||||| From: ptsc Newsgroups: alt.religion.scientology Subject: Tom Klemesrud's Discovery Plan (Aug 8 1996) Date: Tue, 18 Dec 2001 13:12:12 -0500 Organization: ARS: Perhaps the Most Malignant Newsgroup on Usenet Message-ID: <8n1v1uo2ctqm6otjr4mev6rtbgpd39rm3p@4ax.com> X-Newsreader: Forte Agent 1.8/32.553 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-Complaints-To: newsabuse@supernews.com Lines: 471 Path: corp.newsgroups.com!propagator-maxim!feed.newsfeeds.com!newsfeed.direct.ca!look.ca!cyclone.bc.net!newsfeed.stanford.edu!sn-xit-01!sn-post-01!supernews.com!corp.supernews.com!not-for-mail Xref: newsfeeds alt.religion.scientology:1273489 From: tomklem@ix.netcom.com(Tom T Klemesrud ) Subject: Klemesrud's August 8th Discovery Plan Date: 1996/08/08 Message-ID: <4uc64m$df9@dfw-ixnews5.ix.netcom.com> organization: Netcom x-netcom-date: Thu Aug 08 2:48:38 AM CDT 1996 newsgroups: alt.religion.scientology [Repost: first one never made it to Netcom Shell news] Daniel A. Leipold, Esq. - S.B. #77159 Paul G. Szumiak, Esq. - S.B. #109982 Cathy L. Shipe, Esq. - S.B. #156453 HAGENBAUGH & MURPHY Suite 8200 701 South Parker Street Orange, CA 92668 Telephone: (714) 835-5406 Attorneys for Defendant, TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation, Plaintiffs, v. NETCOM ON-LINE COMMUNICATION SERVICES, INC., a Delaware corp.; DENNIS ERLICH, an individual; and TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES, Defendants. No. C-95-20091 BY FAX DEFENDANT TOM KLEMESRUD'S STATEMENT IN SUPPORT OF PROPOSED DISCOVERY PLAN PURSUANT TO RULE 26(f) ___________________________ Date: August 8, 1996 Time: 9:30 a.m. Before the Hon. Edward Infante Defendant TOM KLEMESRUD submits the following statement in support of his proposed discovery plan: Plaintiffs, RELIGIOUS TECHNOLOGY CENTER ("RTC") and BRIDGE PUBLICATIONS, INC. ("BPI") are part of a complex corporate hierarchy that constitutes Scientology. RTC is the entity charged with maintaining doctrinal purity in the Church. Church of Spiritual Technology v. United States, United States Claims Court 26 CL.Ct. 713; AFTR 2d (P-H) 5233; 1992 U.S. Claims Court Lexis 282 (1992). Scientology is a secretive organization which takes pains to resist examination of its history, doctrines and practices. This reticence is particularly significant here, where plaintiffs' stance thus far demonstrates a desire for a vastly circumscribed Court- approved discovery plan. That plan would effectively force defendants to accept without inquiry plaintiffs' claims, as found within their complaint, about, inter alia, the authorship, ownership, publication and registration of the works in question. While acceptance at face value of such claims might be the normal course in the normal case, this is not such a case; plaintiffs are part of an overall organization with a documented history of flouting laws which would prevent them from obtaining maximum economic advantage. See, i.e., Church of Spiritual Technology v. United States, supra, 26 Cl. Ct. at 715 (noting that an audiotaped session of a Mission Corporate Category Sort-out meeting conducted by several high-ranking Scientology officials in 1981 contained evidence of an intent to defraud the IRS). Defendant Klemesrud possesses some further evidence of this pattern of deceit already and steadfastly maintains his right and need to conduct discovery relevant to disclosing evidence which will render the claims of copyright infringement null and void. Plaintiffs' complaint alleges copyright infringement and trade secret misappropriation with regard to the "Advanced Technology," or works constituting Scientology's spiritual doctrine. By the Court's ruling of November 21, 1995, the remaining claims against defendant Tom Klemesrud, an internet service provider who operates a small, non-profit bulletin board system in North Hollywood, California, are limited to claims of contributory infringement. Before Mr. Klemesrud can be found liable on this theory, certain fundamental issues must be dealt with. For example, to prove copyright infringement, plaintiffs must demonstrate 1) their ownership of valid copyrights, and (2) the defendants' copying of constituent elements of the works that are original. (Feist Publications v. Real Time Service, 111 S.Ct. 1282, 1296, 499 U.S. 340, 361 (1991)). Defendant Klemesrud contends he has the right to conduct discovery of essential facts on which plaintiffs' case for copyright infringement is premised. Specifically, Mr. Klemesrud has a right to examine the authorship and originality of the works in question, as well as the transfer of rights to those works by the alleged original author of them to plaintiffs. Moreover, there are questions as to whether the registered works are identical to those documents allegedly excerpted and posted on the internet. The question of whether some or all of the purportedly unpublished documents have actually been published must also be explored, as must the validity of the registrations. Finally, Mr. Klemesrud has asserted affirmative defenses, not the least of which alleges plaintiffs' unclean hands in matters bearing upon this case, which merit pointed exploration. These are all entirely legitimate, focused areas of inquiry, and Mr. Klemesrud's ability to put on a competent defense is dependent upon his ability to examine them sufficiently. Clearly, discovery beyond that routinely allowed by the Federal Rules of Civil Procedure is necessary to the appropriate defense of this action. Defendant Klemesrud seeks permission to take the following discovery on the claims and defenses presented in this matter. 1. Up to 100 interrogatories. 2. 43 party and non-party depositions. 3. 100 requests for production of documents (exclusive of documents to be produced at deposition). 4. An unlimited number of requests for admissions (all parties have stipulated of the appropriateness of this). Specific discovery to be conducted. a. Proposed Depositions. 1. David Mayo. The first "Keeper of the Tech" with the most senior technical position in Scientology. Filed lawsuit alleging he wrote parts of OT 4 and 5. Areas of knowledge: authorship, ownership, publication. 2. Julie Mayo. Ex-Scientologist, wife of and assistant to David Mayo. Areas of knowledge: authorship, ownership, publication. 3. Merrill Mayo. Ex-Scientologist and former wife of David Mayo. Worked with the "advanced level" materials. Areas of knowledge: authorship, ownership, publication. 4. Vicki Aznaran. Headed RTC from 1984-1988, ex-Scientologist. Areas of knowledge: authorship, ownership, publication, transfer, registration. 5. Richard Aznaran. Husband of Vicki Aznaran, former high-ranking Scientologist. Areas of knowledge: authorship, ownership, publication, transfer, registration. 6. Pat Broeker. Along with his wife, Annie Broeker, he cared for L. Ron Hubbard ("LRH") when he was in seclusion in the early 1980s. Areas of knowledge: authorship, publication, transfer, LRH's mental capacity, physical capacity, etc. 7. Annie Broeker. Cared for LRH with her husband, Pat. Areas of knowledge: authorship, transfer, publication, LRH's mental capacity, physical capacity, etc. 8. David Miscavige. The current chairman of the board of RTC, he heads Scientology. He was the link between LRH and Scientology toward the end of Hubbard's life, while Hubbard was in seclusion. Miscavige notarized the 1982 agreement and arguably benefited most from the transfers of copyrights. Areas of knowledge: authorship, ownership, publication, transfer, registration, publication, security. 9. Ray Mitoff. The most senior technical person in Scientology. Apparently participated in forging of documents alleged to have been authored by LRH. Areas of knowledge: authorship, publication. 10. Mary Sue Hubbard. Still a Scientologist, she is the ex-wife of LRH who was jailed in the early 1980s. She is a beneficiary of the estate. Areas of knowledge: authorship, transfer, LRH's mental capacity, physical capacity, etc. 11. Gerald Armstrong. Former LRH confidante, he was on the Apollo with LRH and was at one time his archivist. Personally witnessed and participated in LRH signature forging parties. Areas of knowledge: authorship, transfer, publication, LRH's mental capacity, physical capacity, etc. 12. Geoff Walker. Took over from David Mayo as the senior technical person in Scientology. Areas of knowledge: authorship, ownership, publication. 13. Norman F. Starkey. Executor of LRH's estate and one time head of Author Services, Inc. ("ASI"), the "commercial" organization which oversaw the copyright registrations and through which LRH exercised control of Scientology. Areas of knowledge: authorship, ownership, transfer, mental/physical capacity of LRH, registration. 14. Terri Gamboa. Director and president of, and shareholder in, ASI; present at time of RTC's creation. Areas of knowledge: authorship, ownership, transfer, registration. 15. Pat Bryce. LRH's personal secretary in the late '70s and early '80s, assigned to ASI. Areas of knowledge: authorship, transfer, registration, capacity. 16. Julia Watson. Handled LRH personal matters within ASI in the early '80s. Areas of knowledge: authorship, transfer, registration, capacity. 17. Hana Whitfield. Personal nurse and aide to LRH while he was on the Apollo. Areas of knowledge: authorship, capacity, publication. 18. Andre Taboyoyan. Has given a declaration regarding drug use by LRH toward the time of his death. Areas of knowledge: capacity. 19. Kelly Miscavige. David Miscavige's assistant and wife. Handled traffic to and from LRH while David was at ASI. Areas of knowledge: authorship, capacity. 20. Marion Dendieu. Organization officer at ASI. Areas of knowledge: authorship, transfer, registration, capacity. 21. Lyman Sporlock. Intimately involved in the corporate setup and has personal knowledge of LRH. Areas of knowledge: ownership, transfer, registration. 22. Claire Loehwing. Handled personal material for LRH and was at one time commanding officer of the Commodore's Messenger Organization Int. ("CMO Int."), the organization responsible for the delivery (i.e., sale and consumption) of the advanced level materials in Scientology organizations worldwide. Areas of knowledge: authorship, publication. 23. Diana Riesdorf. Commanding officer of CMO Int. Areas of knowledge: authorship, publication. 24. Mark Yaeger. Current commanding officer of CMO Int. Areas of knowledge: authorship, publication. 25. Maria Starkey. Wife of and assistant to Norman Starkey. Assisted regarding trustee matters. authorship, ownership, transfer, mental/physical capacity of LRH, registration. 26. Susie Bennick. In charge of typing dictation of LRH Scientology communications starting circa 1982. Areas of knowledge: authorship. 27. Janadair Swanson. CMO Int. employee who handled LRH material. Areas of knowledge: authorship. 28. Mark Fischer. Corporate liaison in charge of CLIC; LRH ordered his office to be set up as an "idle wheel" to create distance between Scientology and LRH. Orders were screened through this organization from ASI before they went to Scientology. Areas of knowledge: authorship, ownership, transfer, registration. 29. Kima Douglas. LRH's nurse, she acted as a medical aide. Has testified in previous litigation in which theft of Scientology documents by ex-member Gerald Armstrong was at issue. Areas of knowledge: capacity. 30. Joseph Yanny. Attorney and ex-outside counsel for Scientology. He was the original attorney in the Mayo case, in which authorship of "advanced level" materials was at issue. Areas of knowledge: authorship, ownership, transfer, registration. 31. Gene Denk, M.D. LRH's personal physician and signatory on the certificate of death. Areas of knowledge: capacity. 32. Sherman Lenske. LRH's personal attorney, he purportedly has the original of the 1982 agreement in his safe. Areas of knowledge: authorship, ownership, transfer, registration. 33. Lawrence Heller. Attorney who, among other things, handled the probate of the LRH estate. Areas of knowledge: ownership, transfer. 34. Beverly Mustard. Notarized the signatures of Steven Glen Marlowe and Laura Marlowe on the transfer in 1982 from LRH to RTC. Areas of knowledge: ownership, transfer. 35. Stephen Glen Marlowe. President of RTC at the time of the 1982 transfer. Areas of knowledge: authorship, ownership, transfer, registration, publication, security. 36. Laura Marlowe. Secretary of RTC at the time of the 1982 transfer. Areas of knowledge: authorship, ownership, transfer, registration, publication, security. 37. Diane Voegeding. Former commanding officer, CMO Int. Areas of knowledge: authenticity of documents purportedly signed by L. Ron Hubbard. 38. Maude Castillo. Former "Keeper of the Tech." Areas of knowledge: authorship. 39. Allen Buchanan. Former New Era Dianetics for OTs (NOTs) auditor. Areas of knowledge: authorship. 40. Helena Kobrin. Attorney for plaintiffs herein, she injected herself into the controversy by 1) communicating with defendants prior to initiating the lawsuit and receiving their responses; and 2) making a prior attempt to eradicate the alt.religion.scientology newsgroup from the internet. Areas of knowledge: notice, contribution, facts relevant to affirmative defenses. 41. Natalie Fisher. Worked in LRH compilation unit in 1970s and 1980s. Areas of knowledge: ownership, transfer, registration, publication. 42. John J. Swanson. Handwriting expert who examined relevant documents purportedly signed by L. Ron Hubbard. Areas of knowledge: ownership, transfer. 43. Elizabeth Towles Svendsen. Handwriting expert who examined relevant documents purportedly signed by L. Ron Hubbard. Areas of knowledge: ownership, transfer. b. Proposed Document Requests and Areas for Investigation via Interrogatories and Requests for Admissions. Defendant Klemesrud perceives the need to obtain documents and verified responses relevant to the following areas at issue: 1. Copyrights. Complete copies of the copyrighted works, and each and every revision thereof; each and every certificate of registration and recordation for these works. Correspondence between plaintiffs and the copyright office regarding relief from the deposit requirements for works claimed to contain trade secrets. All documents supporting the "trade secret" nature of the works at issue. Complete copies of all documents which contain alleged infringements of plaintiffs' copyrights. 2. Authorship. All documents evidencing the authorship of the works in question, including contracts or other documents, if any, evidencing the work-for-hire status of any author other than L. Ron Hubbard. 3. Ownership/Transfer. Original contracts, including those between: L. Ron Hubbard and plaintiff RTC regarding the advanced technology; RTC and Norman Starkey (as executor of Hubbard's estate) concerning the "properties"; BPI and Norman Starkey (as trustee of Author's Trust) pertaining to the "works." The notary public journal entries of David Miscavige made with respect to documents signed by L. Ron Hubbard in connection with the sale and/or transfer of works or rights at issue. Plaintiffs' articles of incorporation. Last will, including all codicils, of L. Ron Hubbard. Document establishing the trust known as the "Author's Family Trust B." All licenses, whenever granted, pertaining to the "Advanced Technology," the "properties" and the "works." Any and all documents evidencing ownership of the works in question by RTC and/or BPI. 4. Publication. All documents evidencing the numbers of existing copies of the documents heretofore identified as "unpublished" and the numbers of persons who have been permitted access to them. 5. Notice. All correspondence between plaintiffs and any defendant in this action, including documents evidencing notice of claims of infringing activity to defendants Netcom and/or Tom Klemesrud. 6. Contribution. All documents evidencing knowledge by any defendant herein of infringing activity. All documents evidencing the material causing of, contribution to, or inducing of infringing activity by defendants Netcom and/or Tom Klemesrud. 7. Affirmative Defenses. Documents relevant to defendant's affirmative defenses, including those evidencing attempts by plaintiffs and/or their agents to remove the alt.religion.scientology newsgroup from the internet and/or to remove particular postings from alt.religion.scientology and/or other newsgroups. Documents containing plaintiffs' policies/procedures regarding applications for, and enforcement of, copyrights. Documents evidencing policies and/or plans to elicit Tom Klemesrud's cooperation in expelling Dennis Erlich from Klemesrud's Bulletin Board Service. Dated: August 1, 1996 HAGENBAUGH & MURPHY By____________________________ DANIEL A. LEIPOLD Attorneys for Defendant TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES