||||| From: "Jesse Prince" Newsgroups: alt.religion.scientology Subject: Interesting Information Date: Mon, 23 Dec 2002 20:00:28 -0500 Lines: 7383 X-Priority: 3 X-MSMail-Priority: Normal X-Newsreader: Microsoft Outlook Express 6.00.2800.1106 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1106 NNTP-Posting-Host: 4.47.206.155 X-Original-NNTP-Posting-Host: 4.47.206.155 Message-ID: <3e07b1be@news2.lightlink.com> X-Trace: 23 Dec 2002 20:00:46 -0500, 4.47.206.155 X-Original-Trace: 23 Dec 2002 20:00:46 -0500, 4.47.206.155 Organization: Lightlink Internet Path: news2.lightlink.com Xref: news2.lightlink.com alt.religion.scientology:1580587 1 1 2 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA 3 CASE NO. 00-5682-CI-11 4 DELL LIEBREICH, as Personal 5 Representative of the ESTATE OF LISA McPHERSON, 6 7 Plaintiff, 8 vs. 9 CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS 10 JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S., 11 Defendants. 12 _______________________________________/ 13 14 DEPOSITION OF: Plaintiff's Motion to Strike Defendant's Witnesses; 15 Church of Scientology Flag Service 16 Organization's Motion to Disqualify Plaintiff's Counsel on the Basis of the 17 RentClub Doctrine. 18 DATE: December 18, 2002, 9:31 a.m. 19 PLACE: Coutroom B, Judicial Building St. Petersburg, Florida. 20 BEFORE: Hon. Susan F. Schaeffer, 21 Circuit Judge. 22 REPORTED BY: Donna M. Kanabay RMR, CRR, Notary Public, 23 State of Florida at large. 24 25 Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 2 1 APPEARANCES: 2 MR. KENNAN G. DANDAR DANDAR & DANDAR 3 1715 North Westshore Boulevard Suite 750 4 Tampa, FL 33607 Attorney for Plaintiff. 5 MR. LUKE CHARLES LIROT 6 LUKE CHARLES LIROT, PA 112 N East Street, Street, Suite B 7 Tampa, FL 33602-4108 Attorney for Plaintiff. 8 9 MR. LEE FUGATE ZUCKERMAN, SPAEDER 10 101 E. Kennedy Blvd, Suite 1200 Tampa, FL 33602-5147 11 Attorneys for Church of Scientology Flag Service Organization. 12 MICHAEL LEE HERTZBERG 13 740 Broadway, Fifth Floor New York, New York 10003 14 Attorney for Church of Scientology Flag Service Organization. 15 MR. ERIC M. LIEBERMAN 16 RABINOWITZ, BOUDIN, STANDARD 740 Broadway at Astor Place 17 New York, NY 10003-9518 Attorney for Church of Scientology Flag Service 18 Organization. 19 MR. WILLIAM T. DRESCHER DRESCHER & DRESCHER 20 23679 Calabasas Rd. Calabasas, California 91302-1502 21 Attorney for Church of Scientology Flag Service Organization. 22 23 24 25 Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 3 1 THE COURT: Thank you all for coming today. We 2 had scheduled this, I believe, for next -- was it 3 Tuesday? 4 MR. FUGATE: Next Monday. 5 THE COURT: Next Monday. And that is the week 6 that -- since Christmas falls on Wednesday, a lot of 7 folks are planning on taking off Monday and Tuesday, 8 and this should free those days up for everybody. 9 What we had agreed to do next Monday were two 10 motions. One was what I'm going to refer to as the 11 RentClub motion, and the other was a request -- 12 Plaintiff's motion to strike defendant's witnesses. 13 So we're going to try to put those two things in 14 this morning. And then as I said, I do not intend 15 to have that hearing next Monday, okay? 16 I can take those in any order you want. 17 Mr. Lirot. Hello. 18 MR. LIROT: Judge, if I may, yesterday I got an 19 emergency motion. There's another matter pending in 20 the case of Robert Minton versus Peter Alexander 21 related to the -- to the film The Profit that I know 22 that this court's familiar with. Mr. McGowan set a 23 10:00 emergency motion in front of Judge Penick, and 24 Judge Penick's judicial assistant asked if I could 25 take a break at 10:00. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 4 1 Now, that puts me in an awkward position 2 because I wanted to work with Mr. Dandar on 3 certainly the RentClub motion. But -- 4 THE COURT: For how long? 5 MR. LIROT: I wouldn't imagine more than 15 6 minutes. 7 THE COURT: Sure. I'll take a break. 8 MR. LIROT: Thank you very much, your Honor. I 9 apologize for the inconvenience. 10 MR. FUGATE: Well, Judge, if that's the case, 11 then I would suggest we do the RentClub first and it 12 might be finished by then. I understood you were 13 going to do 30 minutes a side. 14 THE COURT: To tell you the truth, it's 9:30, 15 so it's not going to be finished. Let's do the 16 other one, which -- 17 MR. FUGATE: Okay. 18 THE COURT: -- I think we can finish by 10. 19 MR. FUGATE: Well, Judge, I have two things, if 20 I could. I have a motion pro hac vice for 21 Mr. Drescher, since he is -- had done some of the 22 research on the RentClub and Mr. Rosen was not able 23 to be here today, and he's been working with 24 Mr. Rosen. And I have that original for the court. 25 THE COURT: Okay. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 5 1 MR. FUGATE: And I've given a copy to -- 2 THE COURT: This is a new name. Who is 3 Mr. Drescher? 4 MR. DRESCHER: I am, your Honor. 5 THE COURT: I gathered you were when you stood 6 up. 7 MR. DRESCHER: I'm a lawyer from California, 8 your Honor. I've represented Flag and various 9 churches for a number of years. And Mr. Rosen's 10 asked me to help out, get him up to speed. 11 THE COURT: All right. 12 MR. DRESCHER: He has been taking some medical 13 tests, so I'm sort of pinch-hitting for him on these 14 issues. 15 MR. DANDAR: Judge, the only -- the matter that 16 I would bring to the court's attention is that when 17 Mr. Drescher came Tampa to represent the Church of 18 Scientology International in this case, he demanded 19 from Judge Moody the return of Lisa McPherson's PC 20 folders, and he also told Judge Moody that if he 21 ordered -- if Judge Moody made an order for the 22 production of the PC folders, that he would not obey 23 the court's order on behalf of the Church of 24 Scientology International. 25 THE COURT: But he did, didn't he? Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 6 1 MR. DANDAR: There was no further orders coming 2 at that time. They were demanding the PC folders 3 that I had, the copies, back. 4 THE COURT: Oh. 5 MR. DRESCHER: If I may, your Honor? 6 Johnson -- Mr. Paul Johnson actually made the 7 argument. My -- as you can see from my application, 8 because the motion I had sought permission to argue 9 was denied by Judge Moody as untimely, he considered 10 my application for pro hac vice admission to be moot 11 and I got to sit through the argument and not utter 12 a word. 13 As your Honor points out, the entire matter was 14 handled without any curfluffle whatsoever. And so 15 I'll stand on what Judge Moody said, which was, if 16 you want to argue some other motion some other time, 17 glad to hear it, come on back. But that was the sum 18 and substance of it, including my silence during 19 local counsel's argument to that issue. 20 MR. DANDAR: Mr. Drescher is also the attorney 21 who wrote a letter to my reluctant witness, expert 22 witness, Bill Franks, after I subpoenaed him. To 23 Mr. Franks, it was a threatening letter that he was 24 going to get sued if he honored the subpoena to 25 appear in court. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 7 1 MR. DRESCHER: Your Honor, it was neither of 2 those. And it was before the subpoena. In fact, 3 I'm the one, according to Mr. Franks, who alerted 4 him to the fact that Mr. Dandar had placed him on 5 the witness list. My sum and substance of my 6 communication with Mr. Franks was that he should 7 contact Mr. Fugate, since he was on the witness list 8 and wasn't aware of it when I first contacted him. 9 THE COURT: I think the thing that concerns 10 me -- I'm going to grant the motion, but I think the 11 thing that concerns me is we've got so many lawyers 12 in this case pro hac vice -- I do not intend to have 13 this case handled by nothing but outside-Florida 14 lawyers. 15 I mean, in other words, I presume we're going 16 to have somebody locally representing the church. 17 And are you it? Are you the only one? 18 MR. FUGATE: I am, your Honor. But I can -- I 19 can address two things. 20 One thing I'd like to tell the court, since I 21 signed the motion and sponsored Mr. Drescher, I've 22 worked with him and I found him to be an honest, 23 ethical lawyer, and I wouldn't sponsor him 24 otherwise. Number two, in response to that 25 observation, we're doing a lot on the fly, and in Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 8 1 order to keep the process going, we've brought in 2 Mr. Drescher, we've brought in Ms. Yingling for the 3 mediation purposes, we've brought in Mr. Rosen. And 4 everybody's separated up so we can stay on course. 5 And for the trial you'll have a limited number 6 of lawyers, and I will be present as Florida 7 counsel. 8 And I think you're going to have -- we haven't 9 got there yet. I think that's going to be in our 10 next pretrial. We're going to try and determine how 11 we can do this in an orderly fashion without the 12 cast that we've had. But we just -- you know, right 13 now we're responding to everything. 14 And I'm asking today, because there's some 15 issues that he has done, Mr. Rosen couldn't be here. 16 And you know, I appreciate you granting it. 17 THE COURT: All right. 18 MR. DRESCHER: Thank you, your Honor. 19 THE COURT: That will be granted, I suppose, as 20 all pro hac vice motions are, subject to change if 21 there's a reason for it. 22 MR. DRESCHER: I understand. Thank you, your 23 Honor. 24 MR. FUGATE: I have an order which I'll hand 25 up, Judge. And at the same time I've handed to Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 9 1 Mr. Dandar a proposed order on the autopsy photo 2 negatives that he's had a chance to review. I don't 3 know if he has any objection to it. If he 4 doesn't -- 5 This is the motion where, because of the -- 6 THE COURT: I remember you all were in 7 agreement and some order was going to be drawn up. 8 MR. DANDAR: The order -- the order is fine. 9 THE COURT: Fine. Just give me the order. 10 MR. FUGATE: I'm going to give it to you to 11 look at because it may not comport with your -- 12 And this is the copies of the pro hac order. 13 THE COURT: Okay. Looks fine to me. I think 14 it's what everybody agreed. 15 And Mr. Dandar, you're okay with this? 16 MR. DANDAR: Yes. 17 THE COURT: Today's date is? 18 MR. FUGATE: The 18th. 19 THE COURT: The 18th. 20 Mr. Fugate, I'll take the original. If -- when 21 we let Mr. Lirot go downstairs, if you'll remind me, 22 I'll take it, have Mrs. Rudd stamp these copies and 23 I'll pass them out. 24 MR. FUGATE: Thank you. 25 THE COURT: On the granting of pro hac vice, as Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 10 1 I said, and I really do want to make this clear, 2 I've now had Mr. Moxon in pro hac vice, I've had 3 Mr. Rosen -- 4 Who, by the way, as I started to look over 5 things, it dawned on me that Mr. Pope made an 6 argument in front of me, and one of the things on 7 consolidation was that there was separate counsel, 8 now all of a sudden there aren't separate counsel, 9 everybody's all mixed in together, so -- but 10 nonetheless we have Mr. Rosen pro hac vice; now we 11 have Mr. Drescher pro hac vice. 12 There may come a time where -- this is, I 13 believe, at my -- at my discretion, as long as I 14 don't abuse it -- where I may say you just got too 15 many lawyers, I want to pare it back. And if you 16 don't agree to it, I may just take one of these pro 17 hac vices and say no more. But for now I'm 18 perfectly happy to have Mr. Drescher here and/or 19 anybody else who wants to -- 20 MR. FUGATE: Thank you -- 21 THE COURT: -- come in and represent the 22 church. 23 MR. FUGATE: I think then the motion would be 24 Mr. Dandar's motion to strike all of defendant's 25 witnesses. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 11 1 THE COURT: Did you tell me it was the 18th? 2 Is that what somebody -- 3 MR. FUGATE: Yes, your Honor. It's the 18th. 4 THE COURT: All right. I've signed both the 5 originals, I have the copies that you've provided. 6 I'll have them stamped during the break and return 7 them. That's assuming somebody reminds me in case I 8 forget. 9 MR. FUGATE: I will do that. 10 THE COURT: Okay. Mr. Dandar, I noticed that 11 the original motion you have filed on the pro hac 12 vice, or is this it, Mr. Fugate? 13 MR. FUGATE: That's the original. I can -- 14 THE COURT: Better take the motion back 'cause 15 I -- 16 MR. FUGATE: And file it with the clerk? 17 THE COURT: Yes. 18 MR. FUGATE: All right. We'll do that. 19 THE COURT: And how about the original order? 20 I've got the original order. That's fine. 21 I'll have Sue file that. 22 I noticed that there was a -- some assertions 23 made in your motion to strike, and then there were 24 some responses that said not so, and I wondered if 25 that narrowed the issues. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 12 1 MR. DANDAR: Judge, I don't expect you to 2 strike all their witnesses, because they did file a 3 prior witness list when this was set for June of 4 2002. However, what I'm really concerned about are 5 these -- all these new expert witnesses that they 6 filed late. 7 THE COURT: Okay. Well, look, that's not going 8 to get it. 9 Here we go. They say that this Jane 10 Kerstetter -- let's see -- Jane Kerstetter, your 11 assertion that she was not identified before 12 November 12th is incorrect. She was identified on 13 October 28th, Exhibit C. And I turn to Exhibit C 14 and sure enough, there it is, dated October 28th, 15 stamped in, civil court records, October 28th. And 16 it's well before November the 12th. So why do I 17 have to deal with that? 18 MR. DANDAR: You don't. That's fine. I 19 received it -- 20 THE COURT: Well, then -- 21 MR. DANDAR: I received it on November 12th. I 22 can't imagine why. 23 THE COURT: All right. Well -- 24 MR. DANDAR: That's what -- 25 THE COURT: -- in any event, that's not an Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 13 1 issue. So -- so we're going to take Jane Kerstetter 2 and strike her off the list -- 3 MR. DANDAR: But is she redundant of the other 4 witnesses? You said that we're limited on the 5 expert witnesses to one per specialty. 6 THE COURT: That's true. 7 MR. DANDAR: And so I'd like to hear how she's 8 different from all the other ones. 9 THE COURT: Well, the truth of the matter is, 10 is both sides appear to have more than one expert on 11 some of these more important things. At some point 12 in time, we may narrow this and I may say to both 13 sides, "Who are you going to use for cause of death 14 and who are you going to use for" -- 15 I saw something yesterday that there was going 16 to be a dehydration expert. I don't know about 17 that. I mean, to me, you've got your medical 18 examiners in cause of death and you've got your 19 vitreous people who -- I'm sorry -- who deal with 20 dehydration. I don't know that we need a 21 dehydration expert. At some point I'm going to sit 22 down and say, "Tell me who you think you're going to 23 call." 24 I also saw in this -- in this motion, this 25 opposition to plaintiff's motion, "In accordance Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 14 1 with the court's earlier comment, defendant's 2 witnesses Dr. Baden and Wecht will also testify to 3 discrete issues and will not duplicate each other's 4 testimony." 5 The court never made such a comment. As a 6 matter of fact, quite to the contrary. I made it 7 clear that no matter what his request -- 8 You may have filed this prior to the court's 9 comment -- 10 MR. FUGATE: You -- 11 THE COURT: -- assuming what the court was 12 going to rule or say. 13 MR. FUGATE: Well, actually, Judge, since I 14 signed off on it, when we had -- it was a hearing 15 within a hearing. We just started talking about 16 experts, I think, and either -- frankly it was 17 either the vitreous hearings or the beginning of the 18 omnibus hearings. And you said something to the 19 effect that you can have -- and you named out the 20 number of people we could have, and if there were 21 people that were going to testify, I believe 22 something to the effect to particular discrete 23 issues, you know, that was fine, although they may 24 not be otherwise admissible. You were going to 25 reserve on that. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 15 1 But I was also present in the case management 2 conference last week, and you were pretty clear -- 3 THE COURT: Okay. 4 MR. FUGATE: -- in your comments there. 5 And I think really the upshot of this whole 6 thing is that we are identifying witnesses; we have 7 an obligation to do that; the order says, as they 8 become known, we're supposed to provide them. 9 They're notified to Mr. Dandar so he has an 10 opportunity to depose them. 11 The fact of the matter is, a lot of witnesses 12 on both sides of the witness lists may never see the 13 stand, for a variety of reasons, but they're 14 notified so that he has an opportunity to depose 15 them. And in fact, we're deposing some of these -- 16 THE COURT: It seems like you're going on and 17 on. I just want to point out -- 18 MR. FUGATE: Yeah. 19 THE COURT: -- that what you say in here that 20 the court said may have been true at some other 21 point in time. I clarified it at the case 22 management pretrial hearing conference. 23 So Dr. Kerstetter is -- I don't know what she 24 is, but apparently at some point in time we'll know 25 exactly what expertise she has and whether there's Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 16 1 anybody else. And if there's more than one, I'll 2 ask both sides to please tell the other. 3 There's plenty of things to get ready for. It 4 would be nice if you knew who -- what witnesses each 5 was going to call for each speciality. 6 William Fogarty, it says here that "plaintiff's 7 assertion that Dr. Fogarty was not on the 8 supplemental witness list on November 12 was 9 incorrect. He was." Was he? 10 MR. DANDAR: No. He's listed in answers to 11 interrogatories, according to my motion -- 12 THE COURT: Well, I know, but as I said, they 13 responded saying that he's on the 2000 -- or the 14 November 12th witness list. So I guess we're going 15 to have to go look at it. 16 MR. DANDAR: I guess so. I didn't -- 17 THE COURT: You all say he's on there, so if 18 you'll find me the page -- 19 MR. FUGATE: Page 7, your Honor. I'm sorry. 20 THE COURT: Here it is, page 9. Dr. William 21 Fogarty. Is that who we're talking about? 22 MR. FUGATE: That's who we're talking about. 23 THE COURT: Okay. 24 MR. FUGATE: I had a different list. I'm 25 sorry, your Honor. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 17 1 THE COURT: I'm on page 9 of the witness list 2 that was filed on November 12th. 3 MR. FUGATE: Yes, Judge. 4 MR. DANDAR: November 12th -- they were 5 supposed to be filed on October 28th, according to 6 your order. 7 MR. FUGATE: I think that -- 8 MR. DANDAR: What number is he on page 9? 9 MR. FUGATE: 87, I believe. 10 MR. DANDAR: I'm sorry. Okay. That was a 11 service date of November the 12th, not October 28th. 12 I have it reflected no address, no specialty, 13 doesn't even say he's an expert witness. 14 MR. FUGATE: Well, I can tell you who he is -- 15 THE COURT: Well, says, "Paragraph 3B sets 16 another witness list deadline for additional 17 witnesses to be filed and served 35 days before the 18 pretrial conference; i.e., November 7th." 19 Who is this Dr. Fogarty? 20 MR. FUGATE: Your Honor, he is an accident 21 reconstruction expert, and he was discovered after 22 we took the deposition of Mr. Dandar's accident 23 reconstruction expert. And he in fact has 24 testified -- we did a search and Dr. -- or -- he is, 25 I think, a PhD -- Dr. Fogarty -- or an engineer -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 18 1 that testified in cases involving Mr. Dandar's 2 expert. And we interviewed him, we've given his 3 name, and I think he's somebody that we may call in 4 place of the other accident reconstruction, although 5 we can -- accident reconstructionist, although we 6 can only call one -- 7 THE COURT: At this time I am going to make you 8 do something here. Seems to me -- 9 I'm looking at page 8 of your witness list. 10 MR. FUGATE: Mm-hmm. 11 THE COURT: I take it this Fogarty hasn't been 12 deposed. I see three accident reconstructionists: 13 Jay Ferro, Michael Stonelake, Mark Fabianic. Have 14 any of those been deposed? 15 MR. FUGATE: They're -- they're not -- they're 16 not accident reconstructionists. They're -- 17 they're -- one of them is a police officer. 18 THE COURT: How many -- has any accident 19 reconstruction expert been deposed? 20 MR. FUGATE: Two have. Mr. Dandar's and the 21 person who did the first reconstruction that we 22 provided to him long ago. Both of those have been 23 deposed. 24 THE COURT: Okay. Then I need to know -- are 25 you going to -- you're only going to call one. If Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 19 1 he's already taken the deposition of one, I don't 2 want lawyers listing extra witnesses they have 3 absolutely no intention of calling. Is it your 4 intention at this time to call this fellow? 5 MR. FUGATE: It is. 6 THE COURT: All right. And what is your belief 7 as far as when this witness list was due? 8 MR. FUGATE: Your Honor, I believe it was 9 mailed and faxed, and I think we conceded in the 10 motion that it was a day after the due date, and I 11 think there was a weekend in there. But that we 12 received witness lists and exhibit lists from 13 Mr. Dandar that are untimely. And in this case, we 14 presumed that as long as we were notifying each 15 other and we were -- prior to case management 16 conference, we were fine. 17 MR. DANDAR: That's not true. 18 And this witness list is dated November the 19 12th. 35 days is November the 7th, so it's not a 20 day late; it's a week late. 21 MR. FUGATE: I think -- 22 THE COURT: I think it's late. However, I may 23 allow them to call him. But I do want to hear about 24 this next one that apparently was listed even later 25 than that. This is Dr. Madea or Dr. -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 20 1 MR. DANDAR: Yes. Dr. -- 2 THE COURT: Madea? 3 MR. DANDAR: He's -- 4 MR. FUGATE: Your Honor -- 5 Excuse me, go ahead. 6 MR. DANDAR: He's from Germany and he wasn't 7 even listed on the witness list. He was simply 8 listed in answers to supplemental expert 9 interrogatories. So they never complied with the 10 court order on the witness list. And he is a 11 so-called vitreous expert. 12 THE COURT: Okay. 13 MR. FUGATE: He indeed is a vitreous expert, 14 your Honor, and he was discovered on -- late. He 15 was discovered -- his name was given to us by 16 Dr. Knight, who you met briefly in the courtroom. 17 And Dr. Knight had -- we had sent copies of the -- 18 of your orders. And he had contacted Dr. Madea. 19 And he indicated that he had -- he's the only person 20 that Dr. Knight had come in contact with who was 21 doing any extensive research on vitreous. And to 22 the extent that vitreous -- we don't know exactly 23 yet, 'cause there are going to be motions in limine, 24 but to the extent that that is an issue, he is an 25 expert -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 21 1 THE COURT: Your motions in limine on vitreous, 2 I don't know what in the world they -- it's 3 obviously a pretty crucial part of the plaintiff's 4 case, and I don't know any reason that I can think 5 of why it isn't going to come in. So, I mean, I'm 6 probably not going to hear your motions in limine on 7 that. 8 MR. FUGATE: Well, we're going to file this. 9 THE COURT: Well, you can file them, and I've 10 already told you about that kind of stuff. 11 MR. FUGATE: At any rate, that's what his 12 expertise is. 13 And Mr. Dandar is doing all -- currently doing 14 all of the expert depositions by telephone, so the 15 only hardship that works, if you were to allow him, 16 is that someone from our side has to go and be with 17 him for the deposition or we have to bring him to 18 the U.S. for the deposition. His testimony would be 19 strictly limited to the area of vitreous -- 20 THE COURT: Who is your present expert on 21 vitreous? I mean, I heard a whole slew of them when 22 you had your hearing. 23 MR. DANDAR: They have a Sebag, who's an 24 ophthalmologist MD on vitreous, and I think they 25 have -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 22 1 MR. FUGATE: Sebag is not testifying, your 2 Honor. 3 THE COURT: Is not testifying. 4 MR. FUGATE: He's not testifying. 5 THE COURT: Okay. 6 MR. DANDAR: Oh. 7 THE COURT: Who else did you have on -- seemed 8 like you had an expert here. 9 MR. FUGATE: Well, we had -- we had doctors -- 10 THE COURT: Baden and Wecht. 11 MR. FUGATE: Baden and Wecht. 12 And in this particular -- 13 THE COURT: But they are really your forensic 14 pathologists -- one of them is going to be your 15 forensic pathologist. 16 MR. FUGATE: Yes. 17 THE COURT: You could call the other one as 18 your vitreous expert. 19 MR. FUGATE: But we would, at this juncture, be 20 calling Dr. Madea, with the court's permission, 21 obviously. 22 THE COURT: It seems to me that if you have 23 now, at this late date, well after the pretrial 24 order, listed a witness that's in Germany, I would 25 suspect the reason Mr. Dandar is taking telephone Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 23 1 depositions is because he simply can't be flying all 2 over the place. If you want him, you bring him -- 3 you bring him here, right here to this city, for him 4 to depose in person. If you don't do that and if 5 you don't do that within a reasonable time before 6 trial, like assuming this trial goes on schedule by 7 the 10th of January, then you can't use him. So you 8 want to use him, bring him over here, set him down 9 with Mr. Dandar to take his deposition. 10 MR. DANDAR: And -- 11 THE COURT: Otherwise he's late and I'll hold 12 your feet to the fire. He wasn't -- 13 You know, you can't use the November the 12th. 14 It was obviously late. You have a another expert 15 you have another expert that you've used, been 16 deposed. But if you can bring him here, set him 17 down, let Mr. Dandar depose him, then there won't be 18 any prejudice. 19 MR. DANDAR: And is an interpreter needed? 20 MR. FUGATE: No. 21 Your Honor, if I could, because of scheduling, 22 if you would extend that to Monday, which I believe 23 is the 13th, that gives us a weekend -- an 24 additional weekend to get him here because the first 25 week -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 24 1 THE COURT: All right. The 13th. 2 MR. FUGATE: Thank you. And that's -- 3 MR. DANDAR: And for the record, we stipulated, 4 so I can take these depositions without flying all 5 over the world, that the court reporter is local, 6 I'm local, I'm on a telephone and the court reporter 7 does not need to be with the witness to swear the 8 witness in. 9 THE COURT: All right. But I gather somebody 10 is telling the witness over the telephone that they 11 are sworn, what that means. 12 MR. DANDAR: Yes. 13 THE COURT: And the court reporter is swearing 14 the witness? 15 MR. DANDAR: Yes. 16 (A discussion was held off the record.) 17 MR. FUGATE: Actually, Judge Beach has been 18 swearing the witnesses -- 19 THE COURT: Okay. 20 MR. FUGATE: As I recall. 21 MR. DANDAR: But he's not available after this 22 Friday, so we're going to be doing them without 23 Judge Beach. 24 THE COURT: Okay. 25 MR. DANDAR: But the court reporter here is the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 25 1 one that would normally swear in the witness, but 2 the rules require that the court reporter be in 3 front of the witness physically, but we stipulated 4 that's not necessary. 5 THE COURT: Okay. Is that true, Mr. Fugate, 6 you've stipulated that's not necessary? 7 MR. FUGATE: Yeah. As a matter of fact, as I 8 said, Judge Beach has done it, but to accommodate 9 getting this done and -- 10 THE COURT: Is the answer yes? 11 MR. FUGATE: The answer's yes. 12 THE COURT: All right. Thank you. 13 All right. So that takes care of the motion to 14 strike. 15 As far as the striking of the entire witness 16 list, that's denied. And you've had loads of those 17 witnesses. As to those three, I think you've dealt 18 with them, okay? 19 MR. DANDAR: Yes. 20 THE COURT: All right. As to your late 21 witness, I've seen no motion to strike, I don't 22 expect a motion to strike, but if it were filed, 23 that'll be denied too. We've both got one late 24 witness that means, all right? 25 Okay. Now, it's five till 10. There's no Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 26 1 point in starting. If you will now, we'll just 2 stop, you go down to Judge -- 3 MR. DANDAR: Judge Penick. 4 THE COURT: By the way, there's a transcript 5 I'd like to see before we do this RentClub motion, 6 if anybody happens to have it here; and if not, if 7 somebody could make it available. 8 It is my belief that one of the issues that I'm 9 going to be discussing with you all is I believe 10 that the church is going to have to make an 11 admission here that RTC and Flag are interwoven 12 before you can possibly, possibly ask me to exclude 13 somebody that was an employee of a corporation that 14 from the very outset of this case you all have 15 made -- and I say you all -- the Church of 16 Scientology, Flag Services Organization has 17 maintained from the very outset that RTC was a 18 separate corporation; should be treated like a 19 separate corporation. They've not only done that in 20 this case but in every other case, in every other 21 thing I have read. That will permeate every single 22 hearing that we've had, I suspect every single 23 hearing that Judge Moody has had. 24 I believe, although I'm not positive about 25 this, because I didn't have this transcript, that Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 27 1 one of the things that I had in front of me was a 2 motion to consolidate wherein I was told that the 3 reason this case up in Clearwater shouldn't be 4 consolidated -- which by the way, if it had have 5 been, it would have been a lot easier for Judge 6 Baird and I -- was because there were separate 7 lawyers -- well, of course there are not separate 8 lawyers anymore -- and because RTC was absolutely a 9 separate corporation and was in no way a different 10 defendant altogether, in no way related to Flag. 11 And I believe that transcript will say that. I 12 don't know because I haven't looked at it. 13 MR. DANDAR: Not only that transcript, but just 14 this week, Monday, they argued -- RTC argued the 15 same thing before Judge Greer on our motion for 16 stay, and they argued that it's a separate 17 corporation. 18 THE COURT: Well, I have no doubt but they're 19 going to have to change their tune, I believe. In 20 fact I've been waiting for an affidavit from Flag. 21 I believe that you've got huge problems here. 22 I don't think you can look at what Mr. -- I mean, 23 you say everything that Mr. Prince says is a lie, 24 it's not true, and in your motion you say, by the 25 way, none of this is accurate, none of this is true, Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 28 1 but since he said it, why, we want the lawyer 2 excluded. 3 I'm looking for an affidavit, and when the 4 affidavit comes in, if it's sufficient and can't be 5 agreed to, then I'm looking to have an evidentiary 6 hearing, as I believe the Florida cases provide. 7 You better talk about this during this little break 8 because, number one, I'm going to need something 9 that says RTC and Flag are in fact interrelated and 10 all this -- all this to-do that's been going on 11 throughout in front of all these judges is not 12 accurate. If you're not willing to say that, then 13 Jesse Prince, at best, during this time in question 14 was an employee of RTC, not Flag, the defendant in 15 this case. 16 Number two, Jesse Prince was either a 17 high-level management officer that was privy to 18 confidential information or he wasn't. If you're 19 not willing to swear under oath that he was, this 20 motion's over. You cannot have it both ways. 21 I mean, the burden is on you, it's as clear as 22 a bell it's on you, to come forward and prove, 23 pursuant to Florida law, that, A, he had 24 confidential information regarding this case and 25 either -- either -- and it's questionable what it Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 29 1 is -- the circumstances were such that he probably 2 revealed it or that he did reveal it, one or the 3 other. I've never heard the Church of Scientology, 4 Flag, which is the corporation in front of me, admit 5 that Jesse Prince had any information. You've 6 called him the janitor at best; somebody that in 7 1980 something or another lost all power. 8 So you know, if we're going to take this break, 9 those are the first questions I was going to ask 10 you, so you might as well take this break and this 11 opportunity -- I mean, that's my reading of the 12 Florida cases. And my reading is the burden's on 13 you. 14 As I said, I've been waiting for this 15 affidavit, and I expect something to be forthcoming, 16 either testimony -- and not from Mr. Prince, who you 17 apparently don't believe anything he says and have 18 contested everything he says, but from one of your 19 folks, telling me about RTC and how it is related to 20 Flag, and what confidential information Jesse Prince 21 had about the Lisa McPherson case or a case that is 22 so similar that the leaking of confidential 23 information, the giving of confidential information 24 prejudiced you. 25 And I want to explain something to you and I Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 30 1 want you to understand it. Once you do that, then 2 as far as relevance and as far as similar, don't -- 3 I don't want to hear an argument. If you lose this 4 motion, when we get to trial, oh, it's not relevant. 5 It says it's got to be material to this case. And 6 so once you state that it is material to this case, 7 you're stuck with it. We're not going to have this 8 one day we hear one thing and one day we hear 9 another. 10 So be prepared to respond to those things or be 11 prepared to withdraw to your motion when we come 12 back. 13 All right. We'll be in recess until Mr. Lirot 14 is done. 15 MR. FUGATE: Judge, remind you to take the 16 extra order. 17 THE COURT: Thanks. See, I would have 18 forgotten it. 19 (A recess was taken from 10:01 to 10:49 a.m.) 20 THE COURT: Oh, I forgot those orders. They're 21 stamped, they're on Sue's desk. I'll get them for 22 you later. 23 Okay. Oh, this is the religious -- the 24 introspection rundown? 25 MR. LIROT: Yes. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 31 1 MR. DANDAR: I filed that. 2 THE COURT: Okay. And I believe you all had so 3 many days to do that too? 4 MR. LIEBERMAN: Yes. Until Thursday, I think. 5 THE COURT: Okay. So I'll just wait until I 6 get both of those in. 7 There was something else. The death 8 certificate issue. I don't know -- were you all 9 going to brief that or was it -- were we just all 10 aware that was an issue and we're going to address 11 it sometime? 12 MR. LIEBERMAN: I think the latter was the way 13 it was last -- 14 THE COURT: Okay. All right. Then I'm not 15 expecting anything on that. The only thing I'm 16 expecting is something on this. 17 MR. LIEBERMAN: Yes. 18 THE COURT: Is that right? 19 Okay. All right. I did say about a half hour 20 a side, and let's go ahead and go with that. And 21 this is the plaintiff's motion -- I'm sorry -- this 22 is the defendant's motion, and I will hear you. 23 MR. HERTZBERG: Thank you, your Honor. Your 24 honor, during the break we -- I think we located 25 the -- the reference in the transcript of the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 32 1 consolidation motion -- 2 THE COURT: Yes. 3 MR. HERTZBERG: -- that you -- the court made a 4 reference to. 5 Just so the record is clear, if we've located 6 the right one, that motion to consolidate was a 7 motion relating to the FSO case that was pending 8 before Judge Baird. It was a motion that Mr. Dandar 9 made to consolidate that case with this case. 10 Mr. Pope appeared before this court. It did 11 not involve RTC. Mr. Pope argued that Mr. Dandar 12 was forum shopping and that the case before Judge 13 Baird had advanced on completely different issues 14 into a posture where summary judgment had been 15 granted, and for all those reasons, consolidation 16 should not be granted. And your Honor denied 17 Mr. Dandar's motion to consolidate. 18 But again, that had nothing to do with FSO -- 19 with RTC. 20 Having said that -- 21 THE COURT: He never mentioned that RTC and FSO 22 were separate defendants? 23 MR. HERTZBERG: I don't believe in the excerpts 24 that I saw. I -- I didn't see that. 25 THE COURT: Well, somebody provide me with a Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 33 1 transcript. 2 MR. HERTZBERG: Leaving that aside, your Honor, 3 and responding to the concern that you've 4 identified, we -- we don't think it's a concern. 5 THE COURT: Okay. 6 MR. HERTZBERG: And we will -- we will address 7 it as -- we will get an affidavit from 8 Ms. Yingling -- Monique Yingling, who as your Honor 9 knows is overseas, is the attorney who has dealt 10 with these matters to the extent that they resulted 11 in findings by the Internal Revenue Service of tax 12 exemption in 1993 for church entities and 13 recognition expressly of the separate nature, 14 corporately and ecclesiastically, of RTC and FSO. 15 But that's not the issue here. 16 THE COURT: So -- 17 MR. HERTZBERG: That's not the issue. The 18 issue -- 19 THE COURT: But I -- excuse me, if I interrupt 20 you. I'll try not to take that off your time. But 21 I am correct that that was a big issue with the IRS 22 and it was the church's position that these were 23 totally separate entities. 24 MR. HERTZBERG: And it remains that, your 25 Honor. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 34 1 THE COURT: It remains that. 2 MR. HERTZBERG: It remains that. But that, in 3 our view, is no way a flaw in the arguments that we 4 advance in this motion. 5 THE COURT: But so that I know when I enter my 6 order and I make some finding, it is agreed by you 7 that RTC and FSO are entirely separate corporations. 8 MR. HERTZBERG: Well, I -- they are corporately 9 separate. 10 THE COURT: All right. 11 MR. HERTZBERG: I would like to defer to 12 Ms. Yingling to give the court the ultimate word on 13 that. I am merely a humble attorney for FSO, and I 14 cannot represent to the court what she can represent 15 to the court about RTC and, in fact, about all the 16 Scientology entities and how they have been treated 17 by the IRS and otherwise. 18 But what -- the point I want to make is that 19 the issue here is whether Mr. Prince was privy to 20 confidences and proprietary information, and whether 21 he was hired, whether he sold himself and accepted 22 money to -- to make himself accessible to reveal and 23 disclose those confidences to the plaintiff. And we 24 rely on -- 25 THE COURT: And I don't disagree with you. I Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 35 1 think that is indeed an issue. But I think what 2 you're going to have to tell me and what you're 3 going to have to agree to is what are the 4 confidences that you agree that Mr. Prince was 5 indeed privy to. 6 MR. HERTZBERG: Your Honor, I'm going to get to 7 that. 8 THE COURT: Okay. 9 MR. HERTZBERG: I'm going to get to that in the 10 argument. 11 THE COURT: Okay. Good. 12 MR. HERTZBERG: I want -- I want to try to 13 address at the outset the -- the points that you 14 raised before the break. So you asked what -- what 15 our feeling is about Mr. Prince. And I want the 16 court to be totally clear about the position we've 17 taken in this litigation and we've taken with 18 respect to the motion. It is not inconsistent in 19 any way, and in fact it is totally consistent with 20 the way that Judge Kovakevitch not only suggested 21 but in fact decided the RentClub motion. 22 And our view is that, yes, Mr. Prince, for a 23 discrete period of time, had a -- an executive 24 position that was high enough in rank so that he had 25 access to -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 36 1 THE COURT: And what is that period of time? 2 MR. HERTZBERG: 1983 to 1987. I believe in his 3 affidavit he describes it as March of 1983 to the 4 spring of 1987. And I -- for this moment I'm not 5 disputing that. 6 THE COURT: Okay. 7 MR. HERTZBERG: I believe that -- that fairly 8 accurately represents the parameters. 9 THE COURT: And that position was as a -- 10 whatever his position was, in RTC. 11 MR. HERTZBERG: That's correct. 12 THE COURT: Okay. 13 MR. HERTZBERG: That's correct, your Honor. 14 The key here is that he had this access, which 15 he has openly bragged about and which Mr. Dandar -- 16 and this is -- this is actually pivotal in terms of 17 our -- our argument and our hopes for success on 18 this motion. It is one of the factors and in fact 19 it is a principal factor that Mr. Dandar has 20 testified impelled his hiring of Mr. Prince at a 21 time when Mr. Dandar already had other former 22 Scientologists or apostate Scientologists on board 23 as expert witnesses, such as Mr. Young who 24 Mr. Dandar identified in his testimony. 25 And the critical testimony on this appears in Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 37 1 Exhibit B to our -- to our motion, and in 2 particular, pages 91 through 93, where Mr. Dandar 3 speaks to -- or actually 90 to 93, which are -- the 4 pages appended to our Exhibit B, where Mr. Dandar -- 5 THE COURT: Are you saying B as in boy? 6 MR. HERTZBERG: Yes. B as in boy. 7 THE COURT: Okay. 8 MR. HERTZBERG: And on page 90, around lines 10 9 through 12, your Honor -- your Honor may see -- I 10 also -- just so I don't forget, your Honor, I want 11 to interrupt myself to hand up to the court a notice 12 of supplemental filing of record which we serve this 13 morning on Mr. Dandar -- 14 THE COURT: All right. 15 MR. HERTZBERG: -- when he came in. 16 Thank you. 17 Now, if you'll look at pages -- page 90, we see 18 at lines 10 through 12 Mr. Dandar talking about 19 Jesse Prince arriving at the scene, and he tells me 20 his credentials and his experience in the Church of 21 Scientology. And we know in context of the other 22 testimony in this case that this is -- Mr. Dandar 23 meets him at that multiday conference in Key West, 24 Florida. 25 Your Honor is familiar, from the testimony in Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 38 1 the omnibus hearing, lawyers who had made their 2 living litigating what we would call 3 anti-Scientology cases, lawyers such as Ford Greene, 4 Dan Leipold from California, conferred with 5 Mr. Dandar. And Mr. Dandar's admitted they spent 6 several days together. And Mr. Prince was there. 7 And Mr. Dandar met with Mr. Prince and Mr. Dandar 8 spoke with Mr. Prince and got acquainted with 9 Mr. Prince and then flew back, according to 10 Mr. Dandar, to Tampa with Mr. Prince where they 11 continued what Mr. Dandar calls talking. And they 12 were talking quite a bit. 13 And in the aftermath of that we now have his 14 testimony, looking at the top of page 92, that 15 "That's when I made a decision to contact my client, 16 Dell Liebreich." That's important, your Honor. 17 The -- the personal representative is -- is 18 contacted. And she's informed. And I said, "Look, 19 I have Jesse Prince here and I told him -- I told 20 him --" I think it means her -- "all about -- I told 21 her all about Jesse Prince." 22 And if you skip down on page 92 to lines 13 23 through 16, we have him touting to his client that 24 this person was in charge of litigation previously, 25 years go, for the Church of Scientology. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 39 1 THE COURT: Is that true? Are you representing 2 to me that's true? 3 MR. HERTZBERG: I don't know -- as an 4 episode -- I don't know if he was in charge, but we 5 are -- we are stating to your Honor -- I'm going to 6 state two things. First of all, as an overarching 7 principle, under RentClub, we believe you have to 8 accept this testimony as true. 9 THE COURT: All right. 10 MR. HERTZBERG: But there's a twist here 11 because it is Mr. Dandar's testimony. Actually, in 12 the context of Mr. Dandar's testimony, it almost 13 doesn't matter whether it's true or not because he 14 thought that. This is him telling his client what 15 he believed based on what Mr. Prince told him. 16 So what you have here, your Honor, is a stark 17 concession on Mr. Dandar's part, or acknowledgement 18 in a candid moment here, in his testimony under 19 oath, of a motivation, a principle and we would say 20 overriding consideration for his hiring of Mr. 21 Prince, as you'll see in a moment. 22 And to continue to the end of that line, he 23 went -- he, meaning Mr. Prince, went around the 24 world hiring law firms; he, Mr. Prince, went around 25 telling them how to conduct their litigation. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 40 1 So this is what Mr. Dandar believes. Whether 2 Mr. Prince was lying to him or not or puffing, we 3 believe -- we are conceding to your Honor that 4 Mr. Prince, in his position with RTC, had access to 5 attorney-client information. 6 THE COURT: And I'm going to tell you, that if 7 you're going to prevail in this, you are going to 8 have to file and tell me what that is. 9 MR. HERTZBERG: We -- okay. Your Honor, may I 10 address that? 11 THE COURT: It is relevant and material to this 12 case. 13 MR. HERTZBERG: Well, your Honor, when get 14 further in my argument, I'm going to try to persuade 15 you. Although you seem to have a very fixed view 16 of -- of -- of what you -- of what you think or what 17 you do want at the moment. But I want to change 18 your mind about that because I want to speak to you 19 a little bit later on about the law and the 20 presumption. 21 THE COURT: Counsel, let me tell you something. 22 You address this as if perhaps when you file these 23 things I don't read them. Let me assure you -- 24 MR. HERTZBERG: I know you do. 25 THE COURT: I have read your memorandum. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 41 1 MR. HERTZBERG: Right. 2 THE COURT: Let me assure you that I have read 3 RentClub three or four times. Let me assure you 4 that I have also read what you didn't file and what 5 you didn't allude to and what oftentimes the church 6 doesn't file, which is contrary Florida law, the law 7 that this court is bound by, which is district 8 courts' opinions, particularly the Second District 9 Court, and if there's nothing from the Second 10 District, other district courts in Florida, I am 11 absolutely bound by those decisions. 12 Now, there are decisions in the state of 13 Florida that discuss RentClub and distinguish 14 RentClub. All one need do is go to Westlaw and go 15 down and you'll see reviews to follow. Disagreed 16 with. And these are Florida cases. And you know 17 what, there's not a one of them cited in your brief 18 except one where you're suggesting that the Florida 19 Supreme Court did not deal with the issue in 20 RentClub that you want dealt with. 21 And I will grant you that that is true, that 22 what that Florida Supreme Court case dealt with is 23 whether or not a lawyer has a right to contact, ex 24 parte, an employee. And the Supreme Court said that 25 RentClub in essence is wrong. And that isn't really Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 42 1 the issue here, and I agree with you. 2 But all I'm suggesting to you is I didn't get 3 any of this Florida law from your brief. I did get 4 some from Mr. Dandar. And of course, then as I 5 usually have to do when I have these major motions 6 from you or from Mr. Dandar, I then have got to 7 define the law, go research the issue myself so that 8 I have it all, so that I've read it all and so that 9 I can figure out pretty much what I think it is. 10 Now, that's sort of like an appellate judge. 11 And so, you know, here we are like you're making an 12 appellate argument. So you're right to try to 13 persuade me on things, but you might -- you must not 14 think that I'm not prepared for this argument and 15 that I haven't read all these cases that -- which 16 you cited, which is RentClub and that one other case 17 from who knows where, California or somewhere, 18 that -- some -- 19 MR. HERTZBERG: Right. 20 THE COURT: -- opinion that you can't even 21 find, and of course no copy was provided to me so I 22 haven't read that case. 23 MR. HERTZBERG: Your Honor, we will remedy 24 that. 25 THE COURT: Good. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 43 1 MR. HERTZBERG: I'm not suggesting for a 2 moment, your Honor, either by implication or in any 3 other way, that your Honor isn't totally prepared 4 and knows all the law -- 5 THE COURT: Well, you have to assume -- 6 MR. HERTZBERG: When I -- 7 THE COURT: -- that when I read this law -- 8 MR. HERTZBERG: We do. 9 THE COURT: -- I get some ideas just like 10 appellate judges do. 11 MR. HERTZBERG: We do. 12 THE COURT: And when I get some ideas, what I 13 really think it's important for me to do is to share 14 where I'm coming from with you, so that you can, as 15 you would want to do on appeal, address those things 16 that I have concern about. 17 I've got two ways I can do this argument for 18 half an hour. You can either address my concerns or 19 you can just go on and talk about whatever it is you 20 want to talk about. When you're done, I'm going to 21 rule. 22 MR. HERTZBERG: I will -- I will address -- I 23 thought I was addressing your concerns. 24 THE COURT: Well, you keep saying, When I get 25 later into my argument I'm going to. Gee, I was Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 44 1 taught in moot court when a judge asks a question 2 you jump to that and answer it. 3 MR. HERTZBERG: Your Honor, I thought I had 4 addressed the first of the two, and I am addressing 5 right now the matter of Jesse Prince and what we 6 think -- what we think this court -- how -- how this 7 court should view Jesse Prince in his role, 8 according to the testimony of Mr. Dandar, the 9 testimony of Mr. Prince and some variations. I'm 10 dealing with that now as best I can. 11 THE COURT: And I'm going to make myself clear 12 one more time and then I'm going to let you finish 13 your argument uninterrupted. 14 I want to know what it is -- it should have 15 been before me in an affidavit by now -- what it is 16 the church is going to tell me that Jesse Prince -- 17 what confidential information did Jesse Prince have 18 that is relevant to this case or is similar in 19 another case and of the variety that is so similar 20 that it has some materiality in this case. What is 21 it that you all are telling me he has. 22 MR. HERTZBERG: I'm going to come -- I'm coming 23 to that, your Honor. 24 THE COURT: All right. 25 MR. HERTZBERG: And let me say one thing. The Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 45 1 case that we believe is a pivotal case here, which 2 is a Supreme Court of Florida case, which was 3 decided three years after the Second DCA case which 4 your Honor is alluding to, is very important. 5 That's the State Farm Mutual Automobile Insurance 6 Company versus K.A.W., K, period; A, period; W, 7 period, 575 So.2d 630. And it was decided in 1991. 8 It is a case that we rely on because of the 9 irrebuttable -- irrefutable presumption and because 10 it says, in unequivocal terms, that the appearance 11 of impropriety standard is alive and well and very 12 much a part of Florida law and the way attorneys 13 must conduct themselves. 14 And that case, incidentally, was cited not only 15 in RentClub by Judge Kovakevitch, but it was also 16 cited in the Carnival case which the plaintiff 17 relies upon. And that is an important case, and it 18 was decided three years after that Esquire case, the 19 Second DCA case, which I will come back to. 20 What I want to stress to your Honor, when I 21 talk about Jesse Prince, is while we admit that he 22 had an executive position that -- that allowed him 23 to be privy to attorney-client confidences along the 24 lines that he represented to Mr. Dandar that he had 25 and which Mr. Dandar believed and which Mr. Dandar Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 46 1 used as a motivation to hire him, we do not for a 2 moment concede that Mr. Prince -- and we never have, 3 and this is a distinction in this case -- we don't 4 for a moment concede that Mr. Prince was an expert 5 or had any ability to testify in this litigation or 6 any other litigation about Scientology practices, to 7 interpret the religion of Scientology or any other 8 aspects of the ecclesiastic nature of Scientology. 9 That is the position that we maintain. 10 And yes, he was a janitor afterwards, after he 11 had dealings with the attorneys and after he -- as 12 he testified -- and the excerpts are in the 13 supplement that I've given your Honor this 14 morning -- after he testified that he had strategy 15 discussions with myself, with Mr. Lieberman -- two 16 attorneys who are involved in the defense of this 17 case on behalf of the church -- with Mr. John 18 Peterson, who was the in-house counsel for the 19 Church of Scientol- -- for various Church of 20 Scientology entities, for -- with Mr. Earle Cooley, 21 who was national trial counsel and the major outside 22 counsel for the church, and several other attorneys 23 who he identifies by name. 24 And the questions were, "Mr. Prince, did you 25 discuss strategy with this attorney," and he said, Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 47 1 "Yes," and, "Did you discuss strategy with that 2 attorney," and he said, "Yes." Those excerpts, your 3 Honor, are on -- in the very first of the -- tab 4 number 1 there. 5 THE COURT: Okay. 6 MR. HERTZBERG: Pages 680 through 683. 7 That's what he in effect is an expert on. Not 8 the religion. And he was defrocked, as your Honor 9 knows, because he committed gross violations against 10 the precepts of Scientology. 11 So there's nothing inconsistent about our 12 position with respect to Mr. Prince. Moreover, on 13 the subject of his knowledge and access to 14 confidences and proprietary information, under the 15 analysis of Judge Kovakevitch in RentClub, it is 16 very clear that she accepted the representations of 17 the former employee as a given for purposes of 18 deciding the motion. 19 And I -- it's very clearly set forth at page 20 655 of Judge Kovakevitch's -- 21 THE COURT: I realize that, and I guess that's 22 what I'm asking you. Is that what you are asking me 23 to do? Is that -- 24 MR. HERTZBERG: Absolutely. 25 THE COURT: -- what you are going to rely on? Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 48 1 MR. HERTZBERG: I'm sorry? 2 THE COURT: Is that what you are going to rely 3 on? 4 MR. HERTZBERG: Yes. 5 THE COURT: You're not going to present an 6 affidavit stating what these conflicts are, stating 7 what this confidential information is; you're going 8 to rely on the statements and -- under oath and 9 otherwise of Mr. Prince as to what they are. 10 MR. HERTZBERG: We are not -- I don't 11 anticipate -- first of all, we are relying on his 12 statements under oath for purposes of this motion, 13 and believe your court -- this court has to accept 14 them the way Judge Kovakevitch did for purposes of 15 deciding the motion. 16 THE COURT: Okay. 17 MR. HERTZBERG: Absolutely. And we believe -- 18 THE COURT: And that is your position. 19 MR. HERTZBERG: Yes. And we believe those 20 representations, in combination with Mr. Dandar's 21 testimony -- and I didn't get through all of it 22 because we ended up in -- you and I in colloquy -- 23 but if you go on, on pages 92 and 93, you'll see 24 that your Honor then clarified the record and asked, 25 "Is this what you're conveying -- Mr. Dandar, is Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 49 1 this what you were conveying to your client?" 2 And -- and he said -- 3 THE COURT: Tell me where you are again 'cause 4 I've lost you. 5 MR. HERTZBERG: I'm sorry. 6 THE COURT: We're back to -- 7 MR. HERTZBERG: Back to Exhibit B, your Honor. 8 THE COURT: Exhibit B. Thank you. 9 MR. HERTZBERG: Back to Exhibit B. After 10 Mr. Dandar testifies on page 92, in the middle of 11 the page, this person was in charge of litigation, 12 he went around hiring -- around the world hiring law 13 firms, he went around telling them how to conduct 14 their litigation, the court then says, in response 15 to Mr. Weinberg's objection -- court clarifies it -- 16 and on the next page as well, page 93, where the 17 court says, "I'm assuming that he's saying Jesse 18 Prince told him this." At this point in time he -- 19 he, meaning Mr. Dandar, called his client, and he 20 was reviewing what he had learned to his client, and 21 the witness, which is Mr. Dandar, says, "Right." 22 That's on page 10. 23 So this is what Mr. Dandar told Ms. Liebreich, 24 and he told her that when he was giving her the 25 reason for hiring Mr. Prince. And this is the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 50 1 prelude, of course, to payments of huge sums of 2 money by Mr. Dandar directly to Prince -- 3 Mr. Prince, in excess of $60,000, in the context of 4 payments afterwards made by Mr. Dandar's at that 5 time collaborator, Mr. Minton, both before and after 6 through the LMT and through all the other means that 7 your Honor has become acquainted with during the 8 omnibus motion hearing; we're talking about a total 9 of over $300,000. 10 And the reason -- and then Mr. -- Mr. Dandar -- 11 this is important too -- Mr. Dandar felt clearly 12 that Mr. Prince occupied a special position. And we 13 have excerpted testimony for you there where he 14 says, "Vaughn Young -- I had Vaughn Young, but he 15 didn't know what Mr. Prince knew." That's in 16 Exhibit C to the motion, your Honor, where he says, 17 "But Jesse Prince was --" as far as being in an 18 executive position "-- was far more advanced in the 19 position of executive of Scientology." And he 20 compares him -- and he uses the term "inside 21 knowledge." "He was -- he also was the only one 22 that had inside knowledge," Mr. Dandar's term, "as 23 to the executives of Scientology," and he goes on to 24 describe Mr. Miscavige and to name Mr. Miscavige and 25 others who then were promptly sued in contravention Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 51 1 of the agreement that had been signed by Mr. Dandar 2 two years prior and the agreement which now has been 3 found by two courts, one through a trial and verdict 4 and one the local one in Florida through summary 5 judgment -- through summary judgment, to have been 6 breached. 7 And what we have here, your Honor, is a picture 8 of Mr. Dandar hiring him for this reason, among 9 others. And you know, on the appeal of the RentClub 10 case, the lawyers who were -- had been disqualified 11 appealed, and they said well, he was the employee we 12 brought on board and we paid and we bought his 13 testimony, was the only one who knew certain things. 14 Well, this is reminiscent of that. But that's not 15 an excuse, the 11th Circuit said. Mr. Prince could 16 have been the last man on earth who knows certain 17 things that Mr. Dandar may have valued in this case, 18 even apart from the confidences, and you cannot have 19 this kind of situation where you buy and purchase 20 access to a former employee who had communications 21 and access to discuss strategy with a pantheon of 22 lawyers, including two lawyers who are involved in 23 this very case now defending FSO. 24 Now -- 25 THE COURT: So you're not -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 52 1 MR. HERTZBERG: -- what is the relationship. 2 THE COURT: You're not going to tell me what it 3 is the church's position is as to what strategy was 4 discussed between Mr. Prince and -- 5 MR. HERTZBERG: I'm going to answer -- 6 THE COURT: -- those lawyers -- 7 MR. HERTZBERG: Okay. 8 THE COURT: -- regarding something that is 9 important to this case. 10 MR. HERTZBERG: I'm going to answer that now. 11 At the moment, I'm not, your Honor. I'm going 12 to -- we're going to have to -- I will confer with 13 my co-counsel. I am not lead counsel in this case, 14 as your Honor knows. I'm going to have to speak 15 with the client. But I am telling you why I don't 16 think we have to at all, and I'm not going to -- I'm 17 not going to tell your Honor that the affidavit or 18 affidavits we may submit after this morning's 19 hearing -- 20 THE COURT: I have news for you. I'm prepared 21 to rule. We're going -- I'm going to start ruling 22 on these cases. 23 You have no affidavit here today. This is your 24 presentation. You have no affidavit and there is 25 nothing that you're prepared to state to me or put a Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 53 1 witness on this stand under oath to tell me what 2 confidential information it is -- 3 MR. HERTZBERG: I'm going to tell you why I 4 don't think -- 5 THE COURT: -- he's privy to. 6 MR. HERTZBERG: -- under the law, under the 7 State Farm case, I don't believe we have to. 8 And the State Farm case -- 9 THE COURT: Your answer then, is you're not 10 going to do that, is that correct? 11 MR. HERTZBERG: We're not going to do it today. 12 THE COURT: Okay. Go ahead. 13 MR. HERTZBERG: Under the State Farm case, your 14 Honor, the appearance of impropriety was -- was a 15 standard that was -- and Judge Kovakevitch used the 16 State Farm case appearance of impropriety standard 17 in deciding the RentClub case. 18 And the Supreme Court of Florida, which is the 19 authority we're relying on here, stressed two 20 reasons why the appearance of impropriety and the 21 concomitant, irrefutable presumption that arose when 22 there was an appearance of impropriety, should be 23 applied to these situations. And one of them was 24 because it would be very difficult to -- to show 25 that a specific confidence was violated. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 54 1 And the second reason, and I think it's a very, 2 very important one, and it guided us here in -- 3 today, aside from the short -- short notice in the 4 schedule -- is the court -- the Supreme Court of 5 Florida -- 6 THE COURT: Let's not kid ourselves. We had it 7 scheduled for next Monday. Actually, we had it 8 scheduled for last week, did we not? 9 MR. HERTZBERG: Yes, your Honor. 10 THE COURT: We had it scheduled for at the end 11 of the pretrial conference. 12 MR. HERTZBERG: Yes. 13 THE COURT: So you were supposed to be ready 14 before today. 15 MR. HERTZBERG: Right. 16 THE COURT: Fully ready. So this is no short 17 notice. I'm not going to hear that. 18 MR. HERTZBERG: Okay. Your Honor, I -- 19 THE COURT: Right? 20 MR. HERTZBERG: Yes. Yes, your Honor. 21 THE COURT: All right. Move on. 22 MR. HERTZBERG: Your Honor, the -- the 23 principal reason -- rationale behind the ruling of 24 the Supreme Court of Florida in the State Farm case 25 had to do with not having to disclose your Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 55 1 confidences in the course of vindicating your 2 entitlement to the disqualification. They thought 3 that that would be an exercise in futility. 4 And that's what we're relying on. If we come 5 in to court, by affidavit, by testimony or 6 otherwise, and we say, well, there's this and 7 there's that, if -- the cat is out of the bag. 8 What -- what I think is important is that Mr. Dandar 9 clearly thought that Mr. Prince could convey that 10 kind of information to him and to provide it. 11 THE COURT: I'm -- 12 MR. HERTZBERG: And I want to -- 13 THE COURT: I'm -- 14 MR. HERTZBERG: -- and I want to talk 15 generically about it. 16 THE COURT: Excuse me, Counsel, lord have 17 mercy, please, when a judge starts to talk, that 18 really is time for a lawyer to stop. 19 MR. HERTZBERG: Yes. 20 THE COURT: At least in my courtroom it is. 21 Perhaps other judges allow you to continue to talk. 22 I do not. 23 Now, I might tend to agree with you were this a 24 situation where you are coming in and you are 25 stating to me, without my knowing who -- much -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 56 1 very much about Jesse Prince except that he worked 2 for Flag, I would assume, the right corporation who 3 is the defendant in this particular case, or RTC, 4 if -- if in fact they're so interrelated, which has 5 always been the plaintiff's position, had been very 6 contrary to the defendant's position throughout this 7 and every other litigation I'm aware of. 8 I would understand that if you said, "This guy 9 has got confidential information. We don't feel 10 like we should have to disclose it because by virtue 11 of the very fact that we have to disclose it this is 12 something we shouldn't have to do." That's not the 13 case here. You have challenged Jesse Prince -- 14 When I say you, please understand I'm talking 15 about the defendants in this case. 16 MR. HERTZBERG: That's right. 17 THE COURT: The counterplaintiffs have 18 challenged Jesse Prince at every turn. You have 19 challenged his position as an expert; you have 20 challenged his veracity at every turn. You have 21 said that he is not to be believed; that he is so 22 biased and so tainted that he should be excluded as 23 a witness. I have said myself he's so biased if 24 were under the federal system I'd throw him out as a 25 witness. Can't do that in the state court. I've Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 57 1 talked about bias. 2 I mean, this has been your position all along. 3 And then I go to your motion, where I'm looking for, 4 in your motion, having read these cases, I'm looking 5 for your conflict, what it is -- where you -- where 6 you admit that there is a conflict; that Jesse 7 Prince is a high-ranking official that has 8 information, valuable information, attorney-client 9 information, work product information, and you say 10 it's true, and he's gaining an unfair advantage for 11 it, whether you have to disclose it or not. 12 And I don't see that. What I see is something 13 quite to the contrary. What I see is the only place 14 where this is mentioned, the church by this motion 15 does not concede the veracity or accuracy of the 16 various claims made by Mr. Prince. 17 In RentClub the trial court characterized the 18 assertions made by former employees regarding his 19 credentials as, quote, claims, end quote, and 20 accepted them as such for purposes of rendering her 21 ruling. And so that's what I see, and that's why 22 I'm trying to give you every opportunity to back off 23 of that position or stick with it. And I think what 24 you're telling me here in this oral argument is 25 you're going to stick with that, that's what you Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 58 1 believe you can do, that's what Judge Kovakevitch 2 did and that's what you're doing. 3 MR. HERTZBERG: I am, except there's a -- 4 there's a refinement. We have said explicitly to 5 your Honor this morning, or I have, that we concede 6 that Mr. Prince had access to -- 7 THE COURT: He was a high-ranking official. 8 MR. HERTZBERG: To attorney-client -- that he 9 was of sufficient rank that he had access to 10 attorney-client information and proprietary 11 information. 12 THE COURT: That pertains to this case. 13 MR. HERTZBERG: Yes. 14 THE COURT: Okay. 15 MR. HERTZBERG: And that -- and that would be 16 an advantage to the plaintiff in this case, your 17 Honor. 18 THE COURT: Okay. 19 MR. HERTZBERG: And that is because -- 20 THE COURT: And he left in '87 and Lisa 21 McPherson died in -- 22 MR. HERTZBERG: And I -- 23 THE COURT: -- '95. 24 MR. HERTZBERG: That's right. 25 THE COURT: And you're still alleging that Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 59 1 whatever information he got from '83 to '87 is 2 somehow or another confidential as to the Lisa 3 McPherson case, when all you've ever told me is that 4 RTC deals with trademark. 5 MR. HERTZBERG: No. I haven't, your Honor. 6 THE COURT: Well, maybe you haven't, but 7 you're -- 8 MR. HERTZBERG: Well -- 9 THE COURT: -- one of the many lawyers -- the 10 many, many, many lawyers that I deal with, you're 11 not here all the time. Frankly, when the church 12 says it through one of the lawyers, it's as if you 13 say it. 14 RTC deals with trademarks, doesn't it? 15 MR. HERTZBERG: It does, but that's far from -- 16 that's far from the exclusive focus of RTC. RTC in 17 the largest sense -- and I don't want to usurp 18 Ms. Yingling's role here, because she is the one to 19 properly address this. 20 THE COURT: This is your day for this motion. 21 I'm not even telling you that I'm going to accept an 22 affidavit from Ms. Yingling. You're here today to 23 do this motion. If I'm prepared to rule at the 24 conclusion of this case, we're not going to have an 25 affidavit from Ms. Yingling. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 60 1 MR. HERTZBERG: Right. 2 THE COURT: I gave you an opportunity during 3 the break to give an affidavit or put somebody on 4 the witness stand or something. You've elected not 5 to and you're asking me, I guess, to wait for 6 Ms. Yingling, another lawyer, out-of-state lawyer, 7 to tell me what? That RTC is separate from Flag. 8 MR. HERTZBERG: No -- 9 THE COURT: I know that. 10 MR. HERTZBERG: -- there's more to it than 11 that, your Honor. And I -- the important part of 12 that is that RTC has a larger function, and that is 13 to protect the religion of Scientology. It's not 14 just a question of making sure that the ecclesiastic 15 doctrines are properly applied; that the trademarks 16 are -- 17 THE COURT: Protected. 18 MR. HERTZBERG: -- utilized properly. 19 THE COURT: And protected. 20 MR. HERTZBERG: I'm sorry? 21 THE COURT: And protected. 22 MR. HERTZBERG: And protected. 23 And a lawsuit such as the one here is -- and I 24 will tell you in a moment why I'm saying this -- but 25 a lawsuit such as the one here is a lawsuit which Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 61 1 involves a defense by lawyers who are familiar with 2 how to deal with what I call anti-Scientology cases. 3 And those cases existed, there were -- there were 4 scores of them in the period where Mr. Prince was 5 saying that he was discussing strategy with myself, 6 Mr. Lieberman and at least four or five other 7 lawyers that he named who are -- 8 THE COURT: On the McPherson case? 9 MR. HERTZBERG: No. Because Ms. McPherson was 10 alive at the time. 11 THE COURT: Okay. 12 MR. HERTZBERG: So obviously, if the standard 13 is -- and I don't believe it is, under the law -- 14 that the case had to have existed at the time, then 15 we're out of luck. But that's not -- 16 THE COURT: Well, related -- 17 (Simultaneous speakers.) 18 MR. HERTZBERG: -- the standard. 19 THE COURT: -- I'll -- 20 MR. HERTZBERG: It's related. 21 THE COURT: -- grant you -- 22 MR. HERTZBERG: It's similar. 23 THE COURT: Similar, related to; something. 24 MR. HERTZBERG: It's similar, and it is 25 related. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 62 1 And it is precisely the kind of scenario where 2 RTC, in its role of protector of the religion, will 3 be concerned where the religion of Scientology is 4 being attacked from any source, including a lawsuit. 5 And that's exactly the kind of lawsuit that has been 6 maintained here, in particular since Mr. Prince's 7 involvement. 8 This has become -- become an attack on the 9 ecclesiastic leadership of the church, on 10 Mr. Miscavige in particular. 11 Let's not forget that right after Mr. Prince 12 was hired and began to sell his testimony to 13 Mr. Dandar's firm, Mr. -- in contravention of that 14 agreement, RTC was sued; they tried to bring RTC in; 15 they tried to bring Mr. Miscavige in as a defendant. 16 And they succeeded for a while. And they named 17 Mr. Rathburn as a putative defendant. They then 18 abandoned the course of action as to RTC and 19 Mr. Rathburn, but Mr. Miscavige was in the case for 20 a while. 21 That was a direct attack on the leadership of 22 the church, the leadership of the religion, the -- 23 THE COURT: And RTC. 24 MR. HERTZBERG: And RTC. That's exactly right. 25 THE COURT: The head of RTC. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 63 1 MR. HERTZBERG: That's correct. 2 THE COURT: And that's what I've been told. He 3 doesn't head up the Sea Org. You all deny that. 4 MR. HERTZBERG: The Sea Org has nothing to 5 do -- 6 THE COURT: Sea Org has nothing to do with it. 7 MR. HERTZBERG: That's right. 8 THE COURT: Mr. Miscavige is the ecclesiastical 9 leader of the church through his position as 10 chairman of the board of RTC. 11 MR. HERTZBERG: That's right. 12 THE COURT: Okay. Not Flag. 13 MR. HERTZBERG: That's correct. 14 THE COURT: Okay. 15 MR. HERTZBERG: And your Honor, it was an 16 attack on the religious doctrine of the church, a 17 central focus of the trial, and of this church -- of 18 this case has been the introspection rundown. 19 Mr. Dandar made the introspection rundown a focus of 20 his complaint. Numerous Scientology practices are 21 the focus of the complaint. These have been 22 elaborated upon since Mr. Prince's involvement. 23 So there can't be any question. This is not -- 24 you know, if this case, the McPherson case or the 25 Liebreich case -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 64 1 THE COURT: Well, the other day, if I 2 remember -- 3 Just let me stop you for just a minute. 4 If I remember correctly, Mr. Dandar said, well, 5 really, no, there wasn't any introspection rundown. 6 It was the church that was quite adamant that there 7 was an introspection rundown. 8 MR. HERTZBERG: He alleged it in his complaint, 9 your Honor. And that issue will be resolved -- 10 THE COURT: But I mean, I know -- 11 MR. HERTZBERG: -- shortly. 12 THE COURT: Maybe you weren't present, but I do 13 recall that Mr. Dandar was saying that issue isn't 14 resolved; I don't think Lisa McPherson was in an 15 introspection rundown. And the church is quite 16 adamant saying that she was. 17 MR. HERTZBERG: Your Honor -- 18 THE COURT: And the church has always 19 maintained that she is This isn't Mr. Prince; this 20 is the church's position, isn't it? 21 MR. HERTZBERG: It is -- it is the church's 22 position, your Honor. 23 But there are -- this lawsuit -- let me put it 24 in as stark terms as possible. If this were a case 25 that were devoid of all the trimmings and the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 65 1 essence of an attack on the religious practices of 2 Scientology, the trial in this case might last 3 perhaps a week. You put a couple of doctors on the 4 stand, they put theirs on, we put ours on, and 5 they'd have a grand -- 6 (There was an interruption in the proceedings.) 7 MR. HERTZBERG: Your Honor, this -- if -- 8 devoid of the trappings of the attack on the 9 religion that has occurred to date and which is 10 forecast for the trial. 11 THE COURT: There isn't going to be that 12 forecast for the trial. You all have told me eight 13 weeks with nothing forecast for the trial except 14 what I perceive to be necessary as a brief 15 explanation of the introspection rundown to a jury 16 and my telling them they have to accept that as 17 gospel and fact and not to intrude on it because 18 that's a religious doctrine. Now apparently 19 Mr. Lieberman and others don't like that because 20 they seemed to make that an issue on a writ of 21 certiorari. 22 However, I don't much plan to have a bunch of 23 religion in this trial, because it's a wrongful 24 death case. I'm perfectly willing to tell the jury 25 or allow your lawyers or your witnesses to explain Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 66 1 your religious practice. I thought it would be much 2 better coming from me telling the jury, this is a 3 religious practice, and they're to stay out of it. 4 If the lawyers don't want that and they want to put 5 witnesses on to explain that, perfectly all right 6 with me. 7 But I guarantee you, I guarantee you, the 8 plaintiff is not going to put the church on trial. 9 They're going to do a wrongful death case. And I 10 further guarantee you that it's going to be your 11 side that's going to be putting the religion in the 12 case. There is not a doubt in my mind, unless 13 Mr. Dandar doesn't have a clue on how to try a case. 14 MR. HERTZBERG: Your Honor -- 15 THE COURT: I don't care what he said and I 16 don't care what he's doing, but you're not going to 17 hear him put the church religion on trial. Not in 18 the wrongful death. Maybe in your complaint, in 19 your counterclaim, where you talk about abuse of 20 process -- and that was all the way along in that 21 35-day hearing -- yes, indeed, the practices of the 22 church are indeed going to be relevant to defend 23 that case. That's your complaint, not his 24 complaint. His complaint's a wrongful death 25 complaint. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 67 1 MR. HERTZBERG: Your Honor -- 2 THE COURT: You watch, you watch, Counselor, 3 and see who makes religion an issue in this case. 4 MR. HERTZBERG: Your Honor -- 5 THE COURT: And as I said, well, I was willing 6 to take the lead for the church and present that to 7 the jury rather quickly and rather absolute; 8 apparently that isn't wanted by the church. So 9 they're going to have to parade the witnesses into 10 the courtroom with me being very quiet while they do 11 that for the benefit of the jury. 12 Now, that's who's making religion an issue. 13 And of course, since Mr. Lieberman took 14 exception to my suggestion that that would be a very 15 short matter, shouldn't need to be dealt with much 16 at all, then I have to assume that's the way the 17 church is going to try this case. They want no help 18 from me except in jury instruction. They're going 19 to put on their own case, and that's perfectly okay. 20 I just was going to do it for them. 21 MR. HERTZBERG: Judge Schaeffer, irrespective 22 of how the trial is going to play out, the fact is 23 that this was not framed as a simple wrongful death 24 case. This -- this case has been litigated, in 25 particular since Mr. Prince's involvement, as an Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 68 1 anti-Scientology case, and he has injected -- he 2 injected the end cycle and -- and -- and greatest 3 good for the greatest number and all those theories 4 that you heard about -- 5 THE COURT: You don't expect to hear that in 6 the wrongful death case, do you? 7 MR. HERTZBERG: No. But it has been -- 8 THE COURT: No. You expect to hear -- 9 MR. HERTZBERG: -- part -- your Honor -- your 10 Honor -- 11 THE COURT: You expect to hear -- 12 I mean, this was interjected because of, number 13 one, an affirmative defense that you raised and, 14 number two, a counterclaim that you raised. There's 15 not going to be any greatest good for the greatest 16 number. There isn't going to be any fair game. 17 There isn't going to be anything -- 18 MR. HERTZBERG: But there has been -- 19 THE COURT: -- in the wrongful death case. 20 MR. HERTZBERG: Judge Schaeffer, the answer is, 21 however, that we cannot ignore what has happened to 22 date. What has happened to date is, that this case 23 was not litigated, since Mr. Prince's involvement in 24 particular, as a straightforward wrongful death 25 case. It was litigated as an attack on Scientology Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 69 1 and its ecclesiastic leadership, and there are 2 remnants of it even in the aftermath of the 3 amendment to the complaint which -- the amended 4 complaint which Mr. Dandar just filed. There still 5 are remnants about the command lines which -- 6 THE COURT: There is evidence about the command 7 lines. Quite frankly, there is evidence enough to 8 give to the jury that the reason for the delay in 9 getting attention for Lisa McPherson is because, 10 clear up to the top -- there's plenty of evidence, 11 if he elects to put it on, that Mr. Miscavige was 12 indeed somehow notified. 13 What I made clear is there is no evidence in 14 the record, other than the pure speculation of Jesse 15 Prince, that Mr. Miscavige in any way, shape or form 16 ordered the death of Lisa McPherson. That -- there 17 is none of that and I said take it out. 18 However, as far as this -- what I consider to 19 be a rather ridiculous motive, there is evidence in 20 the record where they can pursue that if they want 21 to. There is also evidence in the record, quite a 22 bit of evidence in the record, that suggests that 23 this was indeed reported up-line and indeed people 24 up-line were making decisions. Now that can very 25 well be litigated. I have not removed that from Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 70 1 this case, and quite frankly there's evidence of it. 2 There's evidence against it. That's what trials are 3 all about. 4 MR. HERTZBERG: Your Honor, I'm going to move 5 on. I just want to -- I want to reiterate, 6 though -- 7 THE COURT: Talk to me a little bit about 8 laches. Why did you wait so long to file this? 9 MR. HERTZBERG: Well, we didn't. In the 10 general scheme of things we did not. 11 THE COURT: Okay. 12 MR. HERTZBERG: And I just want, as a point of 13 departure for -- for -- for that, I want to bring 14 your attention to Exhibit A to our motion -- 15 THE COURT: All right. 16 MR. HERTZBERG: -- and page 999. 17 It's ironic, Mr. Dandar is complaining to this 18 court in May of this year, at lines 14 through 17, 19 "But I'll also tell you that RentClub case they cite 20 over and over again has been superseded." And then 21 he refers to the HCA Management, which is actually 22 HBA Management case. Which we distinguish at 23 footnote 1 of our brief. 24 But here is Mr. Dandar complaining to the court 25 about our citing RentClub over and over again. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 71 1 And the context for that, your Honor, is from 2 the very -- virtually the inception of the time that 3 Mr. Prince filed an affidavit in this case, shortly 4 thereafter we began to complain that he was a paid 5 fact witness. And you know, we've been focusing 6 almost exclusively, and in fact exclusively during 7 this argument, on the confidentiality portion of the 8 RentClub decision. 9 There are two separate prongs for Judge 10 Kovakevitch's decision, either of which are grounds 11 for the disqualification which we seek by our 12 motion. And the other is the appearance of 13 impropriety that arises from the payment of a fact 14 witness, and we maintain that Mr. Prince is a fact 15 witness. There is no dispute with the fundamental 16 precepts that underpin our argument in our brief, in 17 their reply. They don't dispute the payments which 18 are cataloged in excruciating detail in the 19 ancillary motion based on the Golden Door case -- 20 THE COURT: And previously you filed a motion, 21 if I remember correctly, to disqualify Mr. Prince on 22 the basis that he was a paid fact witness, is 23 that -- 24 MR. HERTZBERG: That's correct, we did. 25 THE COURT: -- true? So -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 72 1 MR. HERTZBERG: And he was withdrawn -- for a 2 large period of time he was withdrawn as a witness 3 entirely. We don't believe there are any -- there's 4 laches. We started -- we started -- 5 THE COURT: Well, let me ask you, because this 6 concerns me -- 7 MR. HERTZBERG: Sure. 8 THE COURT: -- have you, before you filed the 9 present motion, filed a motion to disqualify 10 counsel -- which is what I am looking at for 11 laches -- to disqualify counsel based on this issue 12 prior to the time you filed your motion? 13 MR. HERTZBERG: No. 14 THE COURT: Yes, you have filed a lot of 15 stuff -- 16 MR. HERTZBERG: No. 17 THE COURT: -- by Jesse Prince and paid fact 18 witness. 19 MR. HERTZBERG: We didn't, your Honor, and -- 20 THE COURT: Why not? 21 MR. HERTZBERG: Because what really brought 22 this home and triggered this and gave us what we 23 believe is a solid foundation, more solid in our 24 belief than apparently in yours, was the testimony 25 of Mr. Dandar during the course of the omnibus Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 73 1 hearing; that this is -- this motivated him to a 2 point to where he bragged to -- to his client, "I 3 got the guy who hired the lawyers, who dealt with 4 them, who ran the litigation, who knows everything 5 about their litigation." That came out this summer, 6 your Honor. 7 THE COURT: So if I read your RentClub 8 motion -- and I haven't read it in some time because 9 I don't think it's been called for hearing, maybe it 10 has -- your RentClub motion regarding Mr. Prince 11 being disqualified because he was a paid fact 12 witness -- I'm not going to see any of this stuff. 13 I'm not going to see any of this stuff about how he 14 was giving confidential information to the lawyers 15 or anything like that. That just became clear. 16 MR. HERTZBERG: I'm sorry. I'm not 17 understanding your Honor's question. 18 THE COURT: Okay. 19 MR. HERTZBERG: I'm sorry. 20 THE COURT: I -- I think Mr. Dandar has raised 21 two issues; one is substantive and one is laches -- 22 MR. HERTZBERG: Right. 23 THE COURT: -- which is that you waited till 24 the eve of trial and you filed this motion to 25 disqualify knowing, full well whatever ruling I Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 74 1 make, if I rule against you, you take a motion, you 2 take a writ of certiorari, which is the only way to 3 do a disqualification, and that becomes one that 4 must be heard before trial. 5 Therefore, as matter of course, if you -- if 6 you lose this motion, you will have this trial 7 continued. No question about it. Because there's 8 no way, there is absolutely no way the district 9 court of appeal is going to be able to decide this 10 prior to the scheduled trial date. 11 So he's saying he's prejudiced once again; this 12 thing's been set for trial umpteen million times, 13 and you have never raised a disqualification motion 14 on RentClub. Forget the omnibus motion for the 15 moment. That may be something you might want to 16 think about. 17 However, on the RentClub issue, you haven't 18 raised disqualification till the eve of trial, 19 knowing full well, if you win, he has to take an 20 appeal if he wants to stay on the case; if you lose, 21 you will take an appeal, either of which will 22 postpone this trial once again. Which he has always 23 maintained you've wanted to do, postpone it ad 24 infinitum. He has always wanted to get it to trial. 25 That's the issues that he -- that's the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 75 1 position he takes. 2 So my question is why didn't you file this 3 motion to disqualify; why didn't you file it when 4 you filed the omnibus motion so that we could have 5 asked Mr. Prince -- 6 MR. HERTZBERG: The omnibus motion preceded -- 7 I understand your Honor's question. 8 First let me make a categorical statement as an 9 officer of the court. We did not file this motion 10 as a ploy to defer the trial. I am telling you that 11 as an officer of the court. Admitted under -- under 12 the grace of this court, as I have been in courts 13 around this country, and I'm in good standing 14 everywhere. And your Honor, I am telling you this 15 is -- 16 THE COURT: Well, I've never seen -- 17 MR. HERTZBERG: -- the scenario that you are 18 describing is nothing that occurred to us or -- and 19 is -- definitely was not a motivation for the time 20 of the filing of this. 21 THE COURT: I understand that. 22 MR. HERTZBERG: And -- 23 THE COURT: I understand that all the lawyers 24 in this case stand up and say how that they're in 25 good standing, and yet I understand that you've Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 76 1 accused Mr. Dandar of perjury and suborning perjury. 2 I understand Mr. Dandar has accused you and the 3 lawyers of the church of extortion and blackmail. 4 It has not been pretty in this case. Therefore, I 5 don't expect just because you say something for 6 Mr. Dandar to agree with you. I certainly don't 7 expect when he says something for you to agree with 8 him. It has never happened. I believe one time in 9 this whole case since I've been in it both sides 10 have agreed with each -- I mean, I can't even get a 11 simple order signed very often without a huge 12 dispute. 13 So I appreciate what you're saying. I don't 14 expect Mr. Dandar will necessarily agree. 15 He is saying and has said in his pleading this 16 late file is a huge prejudice to him. 17 MR. HERTZBERG: Right. 18 THE COURT: The reason being it's going to 19 continue the trial. 20 MR. HERTZBERG: Well, I have further answers. 21 I -- I said that I was going to initially make a 22 representation as an officer of the court. 23 THE COURT: And I accept that as an officer -- 24 MR. HERTZBERG: Well, I want to go beyond that. 25 THE COURT: And I accept his as an officer of Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 77 1 the court. 2 MR. HERTZBERG: All right. 3 THE COURT: And his will be different -- 4 MR. HERTZBERG: Your Honor, the fact is that 5 the testimony -- 6 THE COURT: And you know, you interrupt, you 7 interrupt me and interrupt me. The truth of the 8 matter is, have you ever been to an appellate 9 argument where you never got to say a word, where 10 the judges ask all the questions and when your time 11 is up they said sit down? If you, haven't you 12 haven't lived. So stop interrupting me when I'm 13 asking you questions. 14 MR. HERTZBERG: I apologize, your Honor. 15 THE COURT: And you know what, I was going to 16 give you more time, but you've just interrupted me 17 for the last time. You've been going on for 35 18 minutes, and because apparently you don't care about 19 my questions and you don't want to answer my 20 questions, your time is up. Thank you, Counsel. 21 Mr. Dandar? 22 MR. LIROT: May it please the court, your 23 Honor -- 24 THE COURT: Mr. Lirot. 25 MR. LIROT: -- I'd like to respond to this Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 78 1 argument. 2 THE COURT: And by the way, it's 25 minutes 3 till 12. And after I asked my initials questions, I 4 looked at the clock and it was five minutes after 5 12. So it's been 30 minutes. You're starting, and 6 if there's something I want to know right off the 7 bat, which there will be, your clock is starting and 8 you're going to get a half an hour. Go ahead. 9 MR. LIROT: Excellent. 10 Judge, there comes a point when I think that 11 the defendant's continuous attempt to take 12 diametrically opposed positions throughout the 13 history of this case should result in a denial of 14 the relief that they request. And candidly, Judge, 15 I think that to start off with the last issue 16 discussed, I'm going to track Mr. Dandar's response 17 in opposition to their motion to disqualify. He 18 starts off by saying Jesse Prince never disclosed 19 any attorney-client privileged communications and 20 work product, trade secrets or proprietary 21 information of the church. 22 Now, you've already given me every reason to 23 believe that you've read the RentClub case and you 24 understand that RentClub does not follow Florida 25 law. It makes some -- some unique observations, and Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 79 1 obviously in that case it was found that the -- the 2 knowledge that was gained by the hiring of an 3 individual that was part of an organization during 4 the pendency of litigation -- they hired this guy 5 after the case had already been filed, and he became 6 their expert witness I think five days after he left 7 the adversary's employ. 8 Judge, in this case -- 9 THE COURT: But he was employed by the 10 adversary at the time this was all going on. 11 Whatever was going on, he was an employee of the 12 defendant, or of the plaintiff, or whatever it was, 13 was he not? 14 MR. LIROT: That's exactly correct. 15 THE COURT: Right, quite different from how 16 many years past in this case? 17 MR. LIROT: Well, Judge, we -- 18 THE COURT: At best, the one admission we did 19 get was 1987, I believe, was the last time that 20 Mr. Prince had any executive position. And this 21 case could not have occurred until Lisa McPherson 22 died, which would have been 1995. I think it was -- 23 it was -- 24 MR. LIROT: That's exactly correct. 25 THE COURT: -- 1997 or something like that. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 80 1 MR. LIROT: That's exactly correct. 2 THE COURT: And when did Mr. Prince come on the 3 scene? 4 MR. DANDAR: December of '98. 5 MR. LIROT: December -- 6 THE COURT: When was this -- when was this -- 7 this apparently -- this meeting in Key West? 8 MR. DANDAR: July, '99. 9 THE COURT: Okay. So I believe I heard the 10 church lawyer indicate that the -- the date, 11 apparently as far as they know, that Mr. Prince 12 first came on the scene was '99. Now for laches 13 purposes, what we need to look at is when was the 14 first time they became aware of the fact that 15 Mr. Prince was being used as an expert witness or he 16 was being used as a fact witness. They clearly knew 17 what his position was; they clearly knew whether or 18 not he was subject to confidential information. And 19 the law seems to suggest that once they know that 20 they have an obligation to present their motion and 21 not delay it. 22 So I would ask you when was it either, A, that 23 Mr. Prince filed his affidavit or, B, when was it 24 that the first request to let Mr. Prince examine the 25 PC folders of Lisa McPherson was filed. What month Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 81 1 and year, if you can tell me that? 2 MR. DANDAR: December, '98. 3 MR. LIROT: It was December of 1998, your 4 Honor. 5 THE COURT: So as of December, 1998 it is your 6 position that the church was well aware that Prince 7 had been hired; they knew who he was; they knew what 8 confidential information he had about this case and 9 they could have filed their motion. Is that in 10 essence, sum and substance the laches part of this? 11 MR. LIROT: It is, your Honor, and I think that 12 with much more specificity, if you have Mr. Dandar's 13 motion on page 7 of that pleading, we go through 14 chapter and verse of whether or not the church knew 15 in 1998. Clearly there are pleadings that arise as 16 of August of 1999 -- 17 THE COURT: When did he file his affidavit, the 18 affidavit that they say is a fact affidavit? 19 MR. LIROT: It was September of 1999, Judge. 20 THE COURT: So clearly as of that date if they 21 didn't understand before what was going on, they had 22 the affidavit in hand of Jesse Prince which accused 23 David Miscavige, as I recall, of -- of murdering 24 Lisa McPherson, or whatever, end cycle and all that 25 sort of stuff, which gave rise to the fifth amended Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 82 1 complaint. 2 MR. LIROT: Understood, Judge. 3 THE COURT: December of '99, is that it? 4 MR. DANDAR: No. 5 THE COURT: September of '99? 6 MR. DANDAR: September. 7 MR. LIROT: September, 1999, Judge. 8 THE COURT: What happened in December of '98? 9 MR. DANDAR: Examination of the PC folders of 10 Lisa McPherson. 11 THE COURT: And I take it that you filed some 12 sort of a motion? 13 MR. DANDAR: Motion, order, hearing; they were 14 present watching Mr. Prince and Stacy Brooks 15 examine -- 16 THE COURT: What did you say about it? I mean 17 did you make it real clear that he was your expert 18 witness on this PC folder? 19 MR. DANDAR: He was a -- no. Not expert. I 20 did not use the word "expert." But he was -- 21 THE COURT: Consultant. 22 MR. DANDAR: He was a consultant reviewing the 23 PC folders. 24 THE COURT: Okay. Were they present when 25 you -- I mean is there any question that they knew Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 83 1 that as of December of '98, that -- 2 MR. DANDAR: Yes, there was a -- 3 THE COURT: -- you were using Jesse Prince? 4 MR. DANDAR: There was a hearing about it, and 5 I'm -- there could have been -- even have been an 6 appeal of the order. There's so many appeals, I get 7 lost. 8 But Jesse Prince -- Len Stylo, their 9 representative who signs the answers to 10 interrogatories early on in the case, I believe he's 11 from OSA, he was present in my office. He -- when 12 the PC folders were being looked at, the 13 originals -- 14 THE COURT: I don't care about that date, 15 Mr. Dandar. The date that I care about is when was 16 it that you made your request to allow Jesse Prince, 17 their previous employee, that they say was in an 18 executive position and had confidential information 19 that should not have been revealed to you, they now 20 know you've got him in your employ, when you file 21 your motion I guess saying Jesse Prince is my expert 22 or my something to look at these PC folders. 23 What -- 24 MR. DANDAR: That would have been in November 25 of '98. He looked at them in December of '98. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 84 1 THE COURT: All right. So in November of '98 2 the church knew this could be dangerous. 3 MR. DANDAR: Yes. 4 THE COURT: And they waited until when to file 5 this? 6 MR. DANDAR: September of 2002. 7 THE COURT: Okay. And your argument is that's 8 too late. 9 MR. DANDAR: Way too late. 10 THE COURT: All right. I understand that 11 argument. I'll make a ruling on it. And I 12 understand the church's position is they didn't know 13 the extent to which you were going to use him until 14 they heard your own testimony about you were going 15 to use him because he knew strategies and trial 16 strategies -- you did say that, didn't you? 17 Mr. Lirot, I guess I should be addressing you. 18 You're the lawyer here arguing this motion. Mr. -- 19 MR. LIROT: Judge, I think, if you look at the 20 deposition transcripts and whatever concerns they 21 would have had with Mr. Prince -- 22 THE COURT: No, no, no, we're past that. We're 23 talking about laches, and then I'm going to get you 24 get to the rest of your motion. 25 On laches, their argument is the reason why Kanabay Court Reporters; Serving West Central Fl orida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 85 1 they didn't file the RentClub motion to disqualify 2 counsel is because they didn't realize the extent to 3 which Mr. Dandar even went to tell his client what 4 he was really using him for until the omnibus 5 hearing, and at the omnibus hearing they quote 6 Mr. Dandar and they quote what he says and what he 7 was telling his client. What tab was that, 8 Counselor? 9 MR. HERTZBERG: Tab B, your Honor. 10 THE COURT: Tab B. 11 And it is where Mr. Dandar is saying in his 12 testimony, "So that's when I made a decision to 13 contact my client, Dell Liebreich, and I said, look, 14 I have Jesse Prince here, I told him all about -- 15 told her all about Jesse Prince." And then you go 16 down to the next thing they've highlighted, "And 17 this person was in charge of litigation previously, 18 years ago for the Church of Scientology, went around 19 the world hiring law firms. He went around telling 20 them how to conduct their litigation." 21 So what they're stating is that and perhaps 22 other things in here that I maybe haven't read, "And 23 that's when he came up and told me he was the number 24 two worldwide in the Scientology hierarchy of 25 executives. He was an executive officer -- I'm Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 86 1 forgetting what officer, what position -- of the 2 RTC, which is corporately --" I don't know what 3 that has to do with anything. But the other thing 4 that I read to you. 5 That's when they realized that Mr. Dandar was 6 hiring him exactly for why they think he shouldn't 7 have hired him, which was to tell him how to conduct 8 litigation because he had that insider information 9 when he worked for RTC and was around their lawyers. 10 That's why they were late. 11 What do you want to say to that? 12 MR. LIROT: Judge, that -- that just doesn't 13 ring true based on the deposition testimony. They 14 took Mr. Prince's deposition far in advance of that, 15 and they asked him who he had worked with and what 16 he had done, and basically -- 17 THE COURT: When did they take it? Can you 18 tell me that? 19 MR. LIROT: It was in 1999, Judge. And I 20 believe that there is actually an excerpt. And this 21 was the -- actually the church's supplemental 22 filing -- give me just a second, Judge. Let me find 23 it here. Just -- again, just looking at the page, 24 it's on page 683 of this deposition from -- well -- 25 THE COURT: Apparently he was deposed at least Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 87 1 in part November 17th and 18th of '99. 2 MR. LIROT: '99. That's it, Judge. 3 THE COURT: Okay. 4 MR. LIROT: So I mean, clearly that -- 5 THE COURT: That's where he says you discussed 6 strategy with Mr. Hertzberg; you discussed strategy 7 with -- you discussed strategy about pending case 8 with Eric Lieberman; you discussed strategy of 9 pending cases with Earle Cooley. Name some of the 10 other lawyers you discussed strategy with. And he 11 goes on to talk about Mr. Hertzberg and others. 12 Does it say in here anywhere whether or not he 13 discussed those strategies with Mr. Dandar? 14 MR. LIROT: If it did I would trust our 15 opponents to have included that excerpt. 16 THE COURT: Well, I wouldn't necessarily, 17 because that would kind of defeat your laches -- I 18 mean, this is such a two-edged sword; this is such a 19 fine line. 20 And when I say not necessarily, I'm not saying 21 anything unkind. The church is walking an extremely 22 fine line in this RentClub motion. I don't know if 23 they're aware of it, but I suspect they are. 24 Because they want to take one position and then they 25 want to take another position here. They don't want Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 88 1 to file an affidavit, I know that. They certainly 2 don't want to admit that RTC and Flag are in any way 3 related. They have always taken the position that 4 they're separate. 5 But nonetheless, it's very important to every 6 single case they discuss here that Jesse Prince is 7 an employee of the party. And of course, RTC is not 8 a party, by virtue of their request to get them out. 9 So they are not a party; they fought bringing them 10 in as a party; they prevailed in not allowing them 11 to be brought in as a party; they sued to assess 12 damages. And all this time it's been that RTC is 13 separate. 14 Well, if that's true, that Jesse Prince was an 15 employee of RTC, then all these cases really have 16 very little to do with this, seems to me. So I 17 guess then what they have to say, that doesn't 18 matter -- that's what they've said -- because he had 19 confidential information which related somehow to 20 the Lisa McPherson case. 21 And what's the best they've come up with? 22 'Cause they're not going to file an affidavit 23 telling us that Mr. Prince is a high-and-mighty with 24 all kinds of great information, because they've said 25 so many other times that he is not and does not, and Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 89 1 they want to be able to attack him without any 2 question, in the event you call him as your expert 3 witness. Which I've indicated I will allow you to 4 do, but don't believe in a million years you will. 5 So that's the fine line they're working. 6 So what they're squawking, what they're saying, 7 is that he has strategy that he shared with you all. 8 So the problem is, of course, the strategy, it seems 9 like, came out in his deposition in 1999. So 10 they're still a little late in filing this, I guess 11 is your position. 12 MR. LIROT: It is, Judge. And one of the 13 things that caused us concern is that we seem to 14 have this shifting description of RTC as what is 15 today this blanket protector of the ecclesiastical 16 beliefs of the church; earlier on they were simply 17 there to protect trademark and copyright issues -- 18 THE COURT: What I remember, at least certainly 19 in part, and in large part and in important part, 20 but I don't doubt that RTC has something that it 21 does beyond that, although perhaps it -- they have 22 alleged before it doesn't. I really don't know 23 because I never paid much attention to RTC. I 24 believed them when they said it was not related to 25 Flag, it was a totally separate corporation. Judge Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 90 1 Moody apparently found that it was. That had been 2 their position right along until now. 3 And so you know, somebody's going to have to 4 help me to understand that. 5 And Mr. Hertzberg's done the best he can by 6 telling me, I guess, that Ms. Yingling will provide 7 an affidavit, although she certainly didn't provide 8 one here, and you would have thought Mr. Hertzberg 9 might have known that would be a question, but my 10 first question out of my mouth. 11 But go on ahead. 12 So the laches argument, I understand. I'll 13 rule on it. I understand the positions of the 14 various sides. And I -- I'll ferret that out and 15 make a decision. 16 MR. LIROT: Very good, Judge. I won't take any 17 more time, but I -- we've listed all the factual 18 assertions that support that argument. 19 To get into the case law and why we -- 20 THE COURT: Tell me why I shouldn't follow the 21 RentClub case. I've read all these cases. I've 22 read some cases that you've submitted and I've read 23 some you haven't submitted. And quite frankly, I'm 24 pretty comfortable with what the test is in Florida. 25 I think that the test in Florida is that they Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 91 1 have to -- it's their burden; it's their burden to 2 come forward and tell us that there's confidential 3 information. They have -- they can't do it in 4 generalities; they can't have some lawyer stand up 5 here and say it. They have to file an affidavit. 6 You can then file a contrary affidavit, in which 7 case we're going to have an evidentiary hearing and 8 I'm going to resolve issues of fact. They haven't 9 even asked me to do that. They don't have an 10 affidavit, therefore I'm afraid they're going to 11 fail bitterly in their burden of proof. And the 12 burden of proof is indeed theirs pursuant to Florida 13 law. 14 MR. LIROT: That's correct, Judge. 15 THE COURT: You would agree with that. 16 MR. LIROT: Absolutely. 17 THE COURT: All right. But there is this case 18 of RentClub, which is Judge Kovakevitch. 19 Who, by the way, is a district judge, trial 20 judge, just like me. As far as I know, I'm not 21 bound by anything Judge Kovakevitch does. I've 22 never been told by the Florida Supreme Court or any 23 district court that I am bound by anything Judge 24 Kovakevitch rules. She's a trial judge in a 25 different forum. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 92 1 The 11th Circuit, of course, as they're 2 required to do, take a petition for cert, just like 3 whoever loses this one the appellate court is going 4 to do. It's an abuse of discretion review. The 5 11th Circuit case is clear as a bell. It's short, 6 to the point, and what they said, they can't find, 7 based on the record, that Judge Kovakevitch abused 8 her discretion. That's all the 11th Circuit case 9 stands for. 10 So the real question is, am I obliged to follow 11 Judge Kovakevitch's ruling or is that -- is that one 12 of those cases that can be persuasive or otherwise? 13 I suggest unless the church can find me some case 14 that says it's binding on me, that it isn't. It's 15 persuasive only. 16 What is binding on me, however, are cases out 17 of Florida district courts; in particular, the case 18 that seems to me to be on the money here, as close 19 as anything that I could find, which is the Carnival 20 case out of the Fifth District, which distinguishes 21 RentClub, sets out some facts that would seem to be 22 somewhat similar and seems to set the standard, 23 seems to set the standard. There are differences, 24 and granted I'll have to deal with those 25 differences. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 93 1 Counsel elected not to deal with the Florida 2 case; to deal with the RentClub case. There's 3 nothing in their brief about these Florida cases so 4 there'll be nothing to help me. So I'm going to 5 have to once again do it myself. 6 But in this case, there was an affidavit filed 7 by Carnival to begin the motion, and the affidavit 8 stated what the employees did and what the employees 9 knew. And I think that as I -- as I read this case, 10 it -- for example, says here -- distinguishes 11 RentClub, completely distinguishes RentClub. 12 And it says, "The burden of establishing the 13 existence of the attorney-client privilege rests on 14 the party asserting in the privilege." So I'm bound 15 by that. Doesn't matter what Judge Kovakevitch 16 said; it doesn't matter that she looked at claims or 17 anything of the sort. It says the burden is on the 18 party. And thus far all we have is a lawyer who 19 says there was a conflict. Nothing, no affidavit, 20 and no suggestion of what it is; no suggestion how 21 to tell me in camera so that you don't know about 22 it. Although you must know about it, because they 23 suggest that Mr. Prince would have told you about 24 it. 25 Go ahead. Keep going. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 94 1 MR. LIROT: Well, Judge, I think in our -- 2 THE COURT: Is that your argument, that this 3 Carnival case and the Second DCA case are binding on 4 me? 5 MR. LIROT: Absolutely, Judge. No question 6 about it. 7 THE COURT: Okay. 8 MR. LIROT: And then again, Carnival's decided 9 six years after RentClub federal decisions. And I 10 think one of the things that we haven't mentioned is 11 that there was a significant change in the ethical 12 rules that the court is to look to. 13 And I think one of the later cases that we 14 cited goes through a rather -- I think a pretty 15 succinct analysis of that; that when RentClub was 16 decided you're working under canon 9, and that 17 before there was simply a presumption of 18 impropriety. And that these later cases actually 19 asked the court to look at the evidence to show that 20 the other side has gained some sort of unfair 21 advantage, and no, you can't simply get by by making 22 these general assertions of some sort of conflict 23 being created. 24 The court's got to be apprised of the facts 25 that create a material impropriety. There's got be Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 95 1 some kind of material and relevant knowledge that's 2 been imparted from the individual who's been 3 asserted as having this confidential information. 4 And not only that, they have to show that it creates 5 an unfair advantage. 6 And we don't have anything to go by. I don't 7 know what to respond to because we don't have any 8 specifics other than this guy, contrary to what 9 was -- was -- was told us before, he wasn't just a 10 janitor. He talked to lawyers from all over the 11 world. Well, you know, what is it that he talked 12 about to make these copyright cases or any other 13 ecclesiastical case bear any similarity to the 14 wrongful death cases before this court at this 15 point. 16 THE COURT: I think what they're saying is it's 17 trial strategy; it was the best they've come up 18 with. It isn't just the lawyers. The best the 19 lawyers come up with is that Mr. Prince, through his 20 own testimony, is aware of trial strategy. I don't 21 know what trial strategy. They don't want to tell 22 me. But some trial strategy. 23 Now I take it I take it -- I take it -- and I'm 24 guessing this from other things that I've heard the 25 church say on numerous occasions -- this trial Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 96 1 strategy being join David Miscavige and it'll bring 2 you a settlement. That's what I think they might be 3 talking about; I have heard this said before. They 4 can get David Miscavige -- not them, but this is 5 what the philosophy is of these antilitigation 6 lawyers. You can join David Miscavige, the church 7 will settle, they don't want him deposed, they don't 8 want this and that and the other thing. So the 9 strategy is -- 10 But of course every lawyer doing 11 anti-Scientology litigation would know that, so I 12 can't imagine that that's anything that Jesse Prince 13 would have added to this mix that wasn't already 14 quite well known. 15 So I don't know beyond that. That's the only 16 thing I can think of. But I guess what you're 17 saying is some sort of trial strategy. 18 MR. LIROT: We don't know what that could be, 19 Judge. 20 THE COURT: Can you respond to that general, 21 broad category of trial strategy? 22 MR. LIROT: Well, Judge, candidly, somebody 23 they allege is a janitor in 1987 cannot bring 24 anything to the table as far as trial strategy; plus 25 he's not counsel, he's not a party. He's a guy Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 97 1 that's -- that's there, at best, maybe supervising 2 issues involving copyright. I think when we saw the 3 videotape when he had his uniform on talking about 4 being able to ferret out squirrel groups or people 5 that I think have engaged in the unauthorized 6 practice of Scientology, that's really what he's 7 focused on. 8 There's nothing about that other than what we 9 certainly perceived as the trial strategy of our 10 opponents with the late filing of motions like this. 11 There's nothing there that even in any way would be 12 any kind of confidential information. They make us 13 work hard. That's about all he's able to tell us, 14 other than whatever he brought to the table on 15 issues that are no longer part of this case. 16 The issue with Mr. Miscavige and anything about 17 Mr. Dandar's intent to make this case perhaps more 18 susceptible to settlement by adding parties -- 19 THE COURT: Well -- 20 MR. LIROT: -- all those allegations are 21 meaningless at this point. 22 THE COURT: Don't forget, Counselor, that I've 23 ruled -- and I told you all this orally, and I'm 24 getting ready to do an order on it -- that -- that 25 in fact the addition of David Miscavige did come Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 98 1 about from Jesse Prince and Jesse Prince's 2 affidavit. There was more than that to it, which is 3 why I said it wasn't a sham pleading. You had 4 Vaughn Young; you had Stacy Brooks, who even 5 admitted in this hearing that we had that she sort 6 of thought that perhaps those were some ideas. And 7 if she even thought it when she was trying her very 8 best to recant from her testimony. I'm sure she was 9 a little more stringent about it when she was 10 talking with Mr. Dandar when she was his consultant. 11 So for those reasons I'm not willing to say 12 that Mr. Dandar should have realized that Mr. Prince 13 didn't have a clue except for what I consider to be 14 the sort of wild speculation. Because others 15 apparently were wildly speculating in the same vein. 16 And there's three folks, three insider folks, who 17 supposedly knew something, and as it turns out they 18 really didn't. At least Mr. Prince can't put his 19 finger on any fact. 20 MR. LIROT: Judge, I think Ms. Brooks was the 21 primary proponent of that -- 22 THE COURT: She was. There's no question about 23 it. She was. But she didn't file an affidavit or 24 anything, but she absolutely was. 25 MR. LIROT: It's clear on this record. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 99 1 THE COURT: So -- so maybe what they're saying 2 is she had a high position too. I don't know. See, 3 I'm having a hard time saying what it was, but I 4 think it was trial strategy, add Miscavige. I don't 5 know of any other trial strategy. 6 Can you -- I guess what I'm asking you is can 7 you respond to their allegation in the general 8 sense -- this case is not about specifics, but it's 9 a generality -- can you respond to the general 10 allegation that you've heard here today or that you 11 see raised in their motion? 12 They're relying on the fact, and they've said 13 it here today, that I should, when I look, not look 14 to an affidavit prepared by them telling me what is 15 confidential and what therefore may have been 16 revealed. What they are saying I should look to is 17 what Mr. Prince has said and what Mr. Dandar has 18 said. And their authority for that is RentClub. 19 And I don't discount RentClub. I mean, I know 20 Judge Kovakevitch very well. She's a dear lady, 21 fine judge, and I'm most happy to read her opinions 22 and follow them if they're not totally obscured by 23 Florida law. Which nobody in Florida has filed a 24 RentClub. And of course, the circuit courts of 25 appeal haven't either, when you get into researching Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 100 1 this, you'll find. 2 However, Judge Kovakevitch did seem to talk 3 about claims and the claims being what was being 4 claimed by the employees. 5 MR. LIROT: Correct. 6 THE COURT: So that is their position. And I 7 understand that position. And that is the position 8 Judge Kovakevitch took. 9 So how do you respond to that? Just that 10 Florida law doesn't seem to do that; or what is your 11 response? 12 MR. LIROT: Well, I think most of the Florida 13 decisions, Judge -- 14 And if I could just put those on the record, 15 the authorities that we're relying on, I think it 16 would be important. 17 You obviously recognize the case of Carnival 18 Corporation versus Ramero. That's 710 So.2d 690, a 19 Fifth DCA case from 1998. That talks about the 20 distinction with Rent Club as far as the using, you 21 know, nonattorney employees that were not part of 22 the claim. They weren't privy to any confidential 23 information about a case that was already in 24 process. 25 Judge, the other case that we'd cite -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 101 1 THE COURT: You don't have to tell me what 2 these cases say because I dare say you're not going 3 to give me one that I haven't read and I don't know 4 what it stands for. And whatever it is I do here 5 somebody's apt to take an appeal and you can put it 6 in your brief. 7 MR. LIROT: Fair enough, Judge. And I'll -- 8 THE COURT: And I'll give the clerk the -- give 9 her the citation, but you don't have to tell me what 10 they stand for. 11 MR. LIROT: All right. Can I just get these on 12 the record? 13 THE COURT: Yes. 14 MR. LIROT: Esquire Care versus Maguire, 532 15 So.2d 740. That's a 1988 case. 16 The HBA Management case which was the Florida 17 Supreme Court case that was cited by Mr. Hertzberg 18 and I think supports our position more, 693 So.2d 19 541, 1997 case. 20 Stewart versus BeeDee Neon Signs, a 2000 case 21 from the first DCA, 751 So.2d 196. 22 And Judge, the one that we talked about, I 23 think with the secretary that you might have 24 mentioned, was Lackow versus Heller at 466 So.2d 25 1120, a Third DCA case. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 102 1 Judge, what these cases talk about is, the 2 burden's on them to give us something specific to 3 respond to, and there either has to be some 4 knowledge of that specific case or some knowledge of 5 a case that has such great similarities as far as 6 the claims. I think the Carnival cases you've got 7 people that are -- that are suffering some mishap on 8 a cruise line. So you can see where there might 9 be -- possibility there might be some repetition of 10 similar claims, so there might be some repetition of 11 similar strategies. 12 The Lisa McPherson case is nothing and there 13 has been no case that we could even speculate on 14 that would be anywhere similar in the early '80s 15 that Mr. Prince would have ever had any information 16 on. This is a very unique case, Judge. I think 17 that's something I don't even need to stress to this 18 court. 19 But as far as the similarity of claims or 20 anything that Mr. Prince would do to give us any 21 kind of unfair advantage, I think that's really the 22 critical analysis. There's nothing that could come 23 to mind, and I would certainly submit there's 24 nothing that the defendants could possibly offer 25 this court to show that anything he knew had any Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 103 1 basis to give us an unfair advantage on the analysis 2 or legal strategy of a similar claim. 3 THE COURT: How do you respond to their 4 argument that K.A.W. -- I can't remember the first 5 part of it, but K.A.W., which is a Florida Supreme 6 Court case, talks about even though the canons did 7 away with the appearance of impropriety, as far as 8 disqualification is concerned that is still a test. 9 MR. LIROT: The appearance of impropriety test, 10 though, is backed up by the evidentiary analysis. 11 The appearance creates a presumption. But they've 12 got to carry their burden to support that 13 presumption, and if they don't, we don't have to do 14 anything to rebut. 15 Now, if -- I think the later cases talk about 16 the different situations; hiring a secretary from a 17 law firm or getting an employee that's already been 18 working on similar issues. I understand that 19 analysis. But here you're talking about a guy that 20 hasn't been there for well over 10 years. I just 21 don't think -- 22 THE COURT: Yeah. But does it matter? If 23 somebody's privy to confidential information -- and 24 one thing we do not address, although it's part of 25 the information that is filed by the church, and I Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 104 1 will accept it as such, was that Mr. Prince did sign 2 a document, and it certainly is a lot more than a 3 confidential agreement, but it does seem to say that 4 he's not supposedly to be revealing anything. He's 5 not supposed to be litigating or helping anybody to 6 litigate. I mean, the thing goes on and on and on. 7 There are cases where they seem to talk about 8 the fact that such an animal didn't exist in that 9 case, and I guess such an animal does exist in this 10 case. 11 MR. LIROT: But, Judge -- 12 THE COURT: Now Mr. Dandar says that some judge 13 somewhere threw it out, but I notice that he didn't 14 give me an order. And so I figure if he had one, he 15 would have provided it. He didn't have one so it 16 must be that either there wasn't one or it wasn't 17 exactly as he said it was. 18 MR. HERTZBERG: It wasn't. 19 THE COURT: Well, that's what I figured. 20 Because if he'd have had one that said that it would 21 have been real simple, then I could have just very 22 quickly relied on that. And so I don't have an 23 order so that isn't proved either. 24 MR. DANDAR: But we do have the deposition that 25 Sandy Rosen took of Mr. Prince. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 105 1 All I have is Mr. Leipold telling me that's 2 what happened. They argued the agreement and -- 3 THE COURT: Well, that's really good. I'd go 4 ahead and try to use that for something factual. 5 Okay. Tell me about this -- this -- what is -- 6 MR. LIROT: Judge -- 7 THE COURT: There is a document signed by 8 Mr. Prince that seems to say -- I mean, it says what 9 it says. 10 MR. DANDAR: Yes. 11 THE COURT: And you will agree that there are 12 some cases that seem to say that is one of the 13 factors the court ought to look at. 14 MR. LIROT: They are indeed, Judge, but that's 15 the beginning of the analysis. And Carnival talks 16 about that K.A.W. case. What they say is that if 17 you're going to look at this from the perspective of 18 an appearance of impropriety, you have to look at 19 the context of, and I quote from the case, "If the 20 representation will deprive the other party 21 litigants of an impartial forum." And we don't have 22 that with Mr. Prince. 23 Carnival looked at K.A.W. and basically 24 elaborated on that decision and essentially said 25 that if there's no clear showing -- there has to be Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 106 1 a clear showing made that what this person brings to 2 the table or provides to the -- to the adverse party 3 is of such critical nature that it does provide the 4 unfair advantage. 5 And without some specific showing, as these 6 cases all say, you know, they've got to trigger this 7 evidentiary hearing. There's got to be something 8 more there than, hey, this guy used to work for us 9 and he might have talked to some of our lawyers in 10 trying to do issues that truly, under anybody's 11 assessment, don't have any similarity to this case. 12 Judge, it doesn't just stop at that 13 particular -- 14 THE COURT: I guess if they prevail on this, 15 that kind of does in Mr. Prince, doesn't it? 16 MR. LIROT: It would seem that it might have -- 17 it might serve both those purposes, Judge. 18 THE COURT: It certainly would. This would be 19 one way to make sure that Mr. Prince -- 20 Well, I can't say another judge would follow my 21 ruling as precedent any more than I'm obliged to 22 follow Judge Kovakevitch's, just a federal trial 23 judge, just like I'm a little old state trial judge. 24 I don't know of anything that says that I'm -- I 25 know for a fact that I'm not obliged to follow any Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 107 1 other state trial judge, and I can't imagine some 2 law out there that says I'm obliged to follow some 3 federal trial judge either. Certainly not that's 4 been pointed out to me. 5 MR. LIROT: There is none, Judge. In fact 6 there's case law, and quite specifically, that says 7 the Florida courts can disavow any federal ruling 8 that they want to if they feel that there are more 9 persuasive or more binding arguments from Florida 10 state courts. And I think the case is Miami Health 11 Studios that specifically says that. 12 THE COURT: All right. Thank you very much. 13 Your time's up. 14 MR. LIROT: Thank you, Judge. 15 THE COURT: And this is an interesting -- 16 interesting argument. 17 And I will tell you that I did not have a 18 chance to finish reading all the case law till very 19 early this morning, so that's why I was -- if I'd 20 have known what I wanted to hear from you all 21 earlier I'd have called you, but I figured you 22 didn't want to hear from me at 2:00 this morning. 23 MR. DRESCHER: Your Honor, if I may for one 24 moment -- 25 THE COURT: Yes. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 108 1 MR. DRESCHER: You've been very gracious, and 2 I'd like to ask your indulgence to speak to 3 something I heard, as someone making a first 4 appearance here. Just take a couple minutes of your 5 time, if I may do so, related to the motion. 6 THE COURT: You can go ahead and begin, and if 7 I don't want to hear it, I'm going to tell you 8 that's the end of it. 9 MR. DRESCHER: That's -- 10 THE COURT: I have no idea what you want to 11 talk about. 12 MR. DRESCHER: Well, here's what I'd like to 13 try and put -- 14 THE COURT: If it has something to do with this 15 motion, the answer's no. 16 MR. DRESCHER: Okay. It does -- 17 THE COURT: Because you have a lawyer -- 18 MR. DRESCHER: -- indeed have something to do 19 with the motion, but it comes from the fact that 20 I've represented these parties on this side of the 21 table 15 years come next month. 22 THE COURT: Well -- 23 MR. DRESCHER: And -- and I -- 24 THE COURT: -- Mr. Hertzberg has represented 25 them for how long? Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 109 1 MR. DRESCHER: Oh, even longer. But on the 2 sorts of issues we're talking about here, I dare say 3 I think I've had more experience. 4 And I just want to put one thing in 5 perspective: The burden of proof that's being 6 talked about here does not take into account that it 7 would require, at least from what I'm hearing from 8 Mr. Lirot, for someone on this side of the table to 9 reveal confidences as part of a burden of proof. 10 THE COURT: Counsel, you're arguing this 11 motion. I've given both sides the same amount of 12 time. I have read this, I have read these cases, I 13 am perfectly capable of deciding what the burden of 14 proof is. And if you don't like the ruling that I 15 make or the burden of proof, that's what you get to 16 take the cases to an appellate court. The time is 17 up. 18 MR. DRESCHER: I understand. 19 THE COURT: I gave each side a half an hour. 20 You had a fine lawyer arguing it, and your time is 21 up. 22 MR. DRESCHER: Thank you. 23 THE COURT: All right. 24 MR. HERTZBERG: May I just make one 25 observation -- respond to one aspect of the laches Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 110 1 argument? Just one? 2 THE COURT: Well, what do you need, five 3 minutes or -- 4 MR. HERTZBERG: Yeah. Or less. 5 THE COURT: Well, then whatever you get, he 6 gets. I mean, this is why -- 7 MR. HERTZBERG: I just want to inform the court 8 of one thing that's not in the record. 9 THE COURT: Okay. 10 MR. HERTZBERG: It's in response to, you 11 haven't gone over the dates. 12 We cited the Golden Door case in an argument 13 before Judge Moody on October 8th of 1999, which 14 followed as quickly as we could get into court on 15 the heels of the use by plaintiff of Mr. Prince's 16 affidavit. When he came out and he submitted his 17 affidavit, which we thought was a fact-based 18 affidavit, we made reference in our brief and I 19 mentioned in oral argument on an omnibus motion to 20 strike Mr. Prince on many grounds to Judge Moody the 21 Golden Door case which is the prong of RentClub 22 which deals with the payment -- 23 THE COURT: This was to strike Mr. Prince as a 24 witness, right? 25 MR. HERTZBERG: That's correct. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 111 1 THE COURT: But that happened over and over. 2 MR. HERTZBERG: I just wanted to tell you, your 3 Honor, the two prongs were not pursued on parallel 4 tracks. Because as I indicated during my original 5 argument, the statements by Mr. Dandar on the record 6 triggered the other portion of it -- the summary. 7 And I rest on that argument. 8 But I want you to know, when you were going 9 back on those earlier dates, at a very early point 10 in time we raised the other aspect of the RentClub 11 case, which is subsumed also in the Golden Door 12 case, which is that it is improper and the 13 appearance of impropriety prohibits the payment of a 14 fact witness because of -- 15 THE COURT: To strike -- to strike 16 Mr. Prince -- 17 MR. HERTZBERG: That's correct. 18 THE COURT: -- as a witness. Not to disqualify 19 Mr. Dandar? 20 MR. HERTZBERG: That's correct. 21 THE COURT: All right. 22 MR. HERTZBERG: But -- 23 THE COURT: That's my inquiry: Why didn't you 24 file a motion to disqualify the lawyer more than -- 25 MR. HERTZBERG: Because -- Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 112 1 THE COURT: -- a month before -- 2 MR. HERTZBERG: Your Honor -- 3 THE COURT: -- the trial date? 4 MR. HERTZBERG: Because in the subsequent 5 months and in -- 6 THE COURT: I understand your answer. I really 7 understand your argument quite well. You must think 8 that I didn't hear you. I heard your answer -- 9 MR. HERTZBERG: Okay. 10 THE COURT: -- and I heard your answer loud and 11 clear. It's because you learned the extent of it in 12 the omnibus motion. 13 MR. HERTZBERG: That's correct, your Honor. 14 THE COURT: And that's why you filed it after 15 the omnibus motion. That's your arguments, right? 16 I did hear you, believe me. I don't know what 17 judges you all deal with, but I mean, I hear you, I 18 understand these things, and I understand legal 19 arguments quite well. And you all wouldn't have a 20 clue how I'm going to rule on this, because I don't 21 either. 22 I wanted to hear your arguments. I really 23 wanted you to answer my questions, some of which got 24 answered and of course some of which did not, 25 because counsel elected not to answer them. Now Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 113 1 that I have your arguments, I will take this 2 information and I will rule on it. 3 I also am going to give you all an opportunity, 4 Mr. Dandar -- I'm getting ready to rule on the 5 omnibus order. I don't know what's going on 6 elsewhere and other things that are going on, but I 7 do know that I need to start ruling and start 8 assuming that whatever ruling I make in this case is 9 going to delay this trial. And I'm kind of annoyed 10 I haven't ruled already. 11 Because whoever -- unless I rule against the 12 plaintiff's counsel -- which quite frankly is my 13 inclination at this point in time, and that is why 14 I'm going to give you, Mr. Dandar, the opportunity 15 to respond to me regarding the impropriety, the 16 appearance of impropriety in the omnibus motion. 17 You never did, it's not in your brief, it's not 18 anywhere. I mean, there is that K.A.W. case, 19 there's other cases. The church did refer to the 20 appearance of impropriety. The appearance of 21 impropriety in that motion is huge, huge, absolutely 22 huge. 23 You know, lest we forget the problems that 24 counsel has with the bar telling counsel what to do 25 and the letters that were written and now counsel's Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 114 1 gotten $750,000 from strangers, doesn't have a clue 2 what it's to be used for, just assumes it's to be 3 used for any purpose, personal purpose, put it in a 4 personal bank account -- this is well beyond 5 perjury, but this is a huge problem. Had no idea 6 who to pay it back to, didn't even know where it 7 came from, thought part of it came from somebody 8 called the fat man. 9 And assuming that I am going to rule that you 10 did not commit perjury -- which I've indicated both 11 sides I'm inclined to do -- to say that you did not 12 commit perjury or suborn perjury, I still cannot get 13 around -- I have a difficult time getting around the 14 appearance of impropriety. It's huge. The more I 15 look at it, I started looking at it again, the more 16 it pops its ugly head. 17 Quite frankly, if I had to guess right now, I'd 18 say I'm going to deny this RentClub motion. I'm 19 going to deny the omnibus motion, but I'm going to 20 probably grant that part that deals with the 21 impropriety of counsel. 22 That puts the plaintiff in an odd position of 23 either -- I know you've had lawyers around who have 24 said they can be ready for trial. Back when this 25 first started you said Mr. Lirot can be ready for Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 115 1 trial on the dates scheduled. Even if you were 2 disqualified you would prefer to go forward to 3 trial. That may be still your position. 4 You would frankly have to forego your right to 5 take cert. I'm only telling you this because I 6 never know what lawyers understand and what they 7 don't understand. If you take cert on a motion for 8 disqualification, that is the substantive ruling. 9 It's not like these denial of cert on the false 10 imprisonment, which as I've told you all many times 11 is going to be -- in my opinion be reversed. They 12 didn't bother to take it on cert because they didn't 13 have to. They just rule on that after the trial, 14 after they see what kind of awards are awarded, or 15 if anything is awarded. They like what they see, 16 they'll deny it; if they don't like what they see, 17 they're going to reverse it for a new trial. That's 18 my candid opinion. 19 On disqualification of counsel, the cert is the 20 substantive ruling, because naturally the injury 21 at -- once the court makes the ruling the injury 22 occurs. 23 So my -- my thinking is, that if you -- if you 24 request to take an appeal, you're going to request a 25 stay; if you request a stay, it'll have to be Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 116 1 granted. There's no way an appellate court can get 2 that record and understand that record, read that 3 record, make any sense out of that record by the 4 time this case is set for trial. So it's just 5 almost an automatic stay. 6 Obviously I'm giving you my inclinations, as 7 I'm inclined to do with you guys, especially if the 8 case comes close to trial. 9 If I rule the other way and rule that there is 10 no appearance of impropriety, give me what you think 11 you've got. You all have sort of briefed it, but if 12 there's something else you've got that you want to 13 submit, do it, but by Monday. I'm going to rule. I 14 imagine -- I'm going to rule next week or over 15 Christmas or something on that motion. I want to 16 get rid of it. 17 So whatever you want to get to me, get it to me 18 on Monday on the appearance of impropriety on the 19 omnibus motion. If the church is satisfied that 20 you've already given me all you need to give me, you 21 don't have to. You know, you briefed that issue. 22 Mr. Dandar, you did not. And so if you don't to, 23 you don't have to, you can just ignore it. 24 MR. DANDAR: No. 25 THE COURT: But as I indicated to you all Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 117 1 several weeks ago, I've pretty much made up my mind 2 on everything but that issue, and I'm still -- I'm 3 still fumbling around with that issue. 4 So there you have it. Get me anything else you 5 want to on that by Monday. 6 RentClub, I'll get to it -- 7 As I said, I think the church has huge problems 8 with -- once I got to reading it, with RTC. I think 9 we've got some huge problems with Mr. Prince leaving 10 in 1987. I have no idea what the conflict is. I 11 have no idea what Mr. Prince could tell them that 12 would in any way help their wrongful death case in 13 the Lisa McPherson case. 14 I've already disqualified Mr. Dandar on the 15 counterclaim. It may well be that as to those 16 matters in the counterclaim there's some unfair 17 advantage. I have no idea. That's a totally 18 separate case. 19 Mr. Rosen frankly can't try that either. He's 20 going to be disqualified. I mean, that's just a 21 horse of a different color with a lot of mess in it. 22 But we're talking about the wrongful death 23 case. The wrongful death case, it should have very 24 little religion in it, other than the fact that Lisa 25 McPherson was undergoing a religious introspection Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 118 1 rundown, what that is and why that's not for the 2 jury to decide. However that's explained to the 3 jury. 4 The rest of it is just kind of an old wrongful 5 death case with a lot of experts and a lot doctors 6 and a lot of stuff, and pretty simple matter. 7 So I can't imagine what Mr. Prince could have 8 relayed to counsel that would have been of any help. 9 It certainly wasn't of any help to counsel regarding 10 Mr. Miscavige being the top of the Church of 11 Scientology. Everybody knew that. What the 12 positions were of Mr. Rathburn and some of these 13 other people, everybody knew that. These other 14 lawyers knew that. This wasn't even remotely 15 confidential information. 16 On how to litigate? Well, I don't know, if the 17 idea was to add David Miscavige, that would make the 18 case settle. All the other lawyers knew that too. 19 So I can't envision, in my wildest dreams, what it 20 is that Mr. Prince knew about the Lisa McPherson 21 wrongful death case, whether she died of 22 dehydration, whether she died of a pulmonary 23 embolism. 24 He does assist in some way on an introspection 25 rundown and what it is, and frankly that was part of Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 119 1 his testimony that I don't expect there's a whole 2 lot of dispute about. In other words, he seemed to 3 testify very consistent with Stacy Brooks, who did 4 the same introspection rundown. She was testifying 5 for the church at the time that was discussed. He 6 was testifying for Dandar. And they both seemed to 7 testify exactly the same on those few and rare 8 occasions. 9 So I don't know anything confidential about a 10 religious -- I mean, surely the church cannot 11 suggest that there's something confidential about 12 what you've -- the religious practices of the Church 13 of Scientology is. I've told you all oftentimes you 14 ought to be proud of your religion. Introspection 15 rundown's part of it. Whatever goes on, you -- it 16 just can't, by its very nature, be confidential. I 17 can understand auditing is confidential. But they 18 got the church -- they got the court's permission to 19 allow Mr. Prince to review the auditing folders, 20 therefore there can't be any violation there. So I 21 can't envision what it was. 22 So as I said, I think you're in deep trouble on 23 the RentClub case based on what I perceive the 24 controlling law that I have to follow is. 25 Mr. Dandar, I think you're in deep trouble on the Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 120 1 appearance of impropriety on the omnibus motion. 2 I think I've caught you up-to-date on my 3 thinking. Haven't ruled. Will. Will try to do it 4 quick. I just can't see how, unless, as I said, 5 the -- somebody foregoes their petition for writ of 6 certiorari on one of these qualification motions, 7 this case is going to be tried in January. I'll do 8 the best I can to get the orders out as quickly as I 9 can. 10 I've ruled on the motion to strike. I'm 11 expecting the church's response to what I got from 12 the plaintiff by Thursday. 13 MR. LIEBERMAN: Thursday, yes. 14 THE COURT: And I'm going to expect if either 15 side wants to elucidate further, either factually or 16 legally on the appearance of impropriety that 17 existed in the omnibus motion, you'll get that to 18 me -- what did I say -- by Monday? 19 MR. LIEBERMAN: Yes. 20 THE COURT: By Monday. 21 I think that's all I'm -- I think that's all 22 we've got. We're going to all go away and celebrate 23 our holidays in whatever fashion we celebrate the 24 holidays, if we haven't already, and I'll see you 25 all after the first of the year. Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 121 1 Thank you. We're in recess. 2 MR. HERTZBERG: Thank you, Judge. 3 MR. LIEBERMAN: Your Honor, does that mean 4 we're not going to -- we're not going to have the 5 hearing on the 30th, or put that off? 6 THE COURT: Oh, yeah. Is that the one the 7 30th -- 8 MR. LIEBERMAN: Yeah. 9 THE COURT: I was thinking before Christmas. 10 MR. DANDAR: Judge, we haven't received any of 11 the amicus briefs. 12 THE COURT: Yeah, where are the amicus briefs? 13 MR. LIEBERMAN: They should be in your 14 Honor's -- they should be delivered today. 15 THE COURT: Today? 16 MR. LIEBERMAN: Yeah. The one from the Becket 17 Club (phonetic) was mailed out yesterday, and the 18 one from the coalition, including the National 19 Council of Churches. 20 THE COURT: Okay. 21 MR. LIEBERMAN: These were mailed out yesterday 22 or to be mailed out. 23 THE COURT: Do me a favor, Mr. Dandar. If it's 24 a day late, don't bother to file a motion to strike. 25 Do me a favor, would you? Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 122 1 MR. DANDAR: It was due two days ago, but -- 2 THE COURT: Well, don't file a motion to strike 3 if it's two days late. 4 MR. DANDAR: All right. 5 THE COURT: Because the truth of the matter is 6 I'm going to read it before I can hear your motion. 7 MR. DANDAR: I can't wait to read it. 8 THE COURT: Okay. I'll see you all. Everybody 9 have a nice holiday. 10 MR. LIROT: Same to you, Judge. 11 THE COURT: We'll see you on the 30th. 12 MR. DANDAR: Yes. 13 14 15 16 17 18 19 20 21 22 23 24 25 Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 123 1 2 REPORTER'S CERTIFICATE 3 4 STATE OF FLORIDA ) 5 COUNTY OF PINELLAS ) 6 I, Donna M. Kanabay, RMR, CRR, certify that I was authorized to and did stenographically report the 7 proceedings herein, and that the transcript is a true and complete record of my stenographic notes. 8 I further certify that I am not a relative, 9 employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or 10 counsel connected with the action, nor am I financially interested in the action. 11 12 WITNESS my hand and official seal this 19th day of December, 13 2002. 14 15 ______________________________ DONNA M. KANABAY, RMR, CRR 16 17 18 19 20 21 22 23 24 25 Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500