Filed yesterday --------------------------------->

Harold J. McElhinny (Bar No. 66781) Rachel Krevans (Bar No. 116421) Stephen P. Freccero (Bar No. 131093) Ronald P. Flynn (Bar No. 184186) Jason A. Crotty (Bar No. 196036) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Jana G. Gold (Bar No. 154246) MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: (650) 813-5600 Facsimile: (650) 494-0792 Attorneys for Defendant DENNIS ERLICH UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RELIGIOUS TECHNOLOGY CENTER, a California non-profit[sic] corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit[sic] corporation, Plaintiffs, v.

DENNIS ERLICH, an individual, Defendant.

No. C-95-20091 RMW (EAI) DECLARATION OF DENNIS L. ERLICH'S IN SUPPORT OF MOTIONS IN LIMINE Pre-trial Conference: April 22, 1999 Trial Date: May 4, 1999 Ctrm: Hon. Ronald M. Whyte AND RELATED COUNTERCLAIMS I, Dennis Erlich declare and state:

1. I am the defendant and cross-complainant in this action. This declaration addresses the central feature Scientology practice which claims to provide a form of spiritual absolution and ascension through "confession," the maintenance of various files containing information based upon these confessions by numerous Scientology entities, and the expectation of confidentiality associated with these confessional activities and files. I have personal knowledge regarding these subjects based on 14 years as an ordained Scientology minister, including 10 years in an organizational position known as Cramming Officer (a tenure which includes 4 years as a "Chief Cramming Officer"

in Scientology's highest technical organization), responsible for ensuring the proper administration of Hubbard's confessional "tech" by others.

2. Auditing is a central practice of Scientology. Scientology is premised on the belief that through proper auditing (and only through proper auditing), an adherent can reach the state of "clear," that is, a state in which one is free of the "reactive" (irrational) mind. In an auditing session, the person being audited (known in Scientology as a "preclear" or "pc") holds on to a pair of galvanized cans attached to a crude lie detector type device, known as an "e-meter." The preclear is asked a series of questions about feelings and events, and is routinely asked to confess any transgressions of thought or deed.

An example of the type of question that would be asked is "what have you done that your wife/husband/parents nearly found out about." If the needle on the e-meter reacts to the question and registers a "charge," the person being audited is considered to be "withholding"

and is not permitted to progress until he or she confesses to the thought or deed that is supposedly being withheld. The auditor makes detailed notes of what the preclear is asked, what he has confessed and how the meter reacted throughout. When the person has confessed the transgression and has been questioned in detail about the thought or act, and the needle on the e-meter no longer registers a reaction associated with the thought or experience, the preclear is said to be "released from" that particular experience. The person is then asked if there is an earlier similar experience, and the whole process is repeated. Scientology auditing does not stop with confessions limited to the preclear's conscious activities. Instead, in order to progress along Scientology's "Bridge to Total Freedom" (the state of "clear"

and beyond) the preclear is required to confess and "clear"

experiences from infancy, birth, in utero, and past lives. One cannot progress in Scientology without doing so.

3. Scientology maintains extensive files on individuals that are associated with it. For example, during each auditing session, the auditor is required to maintain detailed notes on a worksheet which records the information discussed. These worksheets are placed into the person's "preclear" or "pc" file (also known as a "case" or "confessional" file). I attended the deposition of Mr. McShane and heard him admit that the materials in someone's "preclear" file are confidential and subject to privilege.

4. Confessions made during auditing are made under conditions promising confidentiality. Part of the Auditor's Code, which auditors are required to learn verbatim, states that "I promise not to use secrets of a preclear divulged in session for punishment or personal gain." In my experience, preclears are indoctrinated to believe that confessions made or elicited during an auditing session are kept confidential.

5. Despite this expectation, and in accordance with numerous Hubbard policies, after the session an auditor is required to report any transgressions or breaches of Sceintology's numerous codes and policies in writing to the preclear's "ethics" file. ("ethics" in Scientology does not have its ordinary meaning, but rather provides a measure of the Scientologist's loyalty to L. Ron Hubbard and to the Scientology organization -- the stated purpose of "ethics" in Scientology is to eliminate "counter-intention," that is any intention opposed to Hubbard's doctrines).

6. Scientology also maintains a file on each of its members called an "ethics" file, which is supposed to contain material related to the person's alleged "out-ethics" (incorrect, according to Hubbard) behavior and transgressions against Scientology. Although most preclears do not know or understand this, an auditor is required to make special note of any potential "ethics" matters that come up during an auditing session (for example, needle readings that indicate negative thoughts about L. Ron Hubbard or transgressions of policy) and report them to a Case Supervisor. The information is then transferred into a person's "ethics" file. I heard Mr. McShane state in his deposition that the information in a preclear file is protected, but that the information in an "ethics" file is not. In my experience, much of the information in an "ethics" file is taken from the preclear file, and more specifically, from confessions made under the promise of confidentiality.

7. There are other confession-based "spiritual processes" within Scientology designed to relieve the influence of the reactive (irrational) mind, that are separate from auditing, but that are also considered to be confidential. The first is called an O/W write-up ("overt and withhold"), and arises as part of Scientology's "ethics"

regime. An "overt" is a transgression, and a "withhold" is failure to admit a transgression. When a Scientologist does an act or expresses a thought that might be considered to be counter to Hubbard's intention, he or she can be placed in a "lower ethics condition." For example, someone who questions or disagrees with a doctrine of L. Ron Hubbard would likely be placed in a condition of "doubt." Someone who fails to achieve the targeted production for their organization might be placed in a condition of "treason." A Scientologist in a lower ethics condition is often ordered by an Ethics Officer, among other things, to go through a process called writing up "overts and withholds" to help determine and ameliorate the reason for the lower condition. The confessions made in an O/W write-up, while not formal auditing, are according to Scientology policy, considered to be "case actions" to be filed in the confessional folder and considered to be confidential.

8. A Scientologist is required to undertake various activities to overcome the ethics condition, besides O/W write-ups, in order to be allowed to continue to receive auditing or attend courses. The worksheets from these other actions are supposed to be routinely transferred to the preclear's confessional folders according to Scientology policy.

9. Another type of written statement that would be found in the preclear file is the "Success Story." A person cannot complete any action in Scientology or progress to the next action without writing a glowing "Success Story" praising the gains they have made. Part of the graduation procedure from any level requires the parishoner to be sent to the Examiner who reads the Success Story and if it is glowing, puts the person on the e-meter and asks what is called the "Key Question," that is, "would you like others to have similar gains to yours?" The person cannot "pass" unless the e-meter needle "floats."

The Key Question and the person's answer, as well as the e-meter reaction is always noted on the Success Story form. If the person does not write a glowing success story, he is sent to the Department of Review for correction at his own expense. These Success Stories are routinely filed in the preclear folder, and are considered part of the confessional procedure. Although Scientology often asks the PC for permission to publish these Success Stories, the preclear's acknowledgement must be noted on the form.

10. There is only one type of Scientology confessional practice that I can think of that is not considered to be confidential, and that is a process called a "Security Check." (Sec Check). A Sec Check is an abusive interrogation session using the e-meter. It is used to coerce Scientologists who want to leave, or who have other "counter-intentions" back into the fold. It is a key datum of Scientology "tech" that anyone who wants to leave or is complaining has committed hidden crimes, overts and withholds. A person exhibiting such manifestations is required to be interrogated by using Sec Check procedures until the transgressions are confessed and the person recants. The Scientologist who undergoes a Sec Check is always warned at the beginning of the session that the information obtained during the Sec Check is "actionable," and can be used against him or her. Such a sec check session is always started with the phrase "I am not auditing you." These things are always noted in the session worksheets.

11. Additionally, when a person has confessed a transgression either in an auditing session or an O/W write-up, that material is reported to the ethics file and often used in preparing further questioning under the guise of an actionable Sec Check or ethics action. In other words, if a person wanted to leave or was in "ethics trouble," a transgression first confessed in an ostensibly confidential setting would often be questioned and required to be disclosed again under conditions to avoid the obligation of confidentiality, and therefore to be used against him if he did not recant.

12. Except for "Sec Check" worksheets where it can be clearly shown that I had not earlier confessed the same material under conditions promising confidentiality, and with the additional exception of routine staff member reports, I would consider the information in my "ethics" file to be confidential, and subject to the same privilege as material in my preclear file.

13. It should also be noted that in discovery the plaintiff failed to turn over either my ethics files or my pc files, claiming that they had been lost. Instead what they produced were selected copies of discreditable materials culled from both folders.

14. Although Mr. McShane acknowledged that Scientology considers material in a person's preclear file to be confidential and privileged, it should be noted that Scientology considers that a person who has been declared a Suppressive such as myself (and I would presume that all of the witnesses who will testify for me at trial will have been declared Suppressive) is no longer entitled to such protection. Accordingly, as a matter of Scientology doctrine, plaintiffs would consider themselves to be entitled to use information culled from a confessional setting (during auditing or otherwise) to impeach or discredit a witness.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of March at Glendale, California.

Dennis L. Erlich Rev Dennis Erlich * * the inFormer * *
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