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Sumner Redstone’s health is said to be frail, but the media mogul’s physical condition could be the subject of public scrutiny if a bid to have him deposed in a legal matter that has embroiled him, his family and the two large media companies he controls moves forward.

Manuela Herzer has filed a petition in Superior Court of the State of California, seeking to depose Redstone, 92 years old and the biggest shareholder in Viacom Inc. and CBS Corp. It is the latest flare-up in a legal case in which Herzer, once romantically involved with the executive, has embarrassed him and cast doubts upon his ability to govern the two media companies, which between them operate the CBS broadcast network, Simon & Schuster, MTV, Comedy Central and Nickelodeon.

“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,” said Herzer’s attorneys in a petition submitted to court. 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.”

A healthcare competency case brought by Herzer, who was ousted from Redstone’s household last year, was on the verge of being settled last week, but for undisclosed reasons is now set to continue. Under a proposed settlement bid, Herzer was to have received a substantial cash settlement, according to people familiar with the situation, while the elder Redstone was to make his daughter, Shari, his health-care proxy. Now that agreement appears to have been rendered moot by differences between the parties.

Herzer’s attorneys say recent disclosures in press reports about Redstone’s ability to take part in important decisions make it “absolutely essential” that he be questioned. The request asks that Redstone be deposed by Monday, April 18.