Sumner Redstone should give a deposition, his ex-girlfriend’s attorneys say

The contentious dispute over whether Sumner Redstone is mentally competent could hinge on testimony from doctors, nurses, Viacom Inc. corporate officers -- and perhaps the mogul himself.

Attorneys representing Manuela Herzer, the media titan’s former companion, on Wednesday asked a judge to order that Redstone submit to a deposition as early as next week. Herzer contends that Redstone lacked capacity when he ordered her out of his house and his life last fall.

Herzer’s attorneys renewed their quest to depose the ailing 92-year-old controlling shareholder of CBS Corp. and Viacom after Redstone’s lawyers added Redstone to a witness list.

Los Angeles County Superior Court Judge David J. Cowan, who is overseeing the case, previously ruled that Redstone would not have to give a deposition because of his severe speech impediment.

But Herzer’s lawyers, in court filings, argued that circumstances have changed since Cowan decided the issue because of the prospect that Redstone could appear at an upcoming trial to establish whether Redstone is mentally competent.

Redstone’s name was included on a list of 35 potential witnesses, but he might not be called to testify, according to a person close to Redstone’s legal team who asked not to be identified discussing strategy.

Nonetheless, Herzer’s attorneys said that Redstone and his attorneys cannot have it both ways.

“Throughout this litigation, [Redstone’s] counsel have used Redstone’s health as both a sword and a shield,� Herzer’s attorney, Bert Fields, wrote in a motion filed Wednesday. “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.�

But at the same time, “Redstone has participated in multiple psychiatric and neurological examinations that counsel intend to submit at trial,� Fields said. Then, in late March, Redstone was added to the witness list.

Wednesday’s court filing ratchets up activity in the case that had been quiet for two weeks as lawyers representing the various parties worked behind the scenes to try to structure a settlement to avoid a highly publicized trial.

But settlement negotiations collapsed Monday, and the two sides now are preparing for the trial, tentatively scheduled for May 6.

Cowan has scheduled a hearing Thursday on the Redstone deposition request.

Herzer’s attorneys also suggested a compromise strategy to Cowan, which they said would spare Redstone of “the inconvenience and media circus of being compelled to come to court to testify,� according to the court filing.

They offered to videotape Redstone during a deposition, and then present that recording “at trial in lieu of his appearance.�

Redstone’s attorneys have insisted that Redstone, who struggles to speak, should not be put through the rigors of a deposition. On Wednesday, an attorney for Redstone said the pursuit of a deposition of Redstone was “pointless and cruel.�

“Forcing Redstone to sit for a videotaped deposition would constitute ... an unproductive assault on his dignity,� Redstone’s lawyer, Robert N. Klieger, wrote in a response.

Attempts by Herzer and her lawyers “to force this [deposition] upon some of Redstone’s age and condition are distasteful in the extreme,� Klieger said. “A deposition would be antagonistic to the very interests that [Herzer] purportedly seeks to protect.�

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