC was basically our only choice make it tougher for you to get a good deal with NBC? Clark’s answer: I would assume it would if you only have one customer.
The DCP lawyers say this is not relevant and is being taken out of context because elsewhere in the deposition Clark explains that CBS refused in 1993 to bid for Globes rights because of issues over the credibility of the awards program, ABC could not bid because of its contract to carry the Academy Awards and Fox (which went on the air in 1989) was not yet mature enough to be taken seriously as a bidder.
Separately on Friday there were two witnesses who did testify. The first was David Tenzer, a former talent agent who is also an attorney and business consultant. He was acting as an expert witness on behalf of the HFPA. Tenzer testified that a clause that DCP interprets to mean it can’t be dropped as producer as long as NBC is carrying the show, was actually taken from language developed in showbiz contracts to protect talent agents from being forced out of a deal they helped make after the contract was done. The HFPA side says DCP is misinterpreting the clause.
DCP then brought to the stand Mirjana Van Blaricom, who was president of the HFPA when the key original contract was signed in 1993 with DCP to produce the show, but left the group in a dispute shortley after and went on to form a competing group that puts on its own awards show.
Van Blaricom said when the 1993 deal was done it was with the full knowledge of the HFPA board and the membership; and that they approved the hiring of Dick Clark, as well as language that has been interpreted to mean DCP can continue with the Globes as long as the show remains on NBC.
Judge Matz had said last week he hoped testimony in the case would be over by Friday but it has dragged on. There are at least five other witnesses still scheduled to testify when the trial resumes Tuesday, including current HFPA president Aida Takla-O’Reilly.
After that, probably by next Thursday, the case will wrap up. Judge Matz will decide the case and plans to use the final time asking each side to answer questions to clarify certain points raised during the trial.
The judge may raise questions about some of the witnesses testimony, which appears to be possible perjury or in violation of terms of the contract between the parties.
For instance, former HFPA president Philip Berk testified that his lunch with CBS head Leslie Moonves was just an off the record conversation and not a negotiation, which conflicts with what Moonves said in a taped deposition. The DCP side wants the judge to say that Berk violated their contract, which did not allow the press group to discuss rights to the show with anyone without them.
After the trial, Judge Matz will rule, probably within 30 days; and then both sides will have the option to appeal the ruling if they lose.
However, unless there is an injunction, the winning side will be able to move forward as they wish. If the HFPA wins, that would likely mean an auction for the rights to the Golden Globes among all the networks and the hiring of another production company to help them put on the show.
If DCP prevails, then the contract it negotiated with NBC to continue carrying the awards at least through 2017 would be in force, and they would remain as the producer into the future.