December 06, 2011 2:39am PT by Eriq Gardner
Mystery Packages, 'Forged' Documents: Warner Bros. Fights Lawsuit Over 'Last Samurai'
When The Last Samurai, starring Tom Cruise, was released in 2003, it was a big success, raking in more than $456 million in worldwide box office. But almost immediately after the film came out, Warner Bros. had a problem on its hands in the form of two brothers, Aaron and Matthew Benay, who claimed they had also authored a WGA-registered script entitled "The Last Samurai." The brothers pushed a lawsuit claiming that Warner Bros. had taken their ideas without paying them.
The case was later dismissed on summary judgment, then revived on appeal at the Ninth Circuit. But the real intrigue was occurring behind the scenes. Just days before the first hearing upon remand earlier this year, the parties and their lawyers received a mysterious letter from an anonymous person. The letter seemingly contained smoking gun evidence of how the film's producers had seen the Benay brothers' script before making the blockbuster.
Now that the lawsuit is back on, the mysterious letter could play a key role in the outcome of the case.
When the Ninth Circuit revived the Last Samurai case in June 2010, it was a big moment. The decision, along with another that summer, has made it easier for writers pursuing implied breach of contract lawsuits against Hollywood studios over allegedly stolen ideas.
But plaintiffs in these types of cases still have to demonstrate certain facts to ultimately win.
Among the most important is a concept called "privity," or knowledge of something private that is shared between parties. In the Last Samurai case, the question has become whether Warner Bros, and its producing partners (including Bedford Falls) had sufficient knowledge of the Benays' script to have entered into a contract with the brothers that implied compensation if the material was later used.
Warner Bros. says the fatal flaw of the lawsuit is there was no privity. As such, the studio is attempting to strike down the suit once again on summary judgment on the theory that the plaintiffs can show no evidence that Warners saw the script before the film was made.
But alas, there is that mysterious letter. What's in it?
The letter provides the missing evidence the could potentially doom Warner Bros. in the case because it attached several key documents. One is a May 2000 e-mail purported to be from Warner Bros. vp Kevin McCormick to Last Samurai director/producer Ed Zwick describing how he had just received a script submission entitled "The Last Samurai" from a man named Dan Cracchiolo, an employee at Silver Pictures Management, which had offices on the Warners studio lot and had a first look deal with the studio. Another is an attachment of a fax purportedly from Zwick that contains excerpts from the Benay script.
Pretty damning stuff. That is, if it's real.
Warners has a history with mysterious packages delivered to its doorstep. A few years ago, the studio got a large package from an anonymous sender that contained documents related to its fight to hold on to rights to the Superman franchise. Later, it turned out that the documents were stolen from its legal arch-enemy, and Warner Bros. tasked its star litigator Daniel Petrocelli with figuring out a way to make the material admissible in court.
Now, another mysterious package holds the prospect of hurting the company, and it's up to Petrocelli to have these Last Samurai documents ruled inadmissible. Quite an ironic twist of events. In a motion for summary judgment filed on Friday, Petrocelli argues that the evidence has to be thrown out because it can't be authenticated.
The studio has submitted a declaration from Erich Speckin, an expert in forensic document analysis, who submits that the attachments are "forgeries." As proof, Speckin points to Zwick's signature in the faxed document and compares it to another document in the court record, finding an exact reproduction. As a result, Speckin concludes it must be a copy-and-paste job. As to the McCormick e-mails, Speckin determines they're fake by pointing to wrong timestamps and the use of the same AOL e-mail templates with supposedly similar printing errors.
The Benay brothers have argued that the documents can indeed be authenticated, pointing that the contents are consistent with the facts of the case. Warners says it doesn't matter. "Defendants are unaware of any case that holds that a document of anonymous origin can be authenticated solely by reference to its contents," argues Warners' motion for summary judgment. "Such a document is inherently suspicious..."
There is one man who would have been able to put this to rest this once and for all. That would be Cracchiolo, who has emerged as the central figure in this case -- the man who allegedly was enthusiastic about the script and attempted to see if Warner Bros. was interested. David Phillips, the agent for the Benays, testified that Cracchiolo had once told him that Warner Bros. had decided to pass on the Benays' version of "Last Samurai."
Unfortunately, Cracchiolo won't be coming forward and Warner Bros. says that Phillips testimony is hearsay. Why?
Cracchiolo died in 2004.