||||| From: nospam@!.com Newsgroups: alt.religion.scientology Subject: Dandar 5-30-02 vol6 (reformatted) X-Newsreader: Forte Agent 1.91/32.564 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Lines: 7507 Message-ID: NNTP-Posting-Host: 12.225.29.45 X-Complaints-To: abuse@attbi.com X-Trace: rwcrnsc53 1023843383 12.225.29.45 (Wed, 12 Jun 2002 00:56:23 GMT) NNTP-Posting-Date: Wed, 12 Jun 2002 00:56:23 GMT Organization: AT&T Broadband Date: Wed, 12 Jun 2002 00:56:23 GMT Path: news2.lightlink.com!news.lightlink.com!gail.ripco.com!newspeer2.tds.net!HSNX.atgi.net!news-hog.berkeley.edu!ucberkeley!newshub.sdsu.edu!west.cox.net!central.cox.net!cox.net!news-east.rr.com!wn2feed!wn1feed!worldnet.att.net!204.127.198.204!attbi_feed4!attbi.com!rwcrnsc53.POSTED!not-for-mail Xref: news2.lightlink.com alt.religion.scientology:1524921 Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 653 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CASE NO. 00-5682-CI-11 DELL LIEBREICH, as Personal Representative of the ESTATE OF LISA McPHERSON, Plaintiff, vs. VOLUME 5 CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S., Defendants. _______________________________________/ PROCEEDINGS: Defendants' Ominbus Motion for Terminating Sanctions and Other Relief. DATE: June 6, 2002, morning session. PLACE: Courtroom B, Judicial Buiding St. Petersburg, Florida. BEFORE: Hon. Susan F. Schaeffer, Circuit Judge. REPORTED BY: Donna M. Kanabay RMR, CRR, Notary Public, State of Florida at large. -------------------------------------------------------------------- 654 APPEARANCES: MR. KENNAN G. DANDAR DANDAR & DANDAR 5340 West Kennedy Blvd., Suite 201 Tampa, FL 33602 Attorney for Plaintiff. MR. LUKE CHARLES LIROT LUKE CHARLES LIROT, PA 112 N East Street, Street, Suite B Tampa, FL 33602-4108 Attorney for Plaintiff. MR. KENDRICK MOXON MOXON & KOBRIN 1100 Cleveland Street, Suite 900 Clearwater, FL 33755 Attorney for Church of Scientology Flag Service Organization. MR. LEE FUGATE and MR. MORRIS WEINBERG, JR. and ZUCKERMAN, SPAEDER 101 E. Kennedy Blvd, Suite 1200 Tampa, FL 33602-5147 Attorneys for Church of Scientology Flag Service Organization. -------------------------------------------------------------------- 655 INDEX TO PROCEEDINGS AND EXHIBITS PAGE LINE Recess 748 5 Recess 790 5 Reporter's Certificate 791 1 -------------------------------------------------------------------- 656 (The proceedings resumed at 9:04 a.m.) THE COURT: Good morning. I have a request, please. I have a date that I would like to know. And maybe you all can agree on this. Maybe you can't. And I'm sure that it's in this or in the testimony. But frankly, I figured maybe you all would know it before I would. What I want to know is two things: I want to know when is the first time that the parties -- well, the parties to this lawsuit knew, in deposition or otherwise, that a check from a foreign country had been received by either Dandar, Dandar, Ken Dandar, or the LMT. MR. WEINBERG: So far as Dandar, Dandar, not until Mr. Minton came forward -- THE COURT: That's what I thought. MR. WEINBERG: -- whenever that was. THE COURT: LMT? MR. WEINBERG: LMT, Mr. Moxon can probably address that. MR. MOXON: I'm pretty certain, your Honor, that within Ms. Brooks' deposition of August 10th, 2001 -- MR. FUGATE: 15th. MR. MOXON: August 15th. Excuse me. -------------------------------------------------------------------- 657 I'll verify that. THE COURT: August 15th. I'm not sure if I have her deposition here or -- MR. MOXON: There was a production -- a document production from LMT that had a transfer -- No, it was August 15th. THE COURT: Now, was that in a deposition? MR. MOXON: That's correct. THE COURT: Where she said so? MR. MOXON: She produced a document, your Honor. THE COURT: So the document was produced? And it was a check? Is it one of those UBS checks? MR. MOXON: No. It was a wire transfer. I'm being corrected by Sarah. She said there were no documents produced at that deposition. But I'll verify that. THE COURT: That would be the other thing I want to know is, when did you both first learn about a foreign check, verbally or otherwise; and then when did you first get the -- literally get the first document from a foreign bank or a wire or whatever it was. MR. MOXON: Let us just research that, your Honor, and -- -------------------------------------------------------------------- 658 THE COURT: Okay. I remember there had been some discussion Ms. Brooks had provided that information. I think there was some testimony that Mr. Minton was annoyed. I'm not sure -- maybe it wasn't about that. But in any event, I need some dates on that, okay? First date it was testified to orally; second thing -- and that's on either -- you know, in other words, LMT or the Lisa McPherson Trust -- and I assumed that it was based on the testimony of the $500,000 check -- was -- I fairly well knew that, but I didn't know about the -- I think there's a $500,000 check and a $300,000 check that LMT got. MR. FUGATE: There was a wire transfer, I believe, of 500,000, and there was a $300 check. And again, I preface everything with, "I think." But I think what we'll get, when we go back and look at it, is that at the August 15th, 2001 deposition, the judge ruled that -- that Ms. Brooks had to answer the questions about the bank records. And I think at that time there was oral testimony that there had been foreign moneys that had gone into the LMT, but that the bank records themselves, and/or the checks, whatever actually demonstrated that, we didn't get until after August 15th, or we -------------------------------------------------------------------- 659 didn't get at all. Well, let's -- we'll check. THE COURT: Yeah. MR. FUGATE: And Judge, on the subject -- I put into your binder Tuesday's daily transcripts, so you're up to date as of Tuesday. It's that last binder that you've got your hand on. THE COURT: Okay. You all have given me some binders on that testimony. Have you given me testimony from day one? MR. FUGATE: Yes. THE COURT: Okay. MR. FUGATE: Those are -- you know what? I think we have -- THE COURT: Well, you know, I remember one day the court reporter handed me a separate copy -- THE REPORTER: That was a rough draft, your Honor. THE COURT: Rough draft. Well, I got that, and then I got something that wasn't a rough draft. MR. FUGATE: I think I gave you two binders. And if I'm not mistaken that was the Friday or Thursday, when we last met. And it was everything up to that point in history. And then what you have -------------------------------------------------------------------- 660 on the far left there is everything from this week, through Tuesday. THE COURT: And just keep it -- if you're doing that, that's great. And if you'll just keep adding to it until it gets too heavy -- MR. FUGATE: Mr. Dandar's only request is we not highlight anything, which we showed him there was no highlighting. THE COURT: I know I have at least one other binder. And I just -- I couldn't seem to find it at home. But as I said, I have this stuff strewn -- that's why I keep all the evidence copies here, except, when I take them home, I try to bring them back. MR. FUGATE: And Judge, on the binder that I gave you yesterday that has the -- each iteration of the complaint -- THE COURT: Yes. MR. FUGATE: -- what we did is we have gotten the face page of each one, with the "filed" stamp on it. And at some point in time I'll take out the one that just has the -- the regular front page and put the file stamp on. I'll show those to Mr. Dandar too. THE COURT: Good. And that will be -- then we -------------------------------------------------------------------- 661 would know they were actually filed -- MR. FUGATE: Actually filed -- THE COURT: -- as opposed to served. That's good. Let me see if I have that book here. You gave me two different books. Then I think you might have taken one back. I'll tell you what I'm going to do, I'm going to look through these two books that I think you've given me recently, which may be the same thing. No, you did take one back. You took one back yesterday. Okay. So I only have one. I think this is it. You want to take -- MR. FUGATE: If you'll just -- if you don't mind, Judge, I'll -- THE COURT: If you'll just take mine back -- I notice the first one, for example, has -- one of them has the date stamp on, but then the next one doesn't. MR. FUGATE: What I did -- and I just showed these to Mr. Dandar, for the record. And it's the face page of each pleading. It's in there with the stamp. THE COURT: Right. And if you would fix -- -------------------------------------------------------------------- 662 MR. FUGATE: Circuit court stamp. THE COURT: And if you would fix mine, that would be very helpful. Maybe. I think we established yesterday we were using the certificate of service date, but now we can use the filing date -- MR. FUGATE: That's fine. THE COURT: -- or either date if it's necessary. Okay. Are we ready? MR. WEINBERG: Yes. MR. DANDAR: I have one more request. THE COURT: All right. MR. DANDAR: We're in a -- the plaintiff finds itself in a bind, and we need the court's help. THE COURT: Okay. MR. DANDAR: You know, we're being -- we have to deal with this Texas judgment that's come into Florida from the federal court in Texas. THE COURT: I don't know what that means. I don't know much about federal judgments. What do you mean, it's coming into Florida? MR. DANDAR: Well, it's coming into Florida. It's a motion to domesticate it. It's currently before Judge Boyer. We're going to file a motion to -------------------------------------------------------------------- 663 bring it here because it arises out of this order of Judge Moody in this case. THE COURT: You're going to file that in front of Judge Boyer for him to decide, right? MR. DANDAR: I don't think so. I think it has to come to you. THE COURT: Oh, okay. MR. DANDAR: I'm sorry. I believe it has to come to you. THE COURT: All right. MR. DANDAR: But anyway, Mr. Pope and Mr. Rosen are hot to -- I shouldn't say hot -- they are eager to resume the hearing before Judge Baird on the motion to disqualify. We're here, of course, doing that. I don't know when we're going to get finished. But the court has already given us dates when the court is not going to be available, and the court told us use those dates in this wrongful death case for the 10 or so depositions that were cancelled because of this motion to disqualify so we can get ready for trial, which I still anticipate's going to happen in July. THE COURT: July. You've got to be kidding, Mr. Dandar. MR. DANDAR: Well, we -- -------------------------------------------------------------------- 664 THE COURT: I mean, you really have to be kidding. In the first place, I wonder if you really think that I could just -- when this is all done, which may be the end of June, that I could just rule on it off the top of my head. Probably not. I'll probably ask you all to put something together for me in writing. May not. I may be able to rule. I may not. I mean, it's a lot of stuff. And as you all know -- I hope you know by my orders -- I try to reflect and look and do and do the right thing. So I try not to make hasty judgments. Sometimes I can pretty well know what I'm going to do at the end of a hearing. And if I know what I'm going to do, I'll tell you. You know, I always try to let you know when I've made up my mind. And then I may subsequently put something together in writing. But you don't have to delay for that. You can go on ahead. Because you can't take an appeal, I guess, from anything, or cert or whatever you want to do, until I put in it writing. So I try to let you know when you can go forward. But I don't know that I can tell you when this is over, okay, "Everything's denied and let's set -------------------------------------------------------------------- 665 the trial dates." You know what I'm saying? I don't know that. I sincerely doubt it. Right now I certainly do not have it in my head. MR. DANDAR: We previously talked about July 8th, after your vacation. THE COURT: Well, I mean, that's assuming that -- that -- that you prevail in the motion. It's assuming I don't disqualify you. MR. DANDAR: I'm always assuming -- THE COURT: Right. MR. DANDAR: -- presuming -- THE COURT: And -- MR. DANDAR: -- yes. THE COURT: Assuming -- I remember you said Mr. Lirot would be ready to go. You know, I'd surely want to hear from Mr. Lirot on that at the time. I mean, this is -- this is fairly phenomenal to me. Because I can't remember, to tell you the truth, what the doctors said. I mean, a lot of times, if you all don't agree, I have to go back. And I've read them. And you know, I don't -- I can't imagine how somebody could be ready in the short amount of time he's been on it. And I don't doubt that he's spent an awful lot of time on it. -------------------------------------------------------------------- 666 But in any event, if all those things happen, then whenever I've made up my mind, we can set it for trial. I can't just -- I mean, I'll do this for you: I'll go ahead and set a tentative trial date for -- for you all. You know, we can discuss that and set a tentative trial date so you can know when it's going to be. But it ain't going to be July. This thing is dragging too slowly for it to be July. The best it would be is August. And that's assuming, as I said, that you prevail on everything; that the depositions can be taken, and whatever has not been taken -- Which I assume you all are pretty well down to the wire on it. I don't know, but I would hope you are. MR. DANDAR: Well, we had 10 depositions set and cancelled because of this hearing. THE COURT: How many? MR. DANDAR: 10. THE COURT: Okay. MR. DANDAR: They're experts. Defendant's experts I had scheduled. THE COURT: Okay. So you have to take those. MR. DANDAR: Right. THE COURT: That would be most likely 10 days. -------------------------------------------------------------------- 667 MR. DANDAR: At least. THE COURT: Well, there you have it. So I mean, here it is. I mean, it's June whatever. I've already announced that the last week of June, first week of July, I'm unavailable. I would be most surprised if we were really truly done with this by July, whatever trial week is. MR. DANDAR: But if -- if the Church of Scientology goes back to Judge Baird with multiple days of the same hearing before him, they're going -- no matter what you decide, they're going to win no matter what. Because their intent is just to make sure this trial never happens. And we're going to be into September, and we're going to be sitting here saying, "When are we going to set a trial date?" And I hope that doesn't happen. THE COURT: Well, as I said, I will be happy to set a trial date. MR. DANDAR: All right. THE COURT: But a realistic one. Remember, for me to get -- you know, this -- I already had to cancel a lot of stuff with the jury coordinator. She was calling me every day. You know, "I need to send out --" you know, I've asked her to send out a lot more summonses simply -------------------------------------------------------------------- 668 because -- by virtue of the fact that the length of the trial will eliminate just slews of jurors. I had even suggested to her that we might want to call in panels of jurors every day, you know. And so she was prepared to do that. But I called it off at the first available time. This is not easy. You know, this has to be done. They have to be drawn. Everything has to be drawn correctly. It has to go out. Excuses have to be taken. There's a certain amount of time the citizen has. So you're kidding yourself. July's out. That's an absolute out, you know. And after that, I can -- I would say September would be the first realistic date we could have. I mean, that's just -- I'm just being realistic. I mean, what -- what if I enter a ruling on this thing and one side or the other takes the matter up to the DCA and they enter a stay? I mean, it always just -- it's just too tenuous for me to crank up the machinery in that short a time. And frankly, I think we'd be foolish, in light of the fact that you have at least 10 depositions, to set it in August. I don't want to set it and then move it. I mean, I want to have it because of -------------------------------------------------------------------- 669 all of the stuff that the court has to go through. So I mean, I would say September would be the absolute earliest, if -- if this thing finishes and you prevail on everything and you're still the lawyer, that this can go. MR. DANDAR: It's just an extreme -- THE COURT: I mean, I know you disagree. You think that July -- MR. DANDAR: It's an extreme financial hardship on the plaintiff. It's just outrageously terrible to have to sit here all this time. Everyone over on this side is getting paid by the hour. We're sitting over here wondering what happens to our law practice. And I have cases set for trial in late September through the rest of the year, because we had a trial date certain. And I had my experts who had vacations, whenever they're going. And all that was coordinated. THE COURT: Well, didn't we have four months set aside? MR. DANDAR: Three to four months, right, beginning July -- June 10th. THE COURT: So June, July, August, September. MR. DANDAR: Right. -------------------------------------------------------------------- 670 THE COURT: Can't you try -- you know, so if I set it in September, you go first. MR. DANDAR: But if it's three to four months, starting September, it'll be terrible for my other clients, 'cause their trials are set in October, November, December, all the way. THE COURT: Well, then, you know, you have a choice to make, is all I can tell you. MR. DANDAR: I know. THE COURT: I can't set it in July. It's not going to be ready. I'm not going to set it in July. If you think that everything can be done and reasonably done by August, I'll set it. But if it's not, then I'm going to be most aggravated. I mean, you're the one that doesn't have the depositions taken yet. If you think that by the time I rule on this you can be ready and ready to go in August, I'll set it. I mean, they -- they've kind of got four months spanned here, I presume, where you plan to be with me. MR. WEINBERG: Yes. I mean, I would like at some point to address when in August. THE COURT: It would be the second week. I mean, a trial week is a trial week. -------------------------------------------------------------------- 671 MR. DANDAR: Judge, I can take the depositions while you're not available in June and July. MR. WEINBERG: Hold it -- MR. DANDAR: And they should be available because they were available for trial on June the 10th. I don't want to hear excuses from them that they can't do depositions. THE COURT: Just a minute. You'll have your chance. Let him finish. MR. DANDAR: They're available. I'm telling the court it's my humble opinion that all this motion practice before you now is just to make sure the trial does not go forward; that I become financially strapped; because yeah, I cancelled all my trials at the beginning of this year so we could do all this discovery for the June 10th trial date, and now we keep pushing it back. I've got to start cancelling my other trials. That is a tremendous financial hardship on me and my law firm. However, on this side we're dealing with a billion-dollar company that has all these lawyers. They don't care when this thing goes to trial because they don't suffer financially. We have to -- and I know -- -------------------------------------------------------------------- 672 THE COURT: I just asked you, do you want me to set it in August? MR. DANDAR: I want you to set it in August. THE COURT: All right. MR. DANDAR: I want to you set it in July, but I'll take August. THE COURT: Well, I'm not going to set it in July. MR. DANDAR: I'll take August. THE COURT: All right. MR. WEINBERG: I just don't think it should be set until we see where we are in this hearing. THE COURT: Well, that's -- MR. WEINBERG: And that's reasonable. THE COURT: He wants a date certain so he can deal with his experts. I understand that. I mean, if you lose, the matter's going to trial. It was supposed to go to trial in June. We assumed two to four months. August should be a perfectly acceptable date. MR. WEINBERG: I would ask -- if it is going to be set in August, I'd ask that it be set toward the end of August. THE COURT: It'll be set, for picking a jury, the second week in August, because that's when we -------------------------------------------------------------------- 673 have jurors. MR. WEINBERG: I didn't know what the -- THE COURT: Yeah. In other words, trial week starts -- it's a date certain. I don't know what it is. I'll tell you when it is. I mean, it's set. All of our trial weeks are set for jurors coming in. I certainly don't want to have to pull in -- I mean, I'll have to pull in enough special jurors, but I want to get the same 2- or 300 that they pull in for trial week. MR. WEINBERG: I just don't -- I want to make sure the court doesn't think, for us being silent to what Mr. Dandar said about this hearing being just to keep him from going to trial -- I mean, that is about as -- THE COURT: Look -- MR. WEINBERG: -- preposterous as I have heard. THE COURT: -- Mr. Dandar -- you know, I think I may have jousted with him one day when I said that his pleadings always start out that this is an outrageous claim; this is -- well, fanciful. That's not a word he uses, but -- I mean, it's outrageous. This is ludicrous. This has no business going -- If I didn't think this was necessary, I wouldn't be doing it. -------------------------------------------------------------------- 674 MR. WEINBERG: I understand. THE COURT: I mean, there is nobody in this circuit that thinks -- they're starting to tease me and tell me I'm like Judge Ito, because they always used to know I was one of the speediest, fastest judges in the circuit, and they just can't imagine I'm not. And of course, I've told them I'm not done because I'm not. It's taken as long as it's taken because it's a serious matter. If I thought I could speed it up, I'd speed it up. If I thought I could be done in two days, I'd say I could be done in two days. I take it seriously. I think it's a serious motion. I have no doubt, if I ask for closing arguments, Mr. Dandar's first line will be, "This is an outrageous claim." Obviously, if I thought it was outrageous, we wouldn't be having it. MR. DANDAR: I won't say that. THE COURT: Well, you'll say something just like it. I mean, that's what all your pleadings say. And of course, what happens is I just absolutely ignore it. I mean, if I'm going to sit down and try to figure out something and try to figure out what's correct, and I'm spending time, it -------------------------------------------------------------------- 675 isn't outrageous. So when I see that I just move over it, probably two or three or four or five lines, till I see where we're getting down to the -- So I presume that must be for some district court, because it does not impress me. MR. DANDAR: I'll keep that in mind, Judge. THE COURT: Okay. MR. DANDAR: I'll skip that paragraph. THE COURT: That's good. I think it's something you must have in your machine. It comes out the same every time. No. I do not take your silence as any suggestion that you think that this is being done to interfere with his law practice. I do concern myself with the -- the matter that the Second District raised. The Second District raised it. And you know, that hasn't come up here, and so -- MR. WEINBERG: I understand. THE COURT: But as far as this hearing is concerned, I assume you're going forward with good faith. Everything I've seen here indicates there's an issue to be decided, and that's why I'm taking meticulous notes, and that's why I'm listening carefully, and that's why I'm telling you all that. You know, this is serious business. -------------------------------------------------------------------- 676 MR. WEINBERG: And this is costly, not just in money, but in many other ways, to our client, the Church of Scientology. So for Mr. Dandar to stand there and say that the only ones suffering from this is him is just not so. And -- THE COURT: Well, if this case has shown anything to me to date, it was that my motion -- my ruling on the motion to dismiss the counterclaim was correct, and that any motion for summary judgment would probably be ill-advised, because there are issues of fact. I think you've filed one already. But I mean, this -- this hearing has certainly alerted me to the fact that there are issues to be resolved in abuse of process. And I can only assume that these kinds of things may well be at issue in that count or that counterclaim or whatever. So you know, there are things that affect this lawsuit that I'm learning. And yes, I realize it's expensive for both sides. And it's expensive for me, by the way. I have got a lot of cases that are pending. MR. WEINBERG: And for all of us lawyers in my office, I have to reintroduce myself once every week or so, because it's very difficult, when you have six people in the office, and not be able to go -------------------------------------------------------------------- 677 there -- THE COURT: I understand. I will, at Mr. Dandar's request, set this for -- tentatively for August. I frankly would prefer September, but I'll set it for August. And -- basically, because he says he's got a lot of cases that are set later. And I will honor that. If you're not going to be ready, I want to hear about it early on, before I have the jury coordinator -- and I will probably have to tell her by July, but I'm hoping that we'll have -- I'll have a ruling by July, by the time I would need to tell her to crank up that process. MR. DANDAR: Well, if we don't take depositions because they want to be before Judge Baird instead of getting ready for trial here, there's going to be a huge problem for getting ready for trial in August. THE COURT: Well, I can't -- that's what I'm trying to explain to you. I can't tell Judge Baird he can't have a hearing. MR. DANDAR: Well, they don't even have an operative complaint filed with Judge Baird right now. They want to add me and other people on as defendants in that case, that hasn't even been heard -------------------------------------------------------------------- 678 yet. There's not an operative complaint -- THE COURT: You're complaining to the wrong person. I'm not Judge Baird. MR. DANDAR: Okay. THE COURT: This argument needs to be made in front of Judge Baird. I've set it in August. Obviously, if Judge Baird decides he wants to go forward with the hearing and it's anything close to the hearing like we've had here, and you're there -- I mean, I thought your brother was handling that case. MR. DANDAR: No. My brother is trying to maintain my law practice while we're here. THE COURT: Okay. MR. DANDAR: We can't just stop everything for this matter. THE COURT: All right. Well, then, you know, as I said, I can only do what I can do in my court. And I've set this for August. I'm not -- I'm not going to be in a position to tell Judge Baird he can't hold a hearing. As I said, I told -- I told you I would -- I know he's already called, and I have not had the time, quite frankly, to get back with him, to -------------------------------------------------------------------- 679 see, you know, about whether he's going to have his hearing on whatever date it is that it's scheduled. And -- he -- I'm sure he thinks I'm a lunatic. I haven't even called him back yet. He's probably thinking, "Well, who does she think she is?" If you'll remind me, I will call him during the first break. MR. WEINBERG: I don't think he would have used that -- THE COURT: Yeah, he would have. He would have said I was being rude and I was absolutely giving him no deference. I should -- and I absolutely should have. And I should have returned his call long before now, and I haven't. Because when I get out of here I've got a jillion calls from judges all over the place that need this or that, and I've just put him on the back burner, so -- MR. DANDAR: The reason I brought it to your attention and asked you to help us out is, I believe there's a rule that says trials take precedence over anything else. THE COURT: Well, that may be. And as I said -- but that's -- and if Judge Baird's -- you know, the last time that Judge Baird and I had a situation, your brother was sitting with me, because -------------------------------------------------------------------- 680 you had taken -- gone to a conference that you had planned. And I certainly gave you permission to go, and I had no problem with that. I had your brother here waiting for a jury. I would not release him, quite frankly -- I got a jury out -- to go up to Clearwater. I don't know if you all were assessed sanctions or not. MR. DANDAR: No. I believe, in the end, Judge Baird declined to assess sanctions. THE COURT: Okay. But I know certainly that was an issue. MR. DANDAR: It was a big issue. THE COURT: He was not happy. He was not happy with me. You know, he would not let -- I suggested that your brother could appear by phone. That was not acceptable to him. I said I wasn't going to release him. That was just that simple. I had a jury out. He was not happy. So there it was -- I can't imagine anything more important than having somebody wait for a jury, a jury that had already had two questions -- and by the way, came in with a couple more, if you'll remember. I couldn't release the only lawyer the plaintiff had. MR. DANDAR: Fortunately we settled that case. THE COURT: Did you? -------------------------------------------------------------------- 681 MR. DANDAR: Yes. THE COURT: Wonderful. MR. DANDAR: Quite nicely. THE COURT: Did it help that I asked the jury the questions that I asked them? MR. DANDAR: Yes. THE COURT: Good. Off the record. MR. WEINBERG: Fine. (A discussion was held off the record.) THE COURT: Back on the record. So I'm going to set it for August. I'm going to tell you what that day is when you go out, because it's a set day. And the only thing I will probably do is -- I don't know. I hate to take everybody else's rejects, especially if they've been rejected because they don't want to stay two or three days. So I think in this case I was going to try to do it a week earlier or a week later. So I'll give you the date in August, okay? MR. DANDAR: All right. THE COURT: All right. If you're not going to be ready, you let me know early. MR. DANDAR: Yes, I will. -------------------------------------------------------------------- 682 THE COURT: Okay? And then I would move it month to month, if you like. I'd move it to September -- Once we get out past October, I presume that they have the same problem you have with other trials, so -- MR. DANDAR: Let me ask you this: How long are you going to be in this division? THE COURT: That is up to the chief judge. In other words, I only can anticipate that -- as a prior chief judge, it has always been my understanding that chief judges, one of the perks of having been an ex-chief judge is you get to stay where you want to stay. And I like civil. And frankly, I've done my dues in criminal, and would have -- be very surprised if Judge Demers would move me against my wishes. But it is not my call. I mean, my request is going to be to stay in the civil division. I don't care which civil division. It's not customary to rotate judges around and switch -- MR. WEINBERG: I think -- THE COURT: -- them around. MR. WEINBERG: -- his concern was somebody else would come in, but that would be very unlikely -- -------------------------------------------------------------------- 683 THE COURT: Very unlikely. MR. WEINBERG: -- that the case would be given to someone else. THE COURT: Very unlikely. 'Cause if I say I want to go to crime, I'll be moved. MR. DANDAR: You know so much about this case that it would be terrible to both sides to have someone come in cold turkey. THE COURT: Well, it certainly would be if they tried to catch up. Someone would probably -- You know, you can go to trial, it is very true, without knowing a thing about the case. We've all done it. We go down, take each other's cases and go in, don't know a thing about it. Here's a five-day medical malpractice. You just go in and do it. So it can be done. But it would be awfully hard to deal with motions. MR. WEINBERG: In this case, it would be hard. THE COURT: I think it would. But if they saw how much they had to read, they wouldn't do it. I don't know one of them that would do it. I'm not sure I would if I got it, saw all that. I'll say, "Look, I'll learn as I go." MR. WEINBERG: It's not like the other judges aren't aware of this case. I don't think you could -------------------------------------------------------------------- 684 give it away. THE COURT: I don't imagine I could give it away. I don't think I could -- they wouldn't be very happy. Now, remind me, would you, when I get ready to take a break, that I will call Judge Baird, and so you all know the answer to whatever date that is, and that I'm going to check and see when the trial week is. MR. DANDAR: Yes. THE COURT: Okay. MR. DANDAR: Yes. THE COURT: You may proceed. MR. DANDAR: I assume you want me to get up -- THE COURT: Yes, I do. MR. WEINBERG: I'm just going to have the clerk mark these. I'm cleaning something up from yesterday. THE COURT: I've got so many things that aren't marked, if I needed to know what they were and refer to them, I guess someone could tell me. MR. FUGATE: Judge, for the record, Mr. Lieberman is out still. THE COURT: Still sick. MR. WEINBERG: He had a bad stomach virus. -------------------------------------------------------------------- 685 THE COURT: I presumed he was working on motions for reconsideration. MR. WEINBERG: He's actually in bed. THE COURT: I was certainly teasing, but -- MR. WEINBERG: Slow on the take today. THE COURT: I hope you do tell him that I hope he feels better. Okay. Go ahead. MR. WEINBERG: All right. This is just finishing up -- this'll be fairly quick from yesterday. But these are -- one, two, three, four, five more pleadings in which the allegation with regard to murder was made, and we're marking those -- Madam Clerk, the Exhibit is what, 166? THE CLERK: 167. MR. WEINBERG: 167 A, B, C, D and E. THE COURT: All right. BY MR. WEINBERG: Q Now, the first one, 167-A, Mr. Dandar, is an answer brief filed by you in a -- one of the many Second DCA appeals. This one taken by the Church of Scientology International versus the estate. That's a brief you filed, is that correct? And -- A This was on the PC folders, that's correct. -------------------------------------------------------------------- 686 Q And that was filed September 22nd, 1999, right? A Yes. Q And on page 1, you opened the brief by saying, "The case involves the murder of Scientologist Lisa McPherson by the Church of Scientology"? A Correct. Q And then in the first -- second paragraph you say, among other things, that -- that, "After enduring 17 days of torture, she died from profound dehydration only after the officials of the Church of Scientology, including the appellant," in that case being an organization, CSI, "made a decision not to save her life and to let her die," right? A Yes. I believe OSA is part of CSI, if I'm not mistaken. Q And then -- A So all this is true. Q Okay. And then on page 12 you said, "Since the trial court determined these folders are relevant to this case involving murder," and then you make your argument, right? A That's right. Q Okay. 167-B -- go to the next exhibit. You appeared before Judge Greer in the probate case, the second document, 167-B, and you appeared, as did I and some other lawyers, in front of Judge Greer December 16th, 1999 in the -------------------------------------------------------------------- 687 probate case, correct? A Yes. That's when we actually prevailed in that. Q Well, I didn't ask you whether you prevailed or not. If you go to page 58 of the transcript, you said, in court, quote, "We are also going to show that you, Ms. Dell Liebreich, hate Scientology because Fannie McPherson, the mother hates Scientology, because they murdered her daughter. They have every right in the world to express their feelings on what they think about the murder of Lisa McPherson." You remember saying that? A That's right. Q 167-C is yet another brief that was filed in another appeal in the Second DCA. This was an appeal taken by David Miscavige with regard to attorney fee issues, I believe, as to whether you should be assessed attorney fees, I think it was. But if you go to -- And that's a brief you filed, is that correct? A Yes. And Miscavige lost that appeal. Q Okay. A And then he sued us in Texas. Q All right. A Amazing. Q All right. I just got to -- THE COURT: What is this? What is this appeal? -------------------------------------------------------------------- 688 THE WITNESS: This is -- THE COURT: I do see David Miscavige, I think. The first page is very hard to read. It's black. MR. WEINBERG: You know why it is? This is on these -- it's those colored page folders, and they just don't copy. THE COURT: Oh, okay. MR. WEINBERG: Every time we have a Second -- you can tell it's a Second DCA appeal pleading because you can't copy the first page of it. THE COURT: So he was the appellant. THE WITNESS: Yes. This was after Judge Moody said he was not covered by the agreement. We tried to serve him, we got a false address from Flag of where he lives and works, and we couldn't serve him. He comes in with Mr. Rosen to dismiss because of insufficiency of process, and then they file also -- simultaneously file a motion for summary judgment. I allege that they waived service of process if they're going to invoke the jurisdiction of the court to get a summary judgment, but they said no, we want you to decide the jurisdiction and service of process first. So Judge Moody did, and then they moved for fees. And Judge Moody said, "Well, if you want attorney fees, you need to submit to my -------------------------------------------------------------------- 689 jurisdiction," and they said, "No." They appealed that and the appellate court said, "No, you don't get attorney fees or anything if you're going to claim you weren't served properly." So when they lost that, they went to Texas and sued us for the same thing. BY MR. WEINBERG: Q All right. Well, now, if you go to page 12 -- this is the pleading that you filed on February 8th, 2001, is that right? A Page 12? Q Of your brief. That's where the certificate of service is. A That's what it says. Q Okay. And if you go to page 8 in your argument section, you say, "In moving for summary judgment, Miscavige admitted as true the well-pled facts of the fifth amended complaint, which includes Miscavige's decision to let Lisa McPherson die, i.e., murder, as stated by counsel Samuel Rosen." A That's what Mr. Rosen said, that's right. Q No, but that's what you said with regard to whether -- the decision to let her die, i.e, murder. You said that in your brief. A Show me. Because that's what Mr. Rosen said -------------------------------------------------------------------- 690 before Judge Moody. Q I.e, murder? A Yes. And I quote him on the next page. Q All right. A And I attach it as appendix E. Q Okay. Well, what Mr. Rosen said, you put on -- on the -- the next page. He -- I mean, you did accuse Mr. Miscavige of premeditated murder, right? THE COURT: I think what Mr. -- I think what he's trying to say is his argument here is that he was admitting, by moving for summary judgment, but -- so this one just isn't -- let's not deal with this one. MR. WEINBERG: Okay. THE COURT: You can make it part of the exhibit but -- MR. WEINBERG: I'll make it part of the exhibit. THE COURT: Okay. MR. WEINBERG: Actually, if you look at Exhibit E, you'll see what Mr. Rosen -- what he attaches as Exhibit E of -- or appendix E of the brief, what Mr. Rosen said in court. Do you have that? THE COURT: I don't know, because I don't know what Exhibit E is. -------------------------------------------------------------------- 691 MR. WEINBERG: I'm sorry. It's right here. Appendix E, I think. THE COURT: Okay. I have appendix E. MR. WEINBERG: And it was attached like this to the brief. BY MR. WEINBERG: Q Right, Mr. Dandar? A Yeah. And I'm pretty sure I didn't use the word "murder." Q No -- you know, I'm just going to read what Mr. Rosen said in court. A Well, I don't have appendix E. Q Yeah. You do. A All right. MR. WEINBERG: May I approach? THE COURT: Well, we don't need to read what Mr. Rosen said. This is a question of what Mr. Dandar said, and you've got it in the record. He was saying -- MR. WEINBERG: Fine. THE COURT: He -- MR. WEINBERG: I really want to go through this quickly. THE COURT: Yeah. -------------------------------------------------------------------- 692 BY MR. WEINBERG: Q The next exhibit is -- is actually the same -- it's another -- it's another -- in this same matter, response to Mr. Miscavige's motion to dismiss, you filed on April 24th. But again, it's the same argument where you're saying, "Miscavige's decision to let Lisa McPherson die i.e., murder," which you say you're quoting Mr. Rosen, is that -- A Well, show me what you're talking about now. Q Page 5. THE COURT: Mr. Dandar, I think in fairness to both sides here, you're saying -- you're alleging that when he moves to summary judgment, he's necessarily admitting certain truths, and then you're saying that the truth he's admitting is in the fifth amended complaint, which includes Miscavige's decision to let Lisa McPherson die, i.e., murder. So you're saying that that is what the fifth amended complaint says. THE WITNESS: Actually, Judge, I'm quoting Mr. Rosen again. THE COURT: Well, okay. That's -- MR. WEINBERG: I mean, we can argue that, but I don't think that's what it was. But in any event -- -------------------------------------------------------------------- 693 BY MR. WEINBERG: Q And then the last exhibit was filed by your firm. Now, this one is signed by your brother, but it's a answer brief in the Second DCA, dated September 11, 2000. You were involved in all of the -- the pleadings filed in the Lisa McPherson case, correct? A Yes. Q And if you look at page 1, again the opening line of the brief is, "Flag is a defendant in a civil action concerning the murder of Lisa McPherson." You see that? A Yes. All these -- all these statements are based upon my medical experts. Q Not Mr. Prince. Just your medical experts. A No. Mr. Prince couldn't possibly give me an opinion on murder. He can only answer the question "Why?" THE COURT: What number was that, Madam Clerk? MR. WEINBERG: 167-A through E, I think. THE CLERK: E. THE COURT: Okay. Thank you. MR. WEINBERG: Okay. Now -- now I'm going to ask a few questions about the agreement, your Honor. THE COURT: All right. MR. WEINBERG: Strange as it may sound. BY MR. WEINBERG: Q Let me see if I can sort of get us to the -- to -------------------------------------------------------------------- 694 the point by asking a few questions that I hope that you can agree on without having to pull out transcripts. Am I correct that in May, 1999, each of your clients -- and you've identified your clients to be Dell Liebreich, Ann Carlson, Lee Skelton, the sisters, and the brother, Sam Davis. A Correct. Q Am I correct that in May of 1999, each of your clients announced in their depositions in Dallas that they had agreed to donate the bulk or a percentage of the proceeds from the case to an anticult group, hopefully a group that would be named -- would be in the name of Lisa McPherson. That's what they said, isn't it? A It was -- well, to be exact and precise, it was a group that the family was going to create and name after Lisa McPherson, and it was going to be a nonprofit. Q And that they would -- they intended, had agreed to, intended to, had -- family had come to an agreement that they would donate a percentage -- and I think they indicated a large percentage -- of the proceeds to this group, correct? A Yeah. Their -- their group. Q Now previously -- THE COURT: Their group, meaning -- THE WITNESS: The family. -------------------------------------------------------------------- 695 THE COURT: The family? THE WITNESS: The family group. It wasn't a third party. BY MR. WEINBERG: Q Excuse me? They said that they were -- they said it was going to be some sort of an anticult group that was going to be established, hopefully, in the name of Lisa McPherson. A By the family of Lisa McPherson. Them. The aunts and the uncle. Q But they weren't going to give it to themselves. A The majority of the funds was going to go into this nonprofit corporation that they would establish. Q Okay. Now, previously -- A That was the first time they came to that decision. THE COURT: Well, when was the first time? A At the -- at this deposition -- THE COURT: Okay. THE WITNESS: At a dinner. May, '99. BY MR. WEINBERG: Q You -- THE COURT: That's the dinner -- MR. WEINBERG: Sorry. THE COURT: -- that's been referred to? -------------------------------------------------------------------- 696 THE WITNESS: Yes. THE COURT: Okay. BY MR. WEINBERG: Q And you were at that dinner. A Yes. Q Is it your recollection, by the way, when your clients testified, that they indicated that no one other than them were at the dinner? A No. I'd be surprised. 'Cause I was at the dinner. Q Was there anybody else at the dinner other than the family and you? A I think Brian Haney was there, as my trial consultant at that time. I think he was at the depositions as well -- Q Now -- A -- if my memory serves me correct. Q Now, previous, prior to May of '99, going back in time, in December of 1997 you had a meeting or two with Bob Minton, in which you discussed with Mr. Minton your idea that the family would donate the bulk of the proceeds or a percentage of the proceeds to an anticult group, correct? A Well, I didn't have a meeting with Mr. Minton. I don't want to have to play on words here. But we had a lunch. It was just a happenstance. We talked about that. -------------------------------------------------------------------- 697 We talked about the family thought it would be a great idea -- not the family, actually. It was my idea to put money into a group to help former Scientologists. Q And -- and you said to Mr. Minton -- and he has testified -- that you would talk to your client -- I think at that time you were talking about Dell Liebreich -- you would talk to your client to run the idea by him -- by her, and see whether or not they would agree. Do you remember that? A Something to that effect, yes. Q And you remember getting back to Mr. Minton, telling him that the -- that the family agreed that they would -- that this was a great idea, and that they would donate a percentage or bulk of the proceeds to some anticult group? A No. I remember telling Mr. Minton at some point after that -- and it might have been in Boston in January of '98 for his deposition -- that Dell Liebreich, the personal representative, thought that was a good idea to set something up to -- in Lisa's memory, nonprofit, run by the family. She thought that was a good idea. But she did not talk about that, as far as I knew, to anyone else. Q Right. But you reported that back to Mr. Minton. A Well, I didn't report it back. It just came up in conversation again, either in Boston -- which I believe -------------------------------------------------------------------- 698 that's where it happened, where we had a cup of coffee. Q And then you were at, as was I, Mr. Minton's deposition in January of '98, when he announced publicly in his deposition that in fact you had had these conversations, and there was this, what he called, agreement that the family was going to donate -- I think he used the word -- bulk of the proceeds, but whatever the word was that he used -- to an anticult group. A No. That's not true. I think he said we talked about ideas. An idea is an idea. There's no agreement. Q Well, we'll pull that testimony. A And there was no -- certainly no -- THE COURT: No, you're not going to pull the testimony of Mr. Minton. He's testified, and he may testify different from Mr. Dandar. But what he says, I get to compare with what Mr. Dandar says. He doesn't get to be impeached by Mr. Minton's deposition. It isn't going to happen, Counsel. MR. WEINBERG: Okay. I wasn't really going to impeach him. I was going to try to refresh his recollection as to what he said, 'cause he was there. THE COURT: All right. You can refresh his recollection if you need to, but you cannot use it -- -------------------------------------------------------------------- 699 MR. WEINBERG: Well, that's what I was -- THE COURT: And the truth of the matter is, on Mr. Minton's depositions, there isn't one I've read -- you can use one part of the testimony -- that he doesn't change later. Mr. Minton's testimony regarding this agreement is all over the place in the depositions. All over the place. He changes his testimony from one spot to the next time he talks about it in the deposition. So quite frankly, unless you're going to let him read the whole deposition, I'm not going to let you refresh his memory from Mr. Minton's deposition on this agreement. On -- which one was it? Which date? THE WITNESS: January, '98. MR. WEINBERG: This is January -- I'm just trying to get some background is what I'm doing, your Honor. THE COURT: But you can't use part of Mr. Minton's deposition. MR. WEINBERG: Well, it's only a page where he talks about this. THE COURT: Well, I think you're probably wrong. MR. WEINBERG: All I was going to show him was -------------------------------------------------------------------- 700 what Mr. Minton testified to about what he said Mr. Dandar told him about Mr. Dandar's conversations with Ms. Liebreich and what they said. A I specifically remember that deposition transcript showing that Mr. Minton said it was an idea; there was no group identified; he may have mentioned some names, but the family certainly didn't mention any names of any group, especially Mr. Minton, Stacy Brooks or anything that they may create, 'cause that wasn't even -- BY MR. WEINBERG: Q All right. A -- an idea. MR. WEINBERG: Well, you know, we'll argue this later, your Honor. It's on page 65, lines 14 to the bottom. I'll go on because it's really not -- MR. LIROT: What's the date on that deposition? MR. WEINBERG: It's January of '98. BY MR. WEINBERG: Q Mr. Minton posted on the Internet after his deposition that at least he understood that there was an agreement of some sort that the family was going to donate the bulk of the proceeds to an anticult group. A How many months afterwards? Q I'm just asking your recollection. I'm trying to -------------------------------------------------------------------- 701 do this as foundation. A My recollection is that he posted something false on the Internet, that I didn't even know about, of course, that came up -- I found out he just did it to rile up Scientology. Q You were at Ann Carlson's -- your client Ann Carlson's deposition in July of 2000, right? A Yes. She's the eldest of the siblings and the one that makes the most mistakes in her deposition. Q And do you recall in that deposition that she said under oath, while you were there, that the organization that was going to get the bulk of the proceeds that they had all testified about back in May of 1999 was the Lisa McPherson Trust? A Well, they didn't all testify about the Lisa McPherson Trust getting anything. That's not correct. She may have said something like that. Q Well, do you recall that that's what she did say? A She may have. And I would not have interrupted her and corrected her like you suggest. I don't think that's appropriate for a lawyer to do. Q No. But she did have the opportunity to do an errata sheet, correct? A Right. -------------------------------------------------------------------- 702 Did she do one? Q Yes. A Okay. Q And she didn't correct that testimony -- A Okay. Q -- did she? Is that your recollection? A No. But if you say so, I'll take you at your word. MR. WEINBERG: Well, can I approach, your Honor? THE COURT: You cannot use the deposition -- if you want to bring her down here and let her testify, you may do that. MR. WEINBERG: This is his client, and what -- THE COURT: It is not his client. MR. WEINBERG: She said it is -- he said it was. Ann Carlson's his client. THE COURT: All right. MR. WEINBERG: One of the beneficiaries. THE WITNESS: Well, she is my client, Judge. THE COURT: Well, I understand you think she's your client. Go ahead. MR. WEINBERG: Okay. Can I approach or -- -------------------------------------------------------------------- 703 THE COURT: Do whatever you want. But you're wasting my time, quite frankly. MR. WEINBERG: All right, your Honor. THE COURT: I don't know how many times I'm going to tell you that I'm not going to care what somebody said in some deposition unless you bring them in to testify -- MR. WEINBERG: All right. THE COURT: -- in this hearing. And I am not going to consider it as evidence. MR. WEINBERG: All right. THE COURT: It is just that simple. MR. WEINBERG: All right. THE COURT: So you're wasting my time. MR. WEINBERG: Okay. BY MR. WEINBERG: Q Now, at the end of 2000 is when the affidavits of Dell Liebreich and Bob Minton were done, correct, that are in evidence in this case. A In the middle of 2000. Q No. December of 2000, remember? A Oh, the affidavit. I'm sorry. I'm thinking depositions. All right. Go ahead. Q And in those affidavits -- the issue as to whether -------------------------------------------------------------------- 704 or not there was an agreement to donate the bulk of the proceeds is addressed in each affidavit, correct? A Right. That was addressed by Mr. Merrett. And we went over this before. And the whole purpose of those affidavits was to tell the truth to the court, that there is no connection between the LMT and the Lisa McPherson wrongful death case. Q Right. But Mr. Merrett didn't prepare Ms. Liebreich's affidavit. A No. Q You did that. A I did that. Q And you coordinated with Mr. Merrett the preparation of Mr. Minton's affidavit with the preparation of Ms. Liebreich's affidavit, because you filed them at the same time in the same pleading, correct? A Well, yes. Coordination, meaning timing. We were both working on the same thing at the same time. Q Okay. Now, the testimony of Mr. Minton in this proceeding is that -- is that he entered into a secret agreement with you and your client with regard to the maintenance of this bulk of the proceeds after he said you all agreed to backtrack publicly from there ever being an agreement, correct? -------------------------------------------------------------------- 705 THE COURT: You're going to have to rephrase that question. MR. WEINBERG: It's a bad question. I'll ask it again. THE COURT: It's a very bad question. MR. WEINBERG: It is. I'll re-ask it. BY MR. WEINBERG: Q Did you ever tell your -- Mr. Minton that he had to backtrack from what he'd said about the agreement? A No. I did tell him, "What in the world are you putting this junk up on the Internet that is false?" Now, he put on the Internet something about "The Lisa McPherson Trust will be forever endowed with the money from the wrongful death case." I said, "What are you doing that for? That's not true. You don't have any agreement with us." THE COURT: Okay. A So I don't think I ever used the word "backtrack." But if I did, which I don't think I did, that's what we were talking about. 'Cause he's just doing this crazy stuff on the Internet, which is causing Mr. Moxon and Ben Shaw to go crazy in this court, saying, "Look. Look. Look what's going on here." And I told Mr. Minton -- And so he comes in his deposition, he tells the truth under oath. But on the Internet he's wild guy, wild -------------------------------------------------------------------- 706 and crazy. BY MR. WEINBERG: Q When did you have that conversation with Mr. Minton? A I have -- it might have been after his deposition. I think that's the first time I saw those postings. Q Well, there's a lot of depositions. Which one are we talking about? A I can't tell you. Wherever is the first deposition of his Internet postings, he was questioned about this money going to the Lisa McPherson Trust, which was -- Q So that would -- A -- false. Q That would be May of 2000. The May 24th, 2000 -- THE COURT: He doesn't know. Whichever one it's in. BY MR. WEINBERG: Q Now -- THE COURT: Had you seen those postings prior to his -- THE WITNESS: No. THE COURT: -- talking about them or their being brought up by Mr. Moxon or whoever it was at the deposition? THE WITNESS: No. -------------------------------------------------------------------- 707 THE COURT: So that was the first time you knew what he was saying on the Internet. THE WITNESS: First time. I don't receive his postings. I mean, he's posting, I believe, on alt.religion.scientology, which, as I said the other day, I still don't know how to access. THE COURT: You mean you just don't go in and type up at the top, alt.religion.scientology? THE WITNESS: Well, you can get there -- No, it's not that easy. THE COURT: Oh. THE WITNESS: You can get there, but after you get there, they give you all these options. And it's just like -- THE COURT: Okay. THE WITNESS: To me, it's gobbledygook. BY MR. WEINBERG: Q Now, you -- after the meeting in New Hampshire with Mr. Minton, you sent a letter on February 26th, 2002 to Mr. Minton, is that right? What he's referred to as the suck-up letter. A Okay. The letter he requested, right. Q Right. Now, just before we get to the -- to the details of the letter, how is it that this letter came about? -------------------------------------------------------------------- 708 A He requested it. He told me -- he said, "I have no more money for you. However --" THE WITNESS: And honest to God, Judge, I, to this day, believe when he tells me and he told me, "My friends in Europe --" I think -- I think that has a big deal to do with this. I think that's a true statement, because he said it to too many people about his friends in Europe that he deals with, that "These people have more money than we can count." THE COURT: I have no doubt in my mind that there is a possibility that he said that, for reasons that are very obvious to me. THE WITNESS: I understand that. THE COURT: What I'm suggesting to you and what I was trying to say to you the other day is, as you sit there, looking at somebody, you should have known the same thing that I would know. But maybe that's not true because maybe I've got a good old IRS background, and therefore I would be quite -- I would be thinking, "Yeah. Right." THE WITNESS: Well, I believe we heard Mr. Merrett even testify that he was -- THE COURT: As I said, I can imagine and envision all reasons -- manner of reasons why -------------------------------------------------------------------- 709 Mr. Minton would not want to tell you that the money was coming from him. I would have thought, as a lawyer, you might have been more suspicious than apparently you testified that you were. And I've heard -- THE WITNESS: I just -- THE COURT: -- heard you and I know what you say. And that's -- THE WITNESS: All right. I just had no reason, and I still have no reason to believe that he ever lied under oath in his depositions about this. I just don't. BY MR. WEINBERG: Q Now, going back to the letter, what did he -- A I'm sorry. Q So he asked you to send the letter. A Okay. Q What did he tell you that he wanted in the letter, covered by the letter? A He wanted me to express what I felt about his support in the case, when he was supporting the case, because everybody was -- everybody -- two people were criticizing him for breaching his promise never to give up supporting the litigation in the case. Q And who was supposed to be reading this letter? I -------------------------------------------------------------------- 710 mean, who was it written -- was it just written -- A It was -- Q -- written for Mr. Minton -- A It was -- Q -- or some other audience? A It was written from me to him, and then he was going to give it to his friends in Europe. Q And this is how you -- THE COURT: What letter -- number is that exhibit? I think it's already in evidence. I just don't know, so I can reference here. THE WITNESS: It's in evidence. THE COURT: I know it is. Do we know what the number is? MR. WEINBERG: We'll check. THE COURT: Madam Clerk, can you look -- Lord, that was so unfair. MR. WEINBERG: I've got copies. I'm going to hand it up. And by the time we get done with it, we'll know what the exhibit number is. THE COURT: Maybe you could hand it to the clerk and it would help her to know -- THE WITNESS: You can just write across the top "suck-up letter." That's what he calls it. THE COURT: Well, I know that's what it's been -------------------------------------------------------------------- 711 referred to, but I suspect in the record it's got a number. MR. WEINBERG: 110, apparently. THE COURT: 110? MR. WEINBERG: Defense 110. THE COURT: Defendant's 110? MR. WEINBERG: Defendant's 110 is what I'm told. THE COURT: Okay. BY MR. WEINBERG: Q So the idea was -- so the understanding was that if you wrote this letter, Mr. Minton was going to send it to his friends in Europe, and that's how he was going to get money for you for the trial? A He was going to use it to let them know that I wasn't participating in this vicious attack against him. And he wanted me to express what I thought about his -- him. And I did. Q But how -- how exactly was -- was a letter like this going to help -- going to convince somebody in Europe to give you money? A You know, that wasn't my -- this letter is from me to him. This is -- these are all truthful statements in this letter. So how he used it after that, I have no idea. Q All right. Well, let's go to the second paragraph -------------------------------------------------------------------- 712 of the letter, and -- By the way, was there anything specifically that, in addition to saying just what a nice guy -- was there any specific allegation that he asked to be addressed in the letter? A I don't think so. Q Okay. So in the second -- THE COURT: Didn't he testify that he wanted -- something that he wanted -- that -- well, somewhere I heard something. Maybe it was from you, Mr. Dandar -- that he wanted some -- he wanted some appreciation to be shown for the money he'd given? I haven't even read this. THE WITNESS: I think -- MR. WEINBERG: I think -- THE WITNESS: I think that's -- MR. WEINBERG: You want to spend a moment and read it or -- THE COURT: Yeah. Let me look at it again. MR. WEINBERG: Okay. THE COURT: So -- see if that refreshes my memory. I know we -- MR. WEINBERG: I think what Mr. Minton said, this wasn't what he had in mind, but he called it the suck-up letter. -------------------------------------------------------------------- 713 THE COURT: Okay. I know he referred to it as the suck-up letter. Here's Mr. Dandar's favorite word. "Outrageous." "Despicable." I think I've seen that in his pleadings too. THE WITNESS: I've got to find a better word than "outrageous." THE COURT: Well, it's all right once in a while, but when you use it in every pleading, you finally think it doesn't really make it -- it doesn't mean anything here. THE WITNESS: I don't think I've ever used it in any other case, in a pleading. THE COURT: Okay. I've read it. BY MR. WEINBERG: Q Now, you -- you thought that by indicating in this letter about the campaign of harassment and all the, quote, numerous false allegations; by putting that in a letter, that that was going to be helpful in convincing somebody in Europe to get involved? A No. I can't answer the question yes or no. I mean, I put in the letter what I was feeling at the time, which is all true. Q Now, if you go to the second paragraph, the second sentence, you say, "Among the more outrageous and -------------------------------------------------------------------- 714 unsupported claims are that you hijacked the case for monetary gain --" And that was a claim, correct? A Yes. Q "-- tampered with witnesses and dictated how the case is to be litigated." And those were claims as well that were made by the Church of Scientology in the counterclaim and in other pleadings in the case, right? A Correct. Q And you say, "Although I've addressed these despicable and false allegations in court on various occasions, I again, for the record, will make it clear, your support of the case was a loan, the details of which are a matter of court record." Why did you find it necessary to say that in this letter to him, that "your support was a loan"? THE WITNESS: Well, this is -- this is really invasive, Judge. I don't see how this has to do with their motion. And they're asking me to explain -- The document speaks for itself. You know, I told you it's all true. It's not part of your motion. And everything in here is true. -------------------------------------------------------------------- 715 BY MR. WEINBERG: Q Well, let's go down to the last sentence of the second paragraph, where you say, "There are no secret agreements between or among you, me, or Dell." Do you see that? A Yes. Q Now, no one from the Church of Scientology in this case had ever accused you or Dell Liebreich or Bob Minton of having a, quote, secret agreement, had they; or the LMT. A I'm not so sure about that. Q Well, can you -- A I think it's just the opposite. Q Can you cite any pleading, anywhere, that the Church of Scientology filed in this case, prior to Mr. Minton coming forward a month or so ago with his affidavit, where he coined the phrase "secret agreement," where the church ever said that there was a, quote, secret agreement, anywhere? A Well, the first thing that comes to mind is the September and October depositions. Q No. Could you just answer that question? THE COURT: He is -- A I -- THE COURT: -- Counselor. MR. WEINBERG: Okay. All right. -------------------------------------------------------------------- 716 THE COURT: Go on ahead. A It's either the September or October -- October for sure. I remember Mr. Rosen's behavior at the deposition of Mr. Minton, without a master -- and that's the case before Judge Baird -- where he was basically accusing Mr. Minton of lying because of the Internet -- Internet postings versus his sworn testimony in deposition. And he was implying, if not saying directly, "Well, there must be something secret or under the table or something nefarious, because your under-oath deposition testimony conflicts with your Internet postings." BY MR. WEINBERG: Q All right. And you could find that somewhere where he said secret agreement? A No. You can find it. I'm not going to -- THE COURT: He didn't say he said secret agreement; he either used that or nefarious or under the table or something like that. BY MR. WEINBERG: Q Did you talk to Mr. Minton while you were in New Hampshire -- did you have a conversation with Mr. Minton about what he's described as the secret agreement; the agreement where there was still an understanding that the estate was going to donate some percentage of the proceeds? A No. -------------------------------------------------------------------- 717 Q All right. So this was your choice of words here: Secret agreement? A Well, you know I'm the author of the letter. The answer is yes. These are all my choice of words. Q Okay. What secret agreement are you talking about here? A The one that the Church of Scientology keeps alleging exists, that doesn't and has never existed. Q And just tell me which one is that? A The -- the agreement that Scientology insists exists concerning giving the bulk of proceeds from this case to the Lisa McPherson Trust or Mr. Minton. Q Yeah. But that -- but that agreement -- there was nothing secret about it. I mean, Mr. Minton was all over the Internet; your clients testified about it, you know, in May of '99. The position that the church took was there was an agreement. Now, we can debate whether -- whether it's enforceable; we can debate whether an oral agreement's enforceable -- You would agree that an oral agreement is enforceable, correct, if there's a meeting of the minds. A No. There's more conditions -- MR. LIROT: Judge -- A -- than that. THE COURT: Yeah. That is certainly not going -------------------------------------------------------------------- 718 to be debated in this court as to whether or not any such oral agreement, if there was one that had the terms, which of course there isn't, would be enforceable. And you've got statute of fraud problems. Perhaps it couldn't be performed within a year. There's all manner of problems. And frankly, I don't want to go into them here. MR. WEINBERG: Well, I'll ask the question differently. A But there was never an agreement. BY MR. WEINBERG: Q You had an agreement with regard to what you say is a loan -- THE COURT: And all I can tell you, Counselor, if Mr. Minton thinks he's got an agreement he can enforce, he needs to go into court and try. MR. WEINBERG: Well, there's two agreements that he's talking, I suppose. I mean -- BY MR. WEINBERG: Q Well, let me ask you -- A There's only one agreement, right, the loan. Q The loan agreement. And that's not in writing, and yet you say it's enforceable, correct? A Well, it's partly in writing. It's Mr. Minton's handwritten note on his card, that has "Robert Minton" -------------------------------------------------------------------- 719 printed on it -- Q All right. A -- that he talked about in his January, '98 deposition and his September and October deposition. Q Right. But it doesn't say loan to you, it says loan to the estate. THE COURT: We don't need to go there. A They -- THE COURT: We can argue that at the right time -- A They -- THE COURT: -- Counselor. A All the depositions say loan to me, all three depositions. BY MR. WEINBERG: Q The -- THE COURT: I guess the only way we'll ever know whether that -- whatever it is you all are calling an agreement, is if in fact you all lose at a trial, and mega, mega, millions are awarded, and you all pay mega, mega, millions. And if in fact the estate doesn't give Mr. Minton whatever it is he thinks he's entitled to, then he can go into court and see if he can get a judge or a jury to buy that he's got an enforceable agreement. -------------------------------------------------------------------- 720 MR. WEINBERG: I mean, obviously we have -- this comes up all the time in the law. In the cases I'm involved in, conspiracy cases, there's never anything in writing. THE COURT: I understand that, Counselor. I used to teach at Stetson Law School. And I taught commercial cases. And I'm somewhat of a whiz on commercial cases and commercial litigation in the state of Florida. And you know, you have your views and I have mine. As I -- MR. WEINBERG: I understand. THE COURT: As I asked your legal expert, Mr. Lieberman, one time, and as he candidly asked (sic), I asked him how he'd like to take that case on a contingency agreement, and he clearly expressed he would not. And neither would any other lawyer, that I know of. Certainly, Mr. Lieberman's a legal scholar. But we don't need to debate that. I mean, that's -- that's -- you know, we'll have to see how this plays out and -- MR. WEINBERG: I understand. THE COURT: Okay. MR. WEINBERG: The point I made was -- I mean, the point I'm making is what is the reference to -------------------------------------------------------------------- 721 secret -- no secret agreement -- THE COURT: What's important here is whether or not Mr. Dandar told Mr. Minton -- MR. WEINBERG: Right. THE COURT: -- to lie about something. MR. WEINBERG: Exactly. THE COURT: It's not whether or not something can be enforced or can't. Quite frankly, I would tell Mr. Minton, as I think I made clear to Mr. Minton, I think he's wasting his time and his money if in fact it ever comes to that. However, that isn't important. MR. WEINBERG: What's important is whether or not they have an understanding that he was going to lie about the nature of whatever the understanding was. THE COURT: What's important is whether or not Mr. Dandar and now, of course, we know Mr. Merrett -- MR. WEINBERG: Right. THE COURT: -- got people to lie under oath and file false affidavits. That's important. MR. WEINBERG: Right. THE COURT: The truth of the matter is there wasn't a thing wrong with the agreement, if there -------------------------------------------------------------------- 722 was one, in my mind. So I mean, that -- MR. WEINBERG: No -- THE COURT: The only issue here is whether or not there was some -- some foolishness going on; more than that, some -- some subornation of perjury going on. That's what I want to hear about. I don't want to debate the legalities. MR. WEINBERG: The reason I brought up this letter was to -- was to -- THE COURT: And I understand that. MR. WEINBERG: -- identify -- THE COURT: You've made your point. Although it was made before by somebody else with Mr. Minton. So you can't -- you don't need to beat a dead horse. It was important to have him say why -- MR. WEINBERG: Right. THE COURT: -- he used the word, you know. I guess he's testified to that. MR. WEINBERG: Right. Well, we'll put that down and we'll -- THE COURT: All right. MR. WEINBERG: -- go to the next subject. Just give me a second, okay? BY MR. WEINBERG: Q Now, you were present for the May 24th, 2000 -------------------------------------------------------------------- 723 deposition of Robert Minton. We're about to talk about the perjury of Mr. Minton. A Yes. Q You were present for his deposition. A Yes. Q This came right during the time that there was accelerated LMT -- Lisa McPherson Trust -- discovery issues that were beginning to pop up. A Well, I don't think they -- I don't know if you could call them accelerated, but they were discovery issues. Q Right. This is where we went over the other day. You had appeared for the Lisa McPherson Trust in April and early May, and then Mr. Merrett came in sometime right before Mr. Minton's deposition, right? A No. I did not appear for the Lisa McPherson Trust in the wrongful death case. I appeared once before Judge Penick on the injunction. I was a go-between. THE COURT: We've been there. Whatever he's testified to is in the record. MR. WEINBERG: Right. BY MR. WEINBERG: Q At the deposition -- at the deposition of Mr. Minton on May 24th, 2000, on page 212 -- THE COURT: I'm sorry. Where are you now? -------------------------------------------------------------------- 724 MR. WEINBERG: Mr. Minton's May 24th, 2000 deposition. I'll hand up a excerpt to Mr. -- THE COURT: You're not going to put it in the record. MR. WEINBERG: I got to ask him if this is what he testified to. THE COURT: You can do that. What page are you on, Counselor? THE WITNESS: 212. THE COURT: 212. THE WITNESS: Yes. MR. WEINBERG: 212. THE COURT: Okay. BY MR. WEINBERG: Q Mr. Minton was asked, "Tell me all the amounts that you have given him." He's talking about you. "Answer: I don't know all the amounts. The total amounts to a little over a million dollars, a million-fifty-thousand. "Question: Did you make these checks to him yourself? "Answer: Did I what? "Did you make the checks to him yourself? "Yes. -------------------------------------------------------------------- 725 "Each check was drawn on one of your personal accounts. "I believe it was, yes. "Did you instruct anyone else to write the checks? "Answer: No. "Did you physically write them? "I think I physically wrote them all. There may have been a wire transfer in there. I don't remember." Now -- A "I don't remember" is a real key phrase there, isn't it? Q I don't know. But do you remember that Mr. Minton, at that deposition, when asked how much money he had given to you, said a million and fifty thousand? A Yes. Q The truth was that just before the deposition, a few weeks before, he had given you a $500,000 UBS check at the Bombay Bicycle Club, right? A That's correct. Q And he didn't disclose that check during this deposition. A That's right. Q Now, you told him at the time, or just before that -- he gave you this check, that you needed a -------------------------------------------------------------------- 726 substantial sum of money for trial. That's how the check came about. A Let me think about that. I never gave him a figure. But the trial was pending in June, just a month away. Q I mean, he didn't just appear one day with a $500,000 check. There had been some conversation before that; you told him you needed a substantial amount of money -- A Well -- Q -- in order -- in order to be able to get through trial. A Something close to those words. But saying I needed $500,000, no. I saw the check for -- $500,000 check, I was in shock. Q By that time, in May of 2000, Mr. Minton and Mr. Minton's money had become a distraction, hadn't it, to -- to your case. MR. LIROT: Judge, I don't know what that means. A I don't know what -- THE COURT: I don't either, so -- BY MR. WEINBERG: Q It had become an issue that was giving the estate of Lisa McPherson and Ken Dandar problems in the litigation. -------------------------------------------------------------------- 727 A No. It was just annoying because it was an issue for some reason. Q Did you tell Mr. Minton, prior to the deposition at the time -- either before or at the time that you -- you got this money, that you wanted a way to get money from him that was not traceable back to him? A No. Q Did you tell him that you wanted money in order to conceal it from other members of your trial team? A No. Q Did you discuss with him that -- that prior to -- prior to the deposition in May of -- May 24th of 2000, did you discuss with Mr. Minton that he could ignore the $500,000 check that he had just given you because, words or effect, it had not been written by him? A Not prior to his deposition. Q Did you have any discussion with Mr. Minton at any time that it was okay for him to ignore the $500,000 check that you had given him in response to questions -- that he had given you in response to questions about how much money he gave you? A Well, the only time I think I talked to him about that was when we had a stay in effect. And I think that was September, '01, before his September, '01 deposition. I announced to him or John Merrett that there was a stay. I -------------------------------------------------------------------- 728 never told Mr. Minton not to talk about any checks in his deposition. Q Well, what did -- what was this conversation you had with Mr. Minton, if it's in September of 2001, about not having to disclose a check? A Well, no, I think it's either him or John Merrett, where I said, "There's a stay in effect." And you know, maybe it was -- I don't think it was September, 2000. I think it's September, 2001. But I can't be a hundred percent sure. The record will speak for itself. But that deposition, I believe Mr. Minton was truthful in his answers, the deposition of May, 2000, the way the questions were phrased. And quite frankly, you know, you got more information out of him than what Judge Moody had ordered me to produce as of January, 2000. So he -- he disclosed the other checks he had given to me after January of 2000. Q Did you tell Mr. Minton, in words or effect, that you were going to put these funds in a secret account so that they couldn't be traced? A No. Q Did you discuss with him putting these funds in a -- in some sort of a -- a special account that couldn't be found? A No. Q Did you -- did you discuss with -- did you conceal -------------------------------------------------------------------- 729 the fact that you had gotten this money from anyone on your trial team? A All of them. I conceal all the money I get, as far as I can remember, from anybody that works for me, except maybe my brother. I'm sure he knew about it. But if you're talking about Tom Haverty and Rick Spector and Dr. Garko and other staff, they don't -- I don't tell them my business. Q Well, but prior to that, obviously -- I mean, at the -- at the deposition of Mr. Minton and prior to that, it had been disclosed that he had given you, you know, for the litigation, over a million dollars, right? A When it became a deposition disclosure, that's when -- that's the only time anyone else found out about it. Q So the last million dollars, the $500,000 UBS check in May of 2000, the $250,000 personal check to Ken Dandar -- I think it was the Bank of Boston -- in May of 2001, and the $250,000 check, UBS check, in March of 2002 -- those three checks, you did not disclose to anyone on your trial team. A I don't think so. Q I mean -- so the answer is yes. A The answer is I don't remember ever disclosing any money to a trial team member. The only thing I could possibly come close to is, "I got some money." -------------------------------------------------------------------- 730 Q Did you instruct -- not to use that word. Did you have a discussion with Mr. Minton that he didn't have an obligation to produce the $500,000 check pursuant to the subpoena that had been served on him prior to the May, 2000 depo? A No. Q Did you create a special account for the $500,000 check? THE COURT: I'm not going to require him to answer that, Counselor. MR. WEINBERG: Okay. THE COURT: And I've told you that. MR. WEINBERG: Well, I'm not -- I don't care whether he -- you know -- THE COURT: Well -- MR. WEINBERG: I think it goes -- I mean, look -- THE COURT: I understand what you're saying, but I've told you you're not going there -- MR. WEINBERG: Okay. THE COURT: -- and you're not going there. And I'm not going to make him sit here and answer that question when I've told you you can't go there. That's based on what I perceive are improper questions pursuant to an appellate decision, so it -------------------------------------------------------------------- 731 isn't going to happen -- MR. WEINBERG: All right. THE COURT: -- until that opinion is reversed. And if it's reversed, why then that would be perfectly all right. MR. WEINBERG: I need -- I -- what I was -- where I was going was -- had to do with -- with Mr. Dandar's motive and -- THE COURT: I understand, Counselor. I'm obliged to follow the dictates of what I perceive to be an appellate court decision. And I asked you all not to go there, and I'm asking you again. And there may come a time when I'll order you not to do that. And if I order you and you violate it, you'll suffer the consequences. And I really think I have. I really think I've entered an order. MR. WEINBERG: I'll try not to. THE COURT: Mr. -- while you're trying to get whatever you're trying to get -- Dr. Garko is not a permanent employee of yours? THE WITNESS: Oh, no. THE COURT: So he's just an independent contractor that you've employed for this. THE WITNESS: Yes. -------------------------------------------------------------------- 732 THE COURT: Would you normally discuss your finances and who's paying you what to somebody you've hired for a case? THE WITNESS: No. THE COURT: Do you know any lawyer that does? THE WITNESS: No. THE COURT: Let's see. Who is Mr. Haverty? THE WITNESS: He's also an independent contractor. THE COURT: And you've hired him for this case, as well as maybe some others. THE WITNESS: Lots of others. THE COURT: Do you discuss your financial business, who pays you what? THE WITNESS: No. But what I did say is -- I may say, "I got some money." THE COURT: But I mean, do you tell him who gives you how much money -- THE WITNESS: No. THE COURT: -- how much your law firm is making -- THE WITNESS: No. THE COURT: -- this type of thing? THE WITNESS: No, no. -------------------------------------------------------------------- 733 THE COURT: Other than what your secretary -- my secretary used to know everything about my business, mostly because everything went through the secretary. Do you discuss this with your investigators? Do you tell your investigators that you hire who's paying you what kind of money? THE WITNESS: No. THE COURT: Do you know of any law firm that does? THE WITNESS: No. In fact, I don't even think -- if we settle a case, I don't even think they know what -- investigators or anyone knows about it. THE COURT: So as far as you know, your practice is the same as any other law firms that you're aware of, as far as who you tell your business, your financial business to. THE WITNESS: Yes. Yes. THE COURT: All right. I did want to know -- Donna is your permanent employee. THE WITNESS: 19 years. THE COURT: Okay. Your brother -- THE WITNESS: Yes. -------------------------------------------------------------------- 734 THE COURT: -- is your law partner. THE WITNESS: Yes. THE COURT: Do you have some agreement to -- to -- I don't know what you'd call it -- share money? I mean, do you all have a -- THE WITNESS: It's 50 -- yeah. It's a 50/50. THE COURT: So what you make, he gets part of. THE WITNESS: Yes. THE COURT: Okay. This is not an arrangement where you got what -- you share expenses and you get to keep what you bring in and he gets to keep what he brings in. THE WITNESS: If it were, we'd be in pretty bad shape, right now. THE COURT: But it is not. THE WITNESS: It's not. THE COURT: Because I mean, I've been involved in those kinds of partnerships. Other than your secretary, who's a full-time employee, and your law partner, do you have any other full-time employees in your firm? THE WITNESS: Oh, yes. THE COURT: Who are they? THE WITNESS: I have -- my brother has a secretary/paralegal, and we have a legal assistant. -------------------------------------------------------------------- 735 THE COURT: Okay. But -- but none of these people on this trial team that you're talking about are permanent members of your staff, other than your secretary? THE WITNESS: Secretary and my brother. THE COURT: Okay. Did you tell any -- anybody else that you perceived to be on your trial team how much money you were getting from Mr. Minton or any other person? THE WITNESS: Other than my trial team? THE COURT: No. THE WITNESS: I mis-- THE COURT: Did you tell -- other than your brother and maybe your secretary, who would maybe know your financial business because stuff usually goes through a secretary, did you tell anybody on your trial team how much money you were getting from any source -- THE WITNESS: No. THE COURT: -- regarding this case? THE WITNESS: No, no. It was always -- THE COURT: Do you in any other case? THE WITNESS: It was always vague. It was always vague, like, "I got some money," something like that. -------------------------------------------------------------------- 736 THE COURT: Do you, in any other case, keep your trial team, whoever they might be on that case, advised of your finances? THE WITNESS: Never. Never. BY MR. WEINBERG: Q And if you go to that -- back to that transcript that I had in front of you, 212, line 14, I just want to focus on the question. "Tell me --" Mr. Minton is asked, "Tell me the amounts that you have --" THE COURT: Where are you, Counselor? I'm sorry. MR. WEINBERG: I'm sorry. 212, line 14. THE COURT: 212? MR. WEINBERG: That's what -- that's what I had given you before. THE COURT: I thought I was on page 2 -- something else. Okay. MR. WEINBERG: Maybe I'm -- I think that's what I -- THE COURT: Okay. I'm sorry. Mr. Minton -- Which depo? MR. WEINBERG: May of 2000. May 24th of 2000. THE COURT: Okay. Page -- -------------------------------------------------------------------- 737 MR. WEINBERG: 212. Line 14. I want to go over this question. THE COURT: I think I'd been there and then I think I'd gone somewhere else. Now I'm back to it, all right. BY MR. WEINBERG: Q Line 14, the question is, "Tell --" Mr. Minton's asked, "Tell me the amounts that you have given him," meaning you. And then he says, a million and fifty thousand -- THE COURT: I'm sorry. I'm not -- I'm not where you are, apparently. What line are you at? THE WITNESS: 14. THE COURT: Tell me the line. THE WITNESS: 14. MR. WEINBERG: 14. THE COURT: My line says, "What records did you check?" THE WITNESS: On page -- THE COURT: I'm on the wrong page. No wonder. MR. WEINBERG: You got it. Line 14. THE COURT: Yes. I've got it. I'm with you now. Okay. BY MR. WEINBERG: Q "Tell me all the amounts that you have given him." -------------------------------------------------------------------- 738 And that's when he says, "A million and fifty." A Well, he says, "I don't know all the amounts." That's the first thing he says. Q "The total amounts to a little over a million dollars, a million and fifty." And my question to you is -- the question is, "Tell me the amounts that you have given him." I mean, did it -- did it concern you at all, as you sat there, that -- that just three weeks before, Mr. Minton had handed you -- had given you a $500,000 check? A No. Mr. Minton delivered to me a $500,000 check from a third party. It didn't concern me at all. Q Well, you don't think that when the question is asked how much he's given you -- THE COURT: Argumentative, Counselor. He's going to -- that's his testimony. MR. WEINBERG: Okay. THE COURT: You're going to have to save it for argument. BY MR. WEINBERG: Q Now -- A In hindsight. Q Hindsight what? A Hindsight, you know -- Q And when he's asked, on 19 -- on the same page, -------------------------------------------------------------------- 739 212, "Did you make these checks to him yourself? Did you make the checks to him yourself?" And the answer is, "Yes," did it concern you that -- having received a 500,000 check that you knew had not been made by him himself, that he was lying here? Did that concern you? A No. He's telling the truth. THE COURT: Counselor, you're not -- you're wasting your time. That's also argumentative. The deal is, Mr. Dandar has his version, Mr. Minton has his. You can make your argument, he'll make his. I'm going to resolve this. MR. WEINBERG: Okay. BY MR. WEINBERG: Q All of the checks in this case that are -- that are in evidence, the 2 million and fifty thousand dollars, all of those checks have on the legend Re: McPherson or McPherson case, other than the two UBS checks, is that right? A That's correct. Q And did that -- do you agree that those checks were intended by Mr. Minton to be used for the Lisa McPherson case? A In part. Q And not to be used by you personally for some personal expense? -------------------------------------------------------------------- 740 A I could use that money any way I saw fit, period. I could buy five estates and a warehouse and cars and yachts and planes and everything else that Mr. Rosen accused me of. But -- I could do anything I wanted to with that money. Q All right. And that -- and the -- and that understanding emanates from what document? A From the mouth of Mr. Minton. There's no document. Q It obviously emanated after Mr. Minton's January, 1998 deposition. Because you recall that he said in that deposition that you couldn't spend it for personal things. Do you remember that? A That depo will speak for itself. I think you're right. Q Okay. So when was it, in the course of time, that Mr. Minton told you orally that even though these checks say "McPherson case," you, Ken, can use them to buy anything you want to? THE WITNESS: Is this violating the Second DCA, Judge? I think it is. THE COURT: I'm sorry. What was the question? I was -- MR. WEINBERG: Could she read it back? THE REPORTER: "Okay. So when was it, in the course of time, that Mr. Minton told you orally that -------------------------------------------------------------------- 741 even though these checks say "McPherson case," you, Ken, can use them to buy anything you want to?" THE COURT: I don't think so. THE WITNESS: Should I -- are you saying to answer? THE COURT: Yes. THE WITNESS: All right. THE COURT: As I said, the truth of the matter is, the Second District didn't want an -- And to some extent, I could say yes, it's covered by the Second District, because the Second District said you weren't entitled to know what he got. That would include the 500 and that would include the 200 and that would include every other thing. But I think what I've said at this point is that it is out in the open, so -- and it's been a subject of this motion and it's out in the open, and therefore it seems as if, as to the checks and as to the moneys received at this time, it -- even though they have said clearly you're not to know about it, it seems odd that we would now try to enforce that. THE WITNESS: Well, he's -- THE COURT: So Mr. Minton has had his say. And I would assume that you can do one of two things. -------------------------------------------------------------------- 742 You can say to me, "I want the Second District opinion to stand." And then what happens is you have no response, and we have Mr. Minton's testimony -- THE WITNESS: Oh. THE COURT: -- and Ms. Brooks' testimony, if it relates to this. I don't know if it does or it doesn't. I can't remember. On the other hand, since he's testified it would be -- if you want to explore these moneys issues and since that's been alleged as a part of a perjury, I think, claim -- THE WITNESS: See that's -- THE COURT: -- then I'll go ahead and let you discuss it and not say that in any way, by your discussing it, you're waiving what you have received under the Second District opinion. But -- but I will also let you claim it and not discuss it. But I would -- I would think that since there's been a lot of discussion about this, and since there's an allegation about this, that you would want to. THE WITNESS: All right. THE COURT: So I will let you do that without waiving the -- the opinion. But once you start -------------------------------------------------------------------- 743 talking about this area, then I think you need to understand that it -- it can be explored. THE WITNESS: Well, now, that puts me back where I was before. Because if it can be explored -- THE COURT: Explored as to what Mr. Minton told you; what if anything you have in writing; when did he tell you -- I mean, you know, quite frankly, here again, I've read Mr. Minton's deposition. He will sometimes say it can be only used for the estate and he will sometimes say it can be used for anything Ken wanted to use it for. Mr. Minton is anything but completely clear all the time on this. And if you need to, I can find the page and line. I mean, it just is that way. I have no idea. If you want to explore this -- But I don't think that his deposition is necessarily consistent with his in-court testimony. THE WITNESS: Oh, no. Most definitely not. THE COURT: So I think you should have your say. A All right. There was -- THE COURT: But it's up to you. A Well, there was a time -- I just can't -- yeah. -------------------------------------------------------------------- 744 Since there's nothing in writing, it's hard to pinpoint a time. It's either '99, late '99, early 2000. That's what my best recollection is. BY MR. WEINBERG: Q And was it a -- a time when you were eyeball-to-eyeball with him or over the phone? A It could have been either one. What triggers my memory is that in 2000, I cancelled all my trials so you could take discovery and I could take discovery for our June, 2000 trial date, just like I did this year, except for one. And that certainly affects the income to a law firm. And he knew that. So that's -- that's the only thing I can try to use to pinpoint the approximate general time frame. Q So you told him that -- that because of the nature of the case, that you needed to be able to use the funds yourself as opposed to using them for the case? A Well, the -- in general -- generally speaking, that's correct. Q And -- and Mr. Minton was okay with the idea of -- of giving you funds that -- as you say, with no strings attached, that you could use for personal things as opposed to fighting Scientology? A Mr. Minton didn't care how I spent the money. He didn't even care -- back in the end of '97, after the first -------------------------------------------------------------------- 745 check was written, he didn't care. Didn't care in January, '98 deposition. He didn't care in '98 and '99. He didn't really care about anything. THE COURT: What was the conversation? Can you tell us as best you know -- THE WITNESS: I can't. THE COURT: -- what it was he said and what you said? THE WITNESS: I said, you know, "I need to --" something to the effect of, you know, "We're cancelling our other work for this case. The case is very burdensome and we need to -- I need to be able to put the money into general operating and just use it the way we use any other money we put in there, including fees and whatever." And he said, "There's no problem with that. I trust you. Go ahead." This thing he said in court about the $60,000, September, 2001, I don't know where he came up with that one. I don't ever remember that conversation. BY MR. WEINBERG: Q Did you document this in writing? A No. Q Why not? A That's the kind of relationship we had. -------------------------------------------------------------------- 746 Q Well, what's that mean? A Total trust. Q Well, did you -- did you -- I mean, you've produced already in this litigation the letters between -- or the one letter -- actually, the letters between your office and Mr. Minton with regard to some of the early checks; Mr. Minton's letter to -- the Kleenex-box letter, and a letter that you wrote to Ms. Liebreich as well about the money. And my question is, is there anything where you have documented this new understanding as to what you could do with the money either to Ms. Liebreich or -- you know, your client in the case, or to Mr. Minton? A No. Q And did you get -- did you get any approval from -- any approval from Ms. Liebreich that it was okay to take money that had, you know, "McPherson case" on the checks -- THE COURT: Well, that money didn't, did it, Counselor? MR. WEINBERG: All the checks except two. THE COURT: Oh, right. MR. WEINBERG: So -- THE COURT: That's a lot of money. That's $750,000. -------------------------------------------------------------------- 747 MR. WEINBERG: $750,000 didn't. But a million -- whatever that -- you know, your math is better than mine -- a million -- a million-two-fifty did. BY MR. WEINBERG: Q So my question is, for the -- for the million-two-fifty that had "McPherson case" on it, including that -- including the next to last check in May of 2001 that was made out to you personally that had "McPherson case," 250,000, on it, is there anything in writing that said, new deal, new arrangement, money can be used by Ken Dandar any way he wants to? A Nothing in writing. Q Either between you and Mr. Minton. THE COURT: You know what, Counselor? He's said nothing in writing. MR. WEINBERG: Okay. THE COURT: That means nothing in writing. Are you done with this area? MR. WEINBERG: Almost. THE COURT: Okay. My court reporter needs a break, and so do I, and so does everybody else. MR. WEINBERG: Why don't we take a break? I'm sort of flipping around. THE COURT: All right. -------------------------------------------------------------------- 748 MR. WEINBERG: Figure out -- THE COURT: We'll take a break till about five till 11 or 11, somewhere around there. 15 or 20 minutes. (A recess was taken at 10:42 a.m.) (The proceedings resumed at 11:17 a.m.) THE COURT: Okay. I have spoken to Judge Baird. He was just waiting to talk to me to see what was happening down here. And so I told him that if he could cancel his hearing for the 11th, I would use the time here. He was going to look and see what it was and let me know. And I also told him that since I had used up an awful lot of time here, that if he really wanted to have his hearing on the 11th, I'd let him do that too; that it was really his call. So he -- he would like -- he was going to look into it and see what it was and let me know. And so that's where that is. And I assume he'll do that fairly quickly. Okay. Mr. Dandar? You ready, Mr. Weinberg? MR. WIENBERG: Yes. THE COURT: All right. MR. WIENBERG: I've only got -- I've only got -------------------------------------------------------------------- 749 two of these. BY MR. WIENBERG: Q Now, Mr. Dandar, on January 25th, 2001, you were deposed in the breach case, is that correct? A Yes. Q And in that deposition, you were asked if Mr. Minton's testimony, that he had provided a million fifty thousand funding -- that is the testimony back in May of 2000 -- was accurate. Do you remember being asked that? A I'm looking at it, yes. Q In fact, you volunteered that Mr. Minton testified a million-fifty. Do you see on line 14? A Yes. Q And then on line 18 Mr. Rosen said, "Was that number accurate?" And you said, "Yeah." And then the question is, "This is for defraying costs in the wrongful death case?" And you said, "Yes." Do you see that? A Yes. Q And my question is, when you were asked those questions, "Is that money -- is that number accurate," did you consider the $500,000 May, 2000 check from Mr. Minton? A Yes. Because the question was, "How much he has paid you," and my answer was, "Minton -- Mr. Minton testified a million fifty thousand." So all that was -------------------------------------------------------------------- 750 accurate. Q Okay. My question was did you think about or consider the $500,000 check when you were answering that question? A No. Q And then you said -- then the question was, "This is for defraying costs in the wrongful death case," and you said, "yes," right? A That's correct. Q And that means that as of the time of your deposition in January of 2001, that there had not yet taken place this phone conversation or meeting with Mr. Minton -- A No. Q -- where he -- Let me just finish -- A I'm sorry. Q -- the question. Does that mean that as of the time of this deposition, the understanding was still, as indicated in the first letter from Mr. Minton and in the various letters with your client, that the moneys from Mr. Minton was for defraying the costs of the litigation? A No. Q So had -- when you were asked the question, "This is for defraying costs in the wrongful death case," and you -------------------------------------------------------------------- 751 said, "Yes," what did you mean by your answer, "yes"? A I was talking about Mr. Minton's testimony in May of 2000. Q So you were talking about the first million fifty thousand. A Right. And that question, as Mr. Rosen framed it, didn't say, "And this was only -- and only -- for defraying costs in the wrongful death case." The question he asked was answered correctly in my deposition. Q So you didn't think it was necessary at that point to tell -- to testify that in fact the arrangement was -- is that this was your money and you could do with it what you wanted to? A My -- the purpose was to answer only the question that's asked. Q So the answer to my question is you didn't think it was necessary to explain that you had an understanding that you could -- that there were no strings attached and it was your money. A Correct. Because he did not ask me that question. Q Now -- THE COURT: Was -- Okay. Thank you. MR. WIENBERG: Go ahead. -------------------------------------------------------------------- 752 THE COURT: That's all right. I -- I remember now. BY MR. WIENBERG: Q Now, I'm going to hand you a copy of a petition for writ of cert that you filed. MR. WIENBERG: And for the record, that is -- excuse me. That is dated January 29th, 2001. BY MR. WIENBERG: Q Which I think we've looked at before, but I want to refer you to -- to -- to a particular part of it. You're the one that prepared this writ? A Yes. Well, wait a minute. There's Minton and Brooks on here too, and the trust. So I prepared this somehow in conjunction with Mr. Merrett, who represented those other three petitioners. Q But you approved -- I mean, this was something that you approved when you -- when you did it, is that right? A Well, I approved it, yes. I mean, I signed it. THE COURT: I think you can assume that when a lawyer files something, he's approved it. BY MR. WIENBERG: Q Okay. If you'll just look at page 4 -- A Right. -------------------------------------------------------------------- 753 Q -- please -- A Page 4? Q Yes. A All right. Q Now, let me just go over this paragraph. And it's not just what's in yellow. There's actually a little bit more. "During the discovery --" you say in this pleading, "During the discovery process and as a result of a court order, the estate disclosed, in answers to interrogatories, that Robert Minton, an individual unrelated to the estate or its beneficiaries, had unconditionally given the estate's counsel a hundred thousand dollars in October, '97 to defray costs associated with litigating the action below. Minton did not expect this money to be returned unless the estate recovered enough funds in this case to permit repayment. Since that time, Minton has given the estate's counsel a total of a million fifty thousand." Do you see that? A Yes. Q Now, you said in here that the money was to defray costs associated with litigating the action below. Do you see that? A It says a hundred thousand -- the initial hundred thousand dollars was given to defray costs associated with -------------------------------------------------------------------- 754 litigating the action below, correct. Q But as of January 29th, 2001, when you filed this petition in the Second DCA, is it your position that the agreement at that point, the understanding -- I guess the oral understanding you had with Mr. Minton, had changed by that time -- A I believe -- Q -- and that -- A -- to the best of my recollection, yes. Q It had already changed. A Yes. What I was doing here when I said -- the next sentence, "Since that time, Minton has given the estate's counsel a total of a million fifty thousand," I footnoted that, number 4, referring the reader back to footnote number 3, which was pursuant to his deposition testimony of May -- which I think is May, 2000. Q Did it concern you -- when you put in this pleading to the Second DCA, which says, "Minton has given the estate's counsel a total of a million fifty thousand," did it concern you that -- that the $500,000 should be included because he gave that money to you as well, at the Bombay Bicycle Club? A No. Q Did that concern you when you wrote this? -------------------------------------------------------------------- 755 A Not at all. Q Did you think about it? A I'm sure I did. Q Did you discuss it with anyone? A No. Q Did you discuss it with -- well, you didn't discuss it with anyone; you didn't discuss with it Mr. Minton. A That's right. He didn't know about that. And I always -- I was doing this pursuant to the testimony of Mr. Minton. Q Now -- A Certainly -- THE COURT: Let me ask a question on this thing, on -- because I don't know when it was filed. MR. WIENBERG: January 29th, 2001. THE COURT: Is it 2001? MR. WIENBERG: Yes. THE COURT: I see a "1" through the "0." Is that -- do we all agree that's right? THE WITNESS: Where's that? THE COURT: On the back page it says, "The foregoing has been furnished by U.S. Mail this 29th day of January. The type is 2000, but "1" is written over the "0," so I'm assuming that's -------------------------------------------------------------------- 756 correct. MR. WIENBERG: The reason we know that it's 2001 is that Mr. Merrett signed this as well, and he didn't appear until May of 2000. THE COURT: Okay. You all didn't make this a "1." This is -- MR. WIENBERG: We didn't -- THE COURT: -- something that came to you like that. MR. WIENBERG: Right. THE COURT: Okay. I assumed it is 2001. BY MR. WIENBERG: Q That's correct, isn't it, Mr. Dandar? A I -- yes. Yes, I would think so. Q Well, you know -- THE COURT: We can always check it. THE WITNESS: Yeah. THE COURT: But I mean if we can agree -- we'll assume, unless we learn otherwise, that it's January, 2001. MR. WIENBERG: Right. BY MR. WIENBERG: Q I mean, what makes you feel comfortable about that, Mr. Dandar, is that Mr. Merrett didn't arrive on the scene until May of 2000, right? -------------------------------------------------------------------- 757 A That's true. Q Okay. A And I'm already talking about a May, 2000 deposition at footnote 3. Q Right. So obviously it's 2001. THE COURT: 1. THE WITNESS: Yes. THE COURT: Okay. BY MR. WIENBERG: Q Now, that -- actually, this pleading that was filed in the Second DCA, talking about the money, where it says, "Since that time --" and you're talking about since the first hundred thousand, "-- Mr. Minton has given the estate's counsel a total of a million fifty thousand --" It turns out, based on Mr. Minton's testimony now -- regardless of what you knew at the time, it turns out that that's false, because Mr. Minton has already testified -- and I believe I heard you tell Judge Schaeffer yesterday, in response to a question, that you don't dispute the fact at this point that it's Mr. Minton's money -- that that $500,000 was his money, and therefore he'd given you a million five hundred and fifty thousand. A I do dispute that. I don't -- I don't believe, based upon the way Mr. Minton answered questions in this hearing before Judge Schaeffer, by pleading the Fifth -------------------------------------------------------------------- 758 Amendment and not telling me and showing us proof that he's telling us the truth, based upon everything he told other people and Mr. Merrett, his own counsel, that the money was given with these UBS checks from third parties, not him. I believe Mr. Minton's lying in this courtroom when he says it's his money. Q So you -- so you still believe it's the fat man's money or somebody who goes by the moniker "fat man." A I do. 'Cause it makes no sense to me for it to be his money and lie about it. Q So therefore you don't think you have any obligation at this point to notify the Second DCA that this representation with regard to the money in this pleading of January 29th, 2001 is false -- A No. It's -- Q -- based on Mr. Minton's testimony. A It's true. The petition language is true. The deposition language is true. THE COURT: Would it also be fair to say that the -- I don't know, 'cause I don't know what this is all about -- is the exact amount of money as important as the fact that he's given a substantial amount of money? I don't know, because I don't know what -- THE WITNESS: No. The amount of money has -------------------------------------------------------------------- 759 nothing to do with the petition. THE COURT: Does the amount of money have anything to do with it? MR. WIENBERG: Well, it does if it's false, sure. THE COURT: Well, that could probably be debated too. I would assume -- I don't know what it is that -- Well, let's look and see what it is. MR. WIENBERG: Let's look. THE WITNESS: They were trying to get personal financial information from Mr. Minton and Ms. Brooks and the LMT and try to relate it to the wrongful death case. THE COURT: Is this one of the ones that we have one of the opinions on from the Second DCA? MR. MOXON: No. This is the one that we won, your Honor. THE COURT: Oh. That's definitely a different one. THE WITNESS: They denied cert. MR. MOXON: This is the one where they dismissed it in July, allowing all the discovery to go forward in the summer of 2001 as to the moneys that Minton had given to Mr. Dandar. That's why it -------------------------------------------------------------------- 760 was -- that was there was a conflict with different panels. The first panel ruled one way and the second panel ruled another way after Mr. Dandar made these representations. THE COURT: Well, the third panel must have ruled consistent with the second panel then. Because there was a different panel on the third case than there was on cases 1 and 2. THE WITNESS: Yes. MR. WIENBERG: There was some overlap. THE COURT: One. Judge Parker, I think was overlap. MR. MOXON: Right. THE COURT: So the majority were different. I mean -- MR. WIENBERG: I don't remember who was on the first panel. THE COURT: Well, the -- the third panel could have overruled Judge Parker, presumably, 'cause this was maybe the first time they ever heard it. Now, if there was some of them on the third -- the third case, that were also on whatever this petition was about, you might have individual judges making what could be argued were two different decisions. It wouldn't be -- hate to say this, it -------------------------------------------------------------------- 761 wouldn't be the first time that had happened. We try not to point that out, but it does happen. THE WITNESS: I think there's a total of five Second DCA judges, now, involved in these three decisions. THE COURT: We have Mr. Dandar's testimony. I'll read this over sometime and decide what -- MR. WIENBERG: Do you want me to mark -- Well, I think it's -- THE COURT: I think it's -- MR. WIENBERG: I think it's in there somewhere. THE COURT: I think it is too. BY MR. WIENBERG: Q Now, in light of what you just said about -- 'cause I had heard you -- I thought you said something different yesterday -- about your continued belief that this was not Mr. Minton's money. Mr. Dandar, you must be in somewhat of a quandary as to -- at this point as to who to pay back that $750,000 to. A No. They're going to -- you know, when the time comes to pay back this money, Mr. Minton is going to be the one, even after all this, to tell me who the check is made payable to, and I will make two separate checks for the UBS checks. Q Well, what if Mr. Minton says, "You make it -------------------------------------------------------------------- 762 payable to me, Mr. Dandar, 'cause it's my money"? A Well, then he's going to have to prove it. Q So if he says -- so this man that gave you and your firm $1,250,000 in checks written in the United States, you're going to tell him, if he says, "This is my money," at the end of this case, that you've got to prove it before you'll pay him? A That's right. Q But then if he says -- but if he gives you a name, you'll just write out a check to some -- to some name without knowing who the guy is? A I'll cross that bridge when I get to it. And it's none of your business how I do it. THE COURT: And we don't need to have that in court. You don't need to tell him -- THE WITNESS: I'm sorry. THE COURT: -- it's none of his business. THE WITNESS: I'm sorry. THE COURT: That's really kind of rude. THE WITNESS: I'm sorry. That is rude. THE COURT: Not for one lawyer to say -- I tend to agree with you that those decisions and those bridges will have to be crossed at the appropriate time. However, I would say that if Mr. Minton wants -------------------------------------------------------------------- 763 to bring a lawsuit on that issue, he'll probably prevail. And -- and you could get a lawyer to take that on a contingency fee, would be my guess. If I -- Mr. Minton doesn't have a lawyer, why -- and I'm retired by then and practicing law, I would take that case. I would not take the other agreement case, however. MR. WIENBERG: There might be a line of people -- THE COURT: Might be a line of people. I'm going to have to get in line for that. MR. LIROT: We'd just do an interpleader, Judge. MR. WIENBERG: All right. Let me go to a different area, your Honor. I think I'm moving along, Judge. THE COURT: Good. MR. WIENBERG: I'm making progress here. THE COURT: I'm proud of you. MR. WIENBERG: Thank you. THE COURT: I really am expecting you to finish with him today. MR. WIENBERG: Well, I'm making progress. And I've cut out stuff and I have to move around a -------------------------------------------------------------------- 764 little bit, but I'm doing -- BY MR. WIENBERG: Q Let me hand you a document -- MR. WIENBERG: This one, I'm going to have marked. If you can just put the next exhibit number on it, please? THE CLERK: 168. MR. WIENBERG: 168. BY MR. WIENBERG: Q Now, do you remember -- is this a document that you prepared and submitted to Judge Quesada in or about January 3rd, 2001? A Yes. Q Now, if you'll look at -- and this has to do with a motion for contempt and sanctions against Robert Minton, the Lisa McPherson Trust and Stacy Brooks for failing -- for refusing to answer questions dealing with personal financial matters? Is that what this had to do with? A And as well as the plaintiff's motion to strike witnesses and motion for protective order. Q And was there any particular reason why you prepared this document in behalf of -- of Mr. Minton, the Lisa McPherson Trust and Stacy Brooks? A No. I prepared this document on behalf of the -------------------------------------------------------------------- 765 plaintiff, in its motion to strike witnesses and motion for protective order, as the document states. Q All right. Now, if you go to paragraph -- Then you -- you submit various findings of fact that you propose that Judge Quesada adopt, is that correct? A Yes. Q If you go to number 6 on page 3, you say, quote, Robert S. Minton has provided funding to the estate of Lisa McPherson through plaintiff's counsel to defray the costs of the wrongful death lawsuit against the Church of Scientology for the death of Lisa McPherson. He begun -- he began this funding in October of '97, long before the Lisa McPherson Trust was formed. Consequently, Robert Minton's funding has nothing to do with the -- with the trust." My question to you is, as of the time you submitted these findings of fact to Judge Quesada in January of 2001, where you said that the funding -- you don't limit it to the first hundred thousand dollars -- was to defray the costs of the wrongful death case -- at the time you submitted this, did you -- had you already entered into this new oral agreement with Mr. Minton, where you could use the funds any way you wanted to? A I'm pretty sure. Q And is there a particular reason why you submitted these findings of fact to Judge Quesada? -------------------------------------------------------------------- 766 A No. Because -- Well, yeah. That's because that was the evidence that was presented to him. Q Well, is there any reason why you didn't present the evidence that this was your money to use any way you wanted to, as opposed to it was the estate's money to defray the costs of litigation? A Well, it doesn't say it was the estate's money. It said it was provided through counsel. Q To defray costs of the litigation -- A Right. Q -- in the wrongful death case, right? A Because that was the -- Mr. Minton's -- that was the evidence that was before the court. And that still covers -- I mean, that doesn't change anything. Q Well, isn't that diametrically opposed to -- to the position that -- that you are taking; that this is no-strings-attached; you can do anything you want to with the money? A No. Costs are costs, whatever they may be. THE COURT: Was there a time when Mr. Minton said this was only -- I mean, the letter's in evidence. I mean, the Kleenex box, and then your response. At that time, the money was to be used solely, -------------------------------------------------------------------- 767 it appears, to defray the costs -- THE WITNESS: Absolutely. THE COURT: -- which -- THE WITNESS: Absolutely. THE COURT: All right. And then what you're suggesting is there was some later time where Mr. Minton said -- where you told him you were having to -- THE WITNESS: Cancel trials -- THE COURT: -- cancel trials and what have you, and he just said, "Use the money however you need to use it." THE WITNESS: That's right. THE COURT: So there was always, always, an agreement that the money -- a certain portion, I presume, up till that time he said, "Use it however you want to," it was be used solely to defray the costs. THE WITNESS: Right. THE COURT: And then there was a subsequent time when it's your testimony that you could use it how you wanted to. THE WITNESS: It broadened. That's right. THE COURT: All right. -------------------------------------------------------------------- 768 BY MR. WIENBERG: Q But your testimony is that that subsequent time happened before you submitted these findings of fact to Judge Quesada, is that right? A That's right. Q And are you able to designate how much of the -- of the -- at this point, it's a million fifty thousand, plus the 500. And however you want to count that -- how much of that money was treated to defray -- THE COURT: That really isn't fair. He has testified at all times and continues to maintain until this very minute that that $500,000 is not from Mr. Minton. So that -- that $500,000 has nothing to do with this. MR. WIENBERG: Okay. Well, I'll ask the question differently. BY MR. WIENBERG: Q Was it your understanding from Mr. Minton, when he gave you that $500,000, that the money was to be used to defray the costs of litigation in the case? A No. At that time he just handed me this check from these third parties and said, "Here." That was it. Q So -- well -- A You talking about the check in May of 2000? Q Yes. -------------------------------------------------------------------- 769 A Or did I miss something? THE COURT: The check -- the UBS check. That's the one we're talking about. THE WITNESS: Right. THE COURT: At the Bombay Bicycle Club. THE WITNESS: Right. BY MR. WIENBERG: Q So he didn't -- did he tell you that this is to be used from this anonymous source in Europe, the fat man, to defray the costs of litigation? A No. THE COURT: I don't think the fat man came into that check, did it? MR. WIENBERG: You're right. BY MR. WIENBERG: Q Were you talking about the fat man in that check? A No. Q All right. The anonymous source. THE COURT: No. Don't. Friends in Europe. BY MR. WIENBERG: Q Friends in Europe. But he wouldn't tell you his name. A His or their or her. I mean, who knows? Q Did he tell you, when he handed you the check, gave you the check that you could use this any way you -------------------------------------------------------------------- 770 wanted to -- A No. Q -- and it didn't have to be used on the case? A No. Q Had you already had the conversation with him, and the new understanding at that point, when you got the $500,000, that you could use Minton's -- Mr. Minton's money any way you wanted to? A Yeah. As I answered before, that's my best recollection. It happened at the beginning of that year or at the end of '99. Q Okay. So is it -- is it -- is it fair to say then, whenever this happened, that -- that after that point that you had this understanding, this new understanding with Mr. Minton, that money was not the estate's money. It was your money. Is that a fair -- is that a fair statement? A No. The money was never the estate's money. Never, never. Q Okay. So -- THE COURT: Maybe -- BY MR. WIENBERG: Q -- all of the money -- THE COURT: Excuse me. BY MR. WIENBERG: Q All of the 2,050,000 money, regardless if it was -------------------------------------------------------------------- 771 written on a Mr. Minton personal bank account or a UBS check, all of that money -- none of that money was the estate's money. A That's correct. Q All of that money was either the law firm's money or Ken Dandar's money, right? A Right. THE COURT: A loan, he has always said, I believe. THE WITNESS: Yes. BY MR. WIENBERG: Q So the $500,000, the UBS check, was a loan from friends in Europe to you to do anything with it that you wanted to. A There were no conditions or restrictions placed on that check. It was just handed to me. Q All right. So the answer to my question is yes, you could do with it what you wanted to. A That's right. And that's only because of the trust relationship that I had with Mr. Minton. Q Well, did Mr. Minton tell you that these people in Europe were interested at all in supporting the litigation, the wrongful death case? A He didn't talk about them at all except the words and phrase "friends in Europe." -------------------------------------------------------------------- 772 Q Well, did he tell you -- did he explain to you -- because it must have come as some surprise -- why people in Europe would be interested in giving you or loaning you that much money? A No. We were more concerned with the person that was following us into the restaurant than discussing about his friends in Europe. Q So the $500,000, and for that matter the $250,000 UBS check, those are not contingent on winning the lawsuit as far as your obligation to repay? A That's an incorrect statement. I don't know why -- I don't understand what you're trying to say, but -- Q Well -- A -- it doesn't make sense. Q -- let me make it simple. You say that the 500,000 UBS check and the 250,000 UBS check have nothing to do with the wrongful death case. There's no condition that you use them for the wrongful death case. A Well, that's two different statements, Mr. Weinberg. Those checks are like all the other checks, all right? I treat them all the same at the end of the day. Q So your obligation on trust to repay these anonymous people the 750 is still contingent on the estate collecting money? -------------------------------------------------------------------- 773 A Correct. That's never changed. Q So is it the estate, from the collection of the money from either a settlement or a judgment, that actually is going to give you the 750,000 to repay these people in Europe? A That's where the money comes from, that's right. Q So you get the money, you can do with it what you want to -- I think you said buy a car or a house or whatever -- but the estate has to repay it. A I was being facetious when I said that. But I -- there was no restrictions on the money. And when the estate prevails in this case and there is money as a result of that, collection, of whatever -- however we do it, that's the moment in time when I will repay those loans. Q From the settlement proceeds. A That's right. Q So you don't have any risk at all in this matter. A Well, if you want to count five years of litigation and all my time and my law firm's time as being no risk, you can feel free to do that, but I don't look at it that way, 'cause I'm sure there's going to be five more years of appeals. THE COURT: If the money that you had -- if -- if there is money -- I'm not asking you to tell me -------------------------------------------------------------------- 774 if you have done this, but if there is money that you have used for some personal purpose as opposed to the estate, then I would presume that you would pay that from your -- your personal money instead of the estate's money. THE WITNESS: Absolutely. It would come out of my fee. THE COURT: Or -- yeah. In other words -- okay. If you -- if -- if you have used it all for the estate -- I never did see this. There was a disagreement or a dispute -- I know Rosen started reading off of your contingency fee, which of course is a standard contingency fee, and then you indicated that you had a later letter, and I never saw it. I don't know what it is. Is there a letter -- THE WITNESS: Yeah. THE COURT: -- that you have where it says that you are to pay the costs and you are responsible for the costs? THE WITNESS: Yes. THE COURT: And they do not pay the costs? THE WITNESS: Never. They -- THE COURT: Well, then you better get that in -------------------------------------------------------------------- 775 the record at the appropriate time. But in any event, I would presume that a standard contingency fee is, you get paid off the top -- THE WITNESS: Yes. THE COURT: -- and then costs are paid -- THE WITNESS: Yes. THE COURT: -- and then the balance goes to the -- whoever these people are. THE WITNESS: Yes. THE COURT: All right. Now, if -- THE WITNESS: Actually, the balance goes into the estate before the probate court. THE COURT: Right. It goes into the estate. It goes -- that's who's suing, so therefore it is to the estate -- THE WITNESS: Right. THE COURT: -- right? Okay. Now, if in fact -- I'm going to use a hypothetical here -- you had spent $250,000, as is suggested from time to time, for property, cars -- I don't know what -- I mean, I know you say that's facetious, but let's say that that's true. THE WITNESS: Okay. THE COURT: I would assume that that money -------------------------------------------------------------------- 776 would be paid out of your fee -- THE WITNESS: Absolutely. THE COURT: -- and not out of the proceeds that would otherwise go to the estate. THE WITNESS: That's right. THE COURT: And I would assume that whatever you have paid on the estate for costs or whatever would come out of the money that would otherwise go to the estate before that money is paid to the estate. THE WITNESS: That's correct. There's nothing hocus-pocus about this. THE COURT: I mean, whether you'd have to or not, I would assume that that's how you would handle it. THE WITNESS: That's exactly right. MR. WIENBERG: Okay, your Honor, since you raised it, why don't we just hand up this document, which Mr. Dandar's already produced, which I think sort of addresses this issue. THE COURT: Okay. MR. WIENBERG: If we -- if -- we can ask him if that's the one he's talking about. THE WITNESS: This is the letter that explains and clarifies and amends the normal retainer -------------------------------------------------------------------- 777 agreement that is -- that was signed by Dell Liebreich and Fannie McPherson, but it only -- BY MR. WIENBERG: Q Well, hold on. I don't think the judge has finished reading it. A All right. Q I had a question -- THE COURT: Well, it doesn't really clarify it to me. MR. WIENBERG: It doesn't to me either, and I was going to ask that question. BY MR. WIENBERG: Q All it says is that the individuals aren't responsible, but the estate is. Where does it say that you're responsible for paying back money that you've used personally? THE COURT: No. That's not what I was looking for. MR. WIENBERG: Okay. THE COURT: I was looking for that -- what I presumed in the -- in the -- in the standard contingency fee -- MR. WIENBERG: Here's the agreement -- THE COURT: Right. MR. WIENBERG: -- too. -------------------------------------------------------------------- 778 But -- but -- I don't have another copy of it, but we can share. THE COURT: Right. This is how it always works. It says they're responsible for the costs. THE WITNESS: Right at the top, Judge, the second paragraph. THE COURT: Yeah. It says, "We understand that we are obligated to pay these costs whether or not our claim is successful." MR. WIENBERG: See, I think that all the letter says is that the individual people aren't responsible, but that the estate, which is the real client in this case, as you've pointed out, is responsible for the costs. THE COURT: What I know, just from my practice of law, is that when a -- when a law firm undertakes a contingency fee from a poor person that does not have any money to pay costs, there is no thought that those people are going to advance the costs; that the law firm advanced the costs -- advances the costs. MR. WIENBERG: Yeah. THE COURT: And the agreement and the understanding is usually that if there's a recovery, the -- the -- -------------------------------------------------------------------- 779 MR. WIENBERG: Costs come off the top. THE COURT: -- the costs come off the top after the lawyer's fee. MR. WIENBERG: Right. THE COURT: But -- and here -- here's the little confusing part, is, there's -- there's a problem if in fact there is not a recovery as to whether or not there's ever to be any lawsuit against the -- in other words, whether the lawyer could recover from the individual if they should win the lottery the next week. Because some -- some law firms, you know, clearly advance the costs. And if they lose, they eat them. MR. WIENBERG: Right. And this agreement says that the estate, the client, is responsible for the costs -- THE COURT: Right. MR. WIENBERG: -- which means that the law firm could go against it if it wanted to. THE COURT: If it wanted to. MR. WIENBERG: And this letter says the same thing. THE COURT: Yeah. That's what I said. MR. WIENBERG: The last -- THE COURT: Yeah. I assumed that there was -------------------------------------------------------------------- 780 going to be something that said, "Look, if you don't win, I pay the costs, and I just have to absorb those somehow." THE WITNESS: That's paragraph 3, the first sentence. MR. WIENBERG: Yeah. But that's just the individuals. THE COURT: Right. MR. WIENBERG: It says, "In the unlikely event --" THE WITNESS: Well -- MR. WIENBERG: "-- the defendants obtain a cost judgment," meaning that we lose, "only the estate," which is your real client, "is liable for those costs." BY MR. WIENBERG: Q Doesn't say you're liable for them, does it? A No. This is if Scientology wins and gets a cost judgment, only the estate is liable for that. And we already know the estate has no assets. Q Yeah. But that's what the original agreement says. THE COURT: No. A No. The original agreement is actually signed by Fannie McPherson and Dell Liebreich. -------------------------------------------------------------------- 781 THE COURT: Well, where is that? THE WITNESS: That right there, Judge. THE COURT: And this says they're responsible for the costs. THE WITNESS: Yes. And I changed it in the letter, and I added Ann Carlson, because Fannie had died by this time, February 10th of '97. THE COURT: But what you changed it to read is that the estate is liable for the costs. THE WITNESS: No. THE COURT: Well -- THE WITNESS: Only if they're -- Scientology were able to get a cost judgment against the estate. They would not be personally liable for my costs. That's what the first sentence of paragraph 3 says. THE COURT: So you're saying that there's a difference here. This -- this sentence, "Neither of you are personally liable for the costs incurred." THE WITNESS: Right. That would be my costs. THE COURT: Well, of course that's true in any event. They are not -- Well, he says they're his clients. See, this is the unusual thing -- MR. WIENBERG: Yes. THE COURT: -- as to who's the client. Because -------------------------------------------------------------------- 782 you see, I think of the client as the estate, and then -- but you're saying because they are your clients; that you are telling them they are not personally responsible. THE WITNESS: That's right. THE COURT: Now, you don't -- You make that real clear, I might add. THE WITNESS: I made -- THE COURT: And then you're saying in the unlikely event -- you're saying, "Win, lose or draw, you're not responsible for the costs." THE WITNESS: They aren't. THE COURT: But if the church wins and costs are assessed, only the estate's liable for the costs. THE WITNESS: Correct. THE COURT: What; is that to be sure you're not liable for the costs? Is that it? THE WITNESS: That means that the client is not responsible for any cost judgment entered against the estate; the client being the individuals. THE COURT: I suspect that that's subject to interpretation. I mean -- MR. WIENBERG: Right. THE COURT: -- that is -- that is the -- that -------------------------------------------------------------------- 783 isn't the way I'd write mine. I mean, I would make it real clear, not only because I would want it to be very clear for the clients; I would want it to be clear, that in fact what I would be very careful of is I would want to be sure that if I -- that if in fact they lost, that somehow the prevailing party couldn't come against me personally -- MR. WIENBERG: Right. THE COURT: -- with guaranteed costs for the costs, and I'd want to make sure that it was real clear. THE WITNESS: But -- THE COURT: And this is anything but. But you know -- MR. WIENBERG: Just for the record, I'm going to mark these -- THE COURT: Yeah. MR. WIENBERG: And they were put -- THE COURT: You don't mind if we put these in now? THE WITNESS: No. No. That was the intent of that letter, though, they would never be liable for costs by me or Scientology. THE CLERK: 169. -------------------------------------------------------------------- 784 MR. WIENBERG: The retainer agreement will be 169-A. And unfortunately, it's my only copy. THE COURT: Yeah. I don't think you can ever sign an agreement that would bind the other party with your client. I mean, if they want to sue your clients for costs -- THE WITNESS: Well, they'd have to go outside of the estate to do that. THE COURT: Well, that's their -- I mean, they can -- if they prevail and they decide to go after a cost judgment, they can go after that any way they want. Now, whether they -- As I said, this is why I would say that the party is the estate, and that's who they would have to go after costs. And of course, if you say the estate didn't prevail, there wouldn't be anything in the estate to collect. THE WITNESS: Correct. THE COURT: However -- that's what I said -- I'd want to be sure my agreement was very carefully drawn. Because if my client was the individuals and not the estate, and that's who you're really representing then, you know, I suppose an argument could be made they can go against the individuals. -------------------------------------------------------------------- 785 You can't alter that by some letter that you send to your clients. THE WITNESS: No. They would have to have something that shows that the individuals are responsible for their cost judgment over -- outside of these -- THE COURT: How about you? If you're responsible for the costs, can they come against you if they win? THE WITNESS: No. They can only go by the law, who's responsible for costs. THE COURT: Well, it depends. You just said you were. So if you are, does that mean they can come against you? THE WITNESS: No. No. THE COURT: Well, that may be an issue too one day. THE WITNESS: When you say they, you talking about -- THE COURT: The church. THE WITNESS: Oh, no, no. They can only go against the estate. THE COURT: Well, I suppose it just depends. And that's why I said if it were me and I were entering into this type of litigation, my agreement -------------------------------------------------------------------- 786 would be very carefully drawn and very clearly drawn, so that in the event anybody was ever going to interpret who was responsible for the costs, it would be very clear. Your -- your agreement and your letter does not make it clear. I understand what you're saying and I understand how you're testifying, but it's not -- You know, I remember the old parole evidence rule, trying to vary and what have you terms of written agreements, and how difficult that is and so forth. I would suggest in the future that if you draw more of these things, that you are more careful, quite frankly. BY MR. WIENBERG: Q Now, from time to time in this litigation, you have filed pleadings in which you have raised objections regarding discovery concerning financial disclosure issues and other issues alleging that it is a waste of the assets of the estate. Do you -- do you remember saying that? A Yes. Q Wasting valuable assets of the estate? And my question to you is, what assets are you talking about? A Time and expense necessary to have me or my client -------------------------------------------------------------------- 787 respond to the frivolous discovery. Q So you're not talking about the Minton money that was given to defray costs of litigation. A No. THE COURT: I wonder if you ever wonder how annoying it must be to me, to Judge Moody, to Judge Baird and everybody else to hear you continually say that? There have been an awful lot of judges that you have basically thought that their orders were wrong -- that may be one thing. It's one thing to say that a judge is wrong. And you can take that up on appeal, although many of these very judges have been affirmed on appeal. But when you talk about frivolous, if they're doing something and a judge is saying they're correct, it hardly is frivolous. THE WITNESS: I'm not talking about that. Judge Moody agreed with most of the time -- in fact I would say 99 percent of the time when we said it was frivolous. He greatly restricted the scope of discovery against the Lisa McPherson Trust, Mr. Minton and Ms. Brooks. THE COURT: Well, then perhaps you can impress Judge Moody, but my colleagues happen to be Judge Beach, Judge Quesada and myself. THE WITNESS: But -- -------------------------------------------------------------------- 788 THE COURT: I can understand that you can disagree with the court's order. I have it happen all the time. There probably is no one in this room that agreed with every -- not one person that would have agreed with every order that I put out the other day. That is a given. I understand that, and I can almost tell you who agreed with which ones. However, you don't say that the other side, when they did something and you lost, was frivolous. You might say, "I can't believe the judge ruled that way." THE WITNESS: No. Judge, that's why I'm trying to correct you and your impression of what Mr. Weinberg just said. I never called the court's order frivolous; I called the request by the Church of Scientology frivolous. THE COURT: Yes. But if the church won -- THE WITNESS: That's when -- I don't use the word anymore. THE COURT: Okay. THE WITNESS: I'm going to try not to use the word, or "outrageous," again. THE COURT: Well, be real careful when you talk about something that they've done as frivolous, when they've won and a judge has entered an order -------------------------------------------------------------------- 789 allowing whatever they'd asked for, that you call frivolous, to happen. THE WITNESS: Right. I have never -- THE COURT: Because I find it offensive, and I'm sure another judge would find it offensive too. THE WITNESS: I would agree with that. I would never say frivolous after the court ordered me to do something. THE COURT: Somehow it comes across that way when I read some of your stuff. THE WITNESS: All right. THE COURT: So be very careful. THE WITNESS: I certainly will. THE COURT: Excuse me. MR. WIENBERG: I was just going to go on or -- THE COURT: Well, actually, let's stop for lunch. MR. WIENBERG: Okay. THE COURT: That was my last lecture, Mr. Dandar, for the day. Maybe. Probably not. THE WITNESS: It's not 4:00 yet. THE COURT: Probably not. I'll probably have several for all of you. MR. WIENBERG: I'm hoping I can avoid it today. -------------------------------------------------------------------- 790 THE COURT: All right. We're in recess until 1:30. I'm sorry to take such a long lunch. I've got some calls I've got to make. (A recess was taken at 12:02 p.m.) -------------------------------------------------------------------- 791 REPORTER'S CERTIFICATE STATE OF FLORIDA ) COUNTY OF PINELLAS ) I, Donna M. Kanabay, RMR, CRR, certify that I was authorized to and did stenographically report the proceedings herein, and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. WITNESS my hand and official seal this 6th day of June, 2002. ______________________________ DONNA M. 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