1:42pm PT by Eriq Gardner
Sumner Redstone's Ex Pushes for Deposition of Media Mogul
With settlement talks hitting a late stumbling block, Manuela Herzer's attorneys are upping the pressure by bringing forward an application for a deposition of Viacom and CBS controlling stakeholder Sumner Redstone.
A week ago, the healthcare case brought by Herzer over Redstone's mental competency looked all but finished, but now comes word that Redstone himself will be testifying at the still-scheduled May trial.
"Throughout this litigation, Counsel have used Redstone’s health as both a sword and a shield," states the application filed in Los Angeles Superior Court. "As a shield, Counsel have argued that, due to Redstone’s health and privacy concerns, Petitioner should not be permitted to depose him or take other pre-trial discovery. Yet, simultaneously, as a sword, Redstone has participated in multiple psychiatric and neurological examinations that Counsel intend to submit at trial, and, most recently, Petitioner has been informed that Redstone will be testifying at trial. Counsel cannot have it both ways. Their position that Redstone can elect to testify at trial, but not give a deposition, is an abuse of the litigation process."
What's more, the dispute is now heading into nuclear territory with word from Herzer's camp of "recently discovered evidence establishing that Counsel, themselves, had concerns about Redstone's capacity as far back as April 2015."
What is referenced is a April 2015 letter sent by noted estate planning attorney Adam Streisand to Herzer as well as Sydney Holland, one of Redstone's other former girlfriends. The letter appears to be in preparation for a story ("Who Controls Sumner Redstone?") that would be published in Vanity Fair the following month and references the tensions between Redstone and his daughter Shari.
"The main concern by Viacom/Leah et al. is that if Sumner shames Shari publicly that Shari will seek to establish a conservatorship over Sumner," writes Streisand. "If she does that, then his current condition will become public and Viacom will have to remove Sumner as an officer/director and stop paying him compensation. There are possible other consequences but leave that aside for the moment. They don't want to poke the bear right now."
"Leah" is probably Leah Bishop at Loeb & Loeb, which has been representing Redstone against Herzer in this healthcare fight.
Streisand then adds in his letter, "Leah said she will not participate in the meeting Saturday if either of you [Herzer and Holland] is present because she does not want to be accused of allowing anyone to unduly influence Sumner even by your presence."
The discussion of what Sumner Redstone would tell Vanity Fair seems to have been the primary concern. Streisand wrote that Leah wouldn't be "putting her law license on the line to lie for anyone," later discussing how she drafted the estate plan and would want it to be upheld.
In pushing for a new deposition of Redstone, Herzer's attorneys, led by Pierce O'Donnell, are telling the judge, "If Counsel have been publicly representing that Redstone is mentally fit while privately harboring doubts, Petitioner cannot reasonably rely on statements by Counsel in lieu of deposing Redstone."
As for the possibility that Redstone himself would be taking the witness stand at trial, that one comes from a March 28 e-mail sent by attorney Robert Klieger — recently added to the Redstone legal team — where he wrote, "In reliance upon the Court's decision that Mr. Redstone will not be required to sit for deposition, we do intend to present Mr. Redstone as a witness at trial."
In January, the judge in the case allowed Redstone to be examined by Herzer's medical experts, but denied an attempt to depose him. Herzer's camp is making a new run here. The development obviously forebodes a lack of settlement in this case.