‘NCIS’ Trial: Will Les Moonves Take Witness Stand?

On Jan. 14, Donald Bellisario, the 77-year-old creator of two of CBS’ biggest hits, NCIS and JAG, is tentatively scheduled to go to trial against CBS in a lawsuit that contends the network owes him tens of millions of dollars from NCIS: Los Angeles — which he alleges is a spinoff of JAG and, as such, he was contractually entitled to a share of its revenue.

The reason the trial date isn’t etched in stone is that Bellisario recently revealed that he has a serious brain condition, and CBS is attempting to subpoena Bellisario’s medical records and depose his physicians. Bellisario is objecting to any delay, and a hearing is scheduled for Dec. 11 in Los Angeles Superior Court to discuss the issue. The judge also night cancel the trial if he accepts CBS’ position that Bellisario’s claims are time-barred.

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But in the meantime, with a possible high-stakes Hollywood trial just around the corner, both sides have begun prepping the cases that will be presented to a jury. Often, it’s the pretrial determinations on who will be testifying and what evidence will be admitted that ultimately influence which side emerges victorious. On Tuesday, both CBS and Bellisario made their motions on this front, fussing over which experts will take the witness stand and whether periodicals can be cited on the analysis of TV shows, contractual interpretations and more.

Here are just a few examples of the issues the two sides are fighting over on the road to a trial:

Which side gets portrayed as wealthy and greedy?

Earlier this week, an appellate court upheld a $319 million verdict against the Walt Disney Co. and in favor of the producer of the ABC series Who Wants to Be a Millionaire. It was the largest verdict in a profits case in Hollywood history, and one of the lessons from what happened was that juries are not hesitant to award huge damages to creative types who cry foul over “Hollywood accounting.”

Perhaps with this in mind, CBS is a tad sensitive about how it is about to be portrayed before a jury. The network has brought a motion to exclude discussion about the profits it has made on NCIS, JAG and NCIS: Los Angeles, as well as talk about CBS Corp.’s wealth. According to CBS’ motion:

“Indeed, Plaintiffs would have no reason for offering such evidence or making such statements other than to gain sympathy for the Plaintiffs, instill bias in the jurors’ minds against CBS by creating the impression that Bellisario is a ‘little guy’ standing up against a ‘big guy’ wealthy corporation, and suggest that CBS can afford a big verdict. It is likely that Plaintiffs will make reference to these topics in an attempt to portray the Plaintiffs as the financial underdogs in a battle against CBS, a wealthy, greedy corporation interested in nothing more than making a profit.”

But on the other hand, CBS believes it is entirely appropriate to discuss the enormous amount of money that Bellisario already has earned. CBS says that it intends to introduce the fact that he has already been paid in excess of $116 million for the shows. Here’s the argument on why that is kosher:

“The monies paid to Bellisario in his connection with his work on JAG and NCIS are in fact relevant, because they show that Bellisario has in fact already been paid for his work on JAG, and for the planted spinoff of JAG, NCIS. In other words, they are relevant to challenge Plaintiffs’ allegations that CBS has ‘exploited the Bellisario-created JAG/NCIS universe for its economic benefit’ by establishing that CBS has compensated Bellisario handsomely for his work on JAG and NCIS.”

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What kind of presence will Les Moonves have at the trial?

At trial, it’s always good to present evidence that even the other side knew what was happening was wrong. It’s even better when that evidence comes from the mouth of the opposing side’s most important executive. And so Bellisario’s attorneys wish to introduce statements made by CBS chief executive Leslie Moonves over the years.

Much of this case revolves around the meaning of certain words in Hollywood. Is NCIS: Los Angeles a “spinoff” or “sequel” of NCIS, which itself is a “spinoff” of JAG? Were there “elements” and “character” of JAG infused into NCIS: Los Angeles? The two sides disagree, and the answers might impact the jury’s interpretation of Bellisario’s 1992 contract for JAG.

Moonves allegedly made a statement at the 2003 TV upfront that substantial characters and elements in JAG were spun off into both NCIS and NCIS: LA. And as for whether Moonves takes a narrow or expansive view of the word, “character,” Bellisario points to a couple of press statements he’s given. In one quote referring to Survivor: The Australian Outback, Moonves said, “The setting for this show is a character in itself.” In another press statement, Moonves said about New Orleans, “No other city has such character — no other city is a character.”

Bellisario’s attorneys would like to use this. But on the other hand, they don’t want Moonves to actually take the witness stand where he might explain away his statements. Here’s how the plaintiff attempts this in legal papers:

“By refusing to present Moonves for deposition, CBS has forfeited the right to call him as a witness at trial. But CBS cannot be permitted to avoid the sting of Moonves’ admissions simply by refusing to present him for deposition. This Court should rule that Moonves’ statements are admissible at trial, despite CBS’ decision not to present Moonves for deposition.”

Will there be any discussion about where CBS wishes to take the NCIS franchise?

Last month, The Hollywood Reporter described plans for a new potential NCIS series, where characters will be introduced on NCIS: LA and then taken to a separate show. Will there be an issue of Bellisario money there? The outcome of the trial might in theory play into the calculus of the potential new show, or at least whether there will be a legal sequel to this trial.

But at the moment, CBS demands in a motion that there be no discussion about this:  

“CBS anticipates that Plaintiffs will point to CBS’ reported plans to launch a new NCIS series in order to confuse and prejudice the jury with purported evidence of another NCIS series in which Plaintiffs are not participating. This is not a permissible purpose. Any potential new, unproduced series is of no consequence to any factual issues for determination by the jury, and is irrelevant to whether CBS breached any ‘first opportunity rights’ or ‘passive payments’ obligation to Plaintiffs under the 1992 Term Deal with respect to NCIS: LA. Any evidence or argument relating CBS’ reported plans to launch a new NCIS series can only be intended to inflame the jury, and distract it from the issues before it, and poses a substantial risk of undue prejudice to CBS.”

Email: eriq.gardner@thr.com; Twitter: @eriqgardner