Date: Wed, 29 Aug 2001 13:45:22 -0400
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CASE No.: 00-5682-CI-11 DIVISION: 11 ESTATE OF McPHERSON, Plaintiff vs SCIENTOLOGY, et al.

Defendants.

__________________________________

MEMORANDUM IN SUPPORT OF NONPARTIES' MOTIONS FOR PROTECTIVE ORDER, et al. and IN OPPOSITION TO SCIENTOLOGY'S MOTION TO COMPEL


Summary Scientology has previously deposed the LMT, Theresa Summers, and Jesse Prince.

Scientology has not sought leave of court to re-depose these persons, and the governing rules do not contemplate serial depositions of persons previously deposed. In seeking to re-depose the LMT, Ms. Summers, and Mr. Prince, Scientology has made demands whichare far beyond the proper scope of discovery, and which if enforced would violate constitutional privileges of privacy, free association, and free speech. The LMT has produced all materials previously ordered by the Court. The claims of Scientology that the LMT or Mr. Minton control the litigation or stand to profit from are, bluntly, false, and would not in any event support the sort of discovery Scientology seeks. The demands of Scientology are collateral to this litigation and should not be countenanced.

ooOoo Before the Court are Scientology's Motion to Compel et al. and various motions of for protective order brought on behalf of those targeted in Scientology's latest round of demands.

Certain factual corrections are in order at this point. First, Robert Minton has no financial interest in this litigation, other than the hope that the funds he advanced to allow the Estate to pursue the action will be repaid in the event a recovery is made. [Exhibit 1, Affidavit of Robert Minton; Exhibit 2, Affidavit of Dell Liebreich]. Robert Minton does not have and never has had any control over the course of this litigation. [Exhibit 1]. The Estate is under no obligation to pay over any portion of an eventual recovery in this action to Mr. Minton or to the LMT. [Exhibit 1] Stacy Brooks' only involvement in this action has been as a consultant to Plaintiff's counsel, and in the filing of affidavits in support of a matter long since disposed of. These affidavits were not even drafted for this action; they were reaffirmations of affidavits drafted and filed in earlier Scientology litigation not involving Plaintiff in this action. [See Brooks Affidavits, previously filed.] Jesse Prince was formerly a high-ranking Scientology staffer who was retained by Plaintiff as an expert on Scientology practices and procedures. He has recently withdrawn as an expert witness. The factual recitation set forth in Court's prior order on discovery from the LMT "suffers the deficiency of overreaching"

Fernandez vs McKenney, 776 So.2d 1118 (Fla. 5th DCA 2001) that often occurs when counsel draft orders: the order is one drafted by Scientology's lawyers, and not by the Court based on any evidence presented (or even extant).

After extensive litigation, the Court ordered responses to the duces tecum demands made by Scientology . Because the orders in question were not final appealable orders or appealable nonfinal orders under Rule 9.130 Fla.R.App.Pro., the matter was taken to the District Court of Appeal on a petition for writ of certiorari. The writ was denied without comment. Such a denial is not a ruling on the merits and does not establish the law of the case. Bevan vs Wanicka, 505 So.2d 1116 (Fla. 2d DCA 1987); Casey-Goldsmith vs Goldsmith 735 So.2d 610 (Fla. 5th DCA 1999). The matter has therefore returned to this Court.

1. The LMT has complied with the prior orders of the Court regarding production and disclosure. Among the production demands made by Scientology was one for all videotaped statements made by witnesses. The LMT initially produced nothing in response to this demand, for the straightforward reason that it possessed no statements of any witness which had anything to do with the subject matter of the suit. After some further gyrations, the LMT produced videotapes of statements of Dell Leibreich, Ann Carlson, and Jesse Prince. While these statements had nothing to do with the facts of the case (none of those persons being a witness to the detention or death of Plaintiff's decedent), they were made available to Scientology. In compliance with a prior order of the Court, Robert Minton certified that the Trust had no other tapes of statements of any witness concerning the subject matter of the action. [Exhibit 3, Custodian Affidavits of Robert Minton.] In the most recent deposition session, Ms. Brooks testified as representative of the Trust that all the Trust's videotapes were on the Trust website and therefore readily available to Scientology. Going beyond that, she delivered at that deposition copies of those videos.

Scientolgy's speculation and protestations that employees of the Trust have been seen videotaping (by whom is not said, and no cognizable evidence is offered on that point) is unavailing on this point. The LMT has produced its videos in their entirety. There is no evidence that the Trust has videos which meet either the request of Scientology or the order of the Court which were not produced.

Scientology also demanded production of documents reflecting payments by the LMT to witnesses. At the time of the initial depositions of the LMT, the only such payment was a minimal expense reimbursement to Jesse Prince, who was at that time an expert witness for Plaintiff. Such evidence of that payment as was then available was produced. [See LMT deposition transcripts] Scientology then began a program (which has persisted) of adding persons to its witness for the sole purpose of using the discovery process to gather intelligence on them.

These persons include Jeff Jacobsen, Mark Bunker, Rod Keller, and Grady Ward, none of whom has any personal knowledge of the facts of the case. Not one of these persons knew Lisa McPherson, was aware of her death in Scientology headquarters at the time it transpired, or is a witness to any statement of a witness to the facts of the case. [See, e.g., Affidavits of Keller and Ward, Exhibits 4 and 5]. Nonetheless, in compliance with the order of the Court, the LMT produced at its most recent deposition its entire payroll records, including canceled payroll checks and payroll statements for all listed witnesses to whom any payment has been made by the Trust, whether legitimate witnesses or not, together with canceled checks reflecting non-payroll reimbursements to those persons. Stacy Brooks, as the representative of the Trust, testified at that most recent deposition that all payments to listed witnesses are reflected in the documents furnished through the time of the deposition, and that there are no other records of such payments. Likewise, the requested records of payments for the defense of Jesse Prince and payments to Robert Minton were produced in the form of canceled checks.

This colloquy occurred:

SCIENTOLOGY COUNSEL: Now, is what you've just given me, do you represent this to be the, if you will, and complete compliance with the court's order to produce all financial records regarding the payment to any person identified at any time as a witness in this case?

MS. BROOKS: Yes.

SCIENTOLOGY COUNSEL: You represent there are no checks, no amounts of money that were given to any other person who was ever identified as a witness in this case?

MS. BROOKS: That's correct.

* * * SCIENTOLOGY COUNSEL: Right I understood what you said, but why didn't you produce what's in the Quickbooks program as responsive to the court's orders?

MS. BROOKS: Again I did. Every single payment to a witness that is in the Quickbooks program is here today. That's what I did.

Scientology's speculation about the existence of other records and their claim that the production request included the entirety of the LMT banking and other financial records is illogical and is a gross example of overreaching. Bank records and spreadsheets may well include or refer to records of payments to witnesses, but they are not records of such payments as that expression would normally be understood. A person asked to produce records of payments to his automobile mechanic would not produce his household ledger or his bank statements, but rather materials analogous to those produced by the Trust:

bills and canceled checks.
2. The additional materials and information sought by Scientology are outside the scope of discovery. While evidence need not be admissible at trial in order to be discoverable, it must be relevant to the to the subject matter of the pending action, and at a minimum must appear reasonably calculated to lead to the discovery of admissible evidence. Rule 1.280(b)(1), Fla.R.Civ.P. The scope of discovery under this rubric is not limitless. "[O]nly matters relevant to the subject matter of the litigation are discoverable. Graphic Assoc., Inc. vs Riviana Rest. Corp., 461 So.2d 1011 (Fla. 4th DCA 1984). "Relevant evidence is evidence tending to prove or disprove a material fact." Section 90.401, Fla.

Stat.

Materiality in this context is determined by reference to the operative pleadings in the action. "Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings . . . ." Zabner vs Howard Johnson's Inc., 227 So.2d 543 (Fla 4th DCA 1968) [e.s.]; accord, Graphic Assoc., Inc. vs Riviana Rest. Corp., 461 So.2d 1011 (Fla. 4th DCA 1984) "Discovery in a civil case must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence" and "... must relate to the issues involved in the litigation, as framed in all the pleadings." Allstate Ins. Co. vs Langston, 655 So.2d 91 (Fla. 1995) [e.s.] "[I]nformation sought in discovery must relate to the issues involved in the litigation, as framed in all the pleadings."

Mulholland & Assoc. vs Polverari, 698 So.2d 1269 (Fla. 2d DCA 1997) [e.s.] In entering a protective order requested by Robert Minton, the Court defined the scope of discovery to include "payments to, pressures upon, or relevant statements of persons who are witnesses to the facts of this case, or who have been identified by a party as its own expert witness, or payments to Plaintiff or Plaintiff's counsel," and specifically excluded from examination "dealings with or knowledge concerning persons who have not been identified by a party as his own expert witness, and who do not have knowledge of the facts described in the most recent complaint filed herein." [Exhibit 6, Order of May 23, 2000] That ruling neatly tracks the definition of "witness" as that word is circumscribed by statute. None of the persons named has any personal knowledge of the facts surrounding the detention and death of Plaintiff's decedent.

Demands for discovery concerning persons who do not that meet the definition laid out in that order should be dismissed out of hand; they constitute fishing outside the pond create by Rule 1.280, Fla. R. Civ. P.

Scientology claims entitlement to various aspects of discovery pursuant to its counterclaim for abuse of process. Plaintiff's motion to dismiss that counterclaim remains pending as of this writing, but whether the counterclaim survives or not, none of the persons concerned in this matter possesses any information relevant to such a claim. Scientology's syllogism appears to be that, because these persons are affiliated with the LMT in one way or another (or have sought assistance from the Trust), and because the LMT is affiliated with Robert Minton, who has advanced cost money to Plaintiff, the persons in question will have information concerning the conspiratorial machinations purportedly directed against Scientology. The problem with this line of argument is that such information, if it existed, is wholly irrelevant to a claim of Abuse of Process.

It has been expressly recognized that "[t]he maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process." Cazares vs Church of Scientology, 444 So.2d 442, 444 (Fla. 5th DCA 1983). "There is no abuse of process . . . when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose. * * * Even a pure spite motive is not sufficient where process is used only to accomplish its intended purpose. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required;

and there is no liability where the defendant [in an abuse of process action] has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process, itself, which constitutes the tort." Bothmann vs Harrington, 458 So.2d 1163, 1169 and fn. 8 (Fla. 3d DCA 1984). [e.s.] Although "there may have been an ulterior motive of harassment in the filing . . . . An ulterior motive in itself is not sufficient. There must be an improper willful act during the course of the proceedings to constitute an abuse of process." Peckins vs Kaye, 443 So.2d 1025 (Fla. 2d DCA 1983).

Allegations that a "complaint had been filed and summons issued for a multitude of improper purposes -- to bankrupt [defendant]; to coerce him to pay monies to [plaintiff] which are legally beyond the latter's reach; to coerce settlement of [defendant's] debt to [plaintiff]; to coerce concessions from [defendant] and [plaintiff's] competitor, Jartran, Inc.; to bankrupt Jartran, Inc.; and to 'get back at [defendant]' for leaving [plaintiff's] employment" is insufficient to state a cause of action for abuse of process in the absence of an allegation of "an act which constituted misuse of the process after it was issued." Mere service of the process after issuance is not sufficient to support such an action. McMurray vs U-Haul Co., 425 So.2d 1208 (Fla. 4th DCA 1983) Therefore, any information Scientology may claim to expect concerning an intent by Plaintiff or others to destroy or discredit Scientology is not at all relevant to the abuse of process claim, and is obviously irrelevant to the wrongful death claim. The information Scientology seeks regarding complaints made by and to the LMT, its apparent intent to seek the entirety of the LMT's financial records, and the correspondence demands it has made, are well outside the scope of discovery as defined by rule and decisional law.

3. Apart from issues of relevance, much of the information sought by Scientology is privileged. Scientology seeks disclosure of a broad category of materials which, while unrelated to the subject matter of the complaint or the counterclaim, are also privileged under various provisions of law. These materials include the previously mentioned demands for information concerning complaints made by and to the LMT (which would necessarily include identification of dissident Scientologists and other victims of Scientology who have in some way affiliated themselves with the Trust). "[D]iscovery of certain kinds of information 'may reasonably cause material injury of an irreparable nature.' [cit. om.] This includes 'cat out of the bag' material that could be used to injure another person or party outside the context of the litigation .

. . ." Allstate Ins. Co. vs Langston, 655 So.2d 91 (Fla. 1995). The information sought by Scientology is private information having no relevance to the issues raised on the pleadings below. Scientology, has a horrific history and policy of terrorizing, harassing, and attempting to destroy those who oppose it.

Locally, an officer of the Clearwater Police Department documented under the fact that enemies and detractors of Scientology are subject to harassment and intimidation at the hands of Scientology operatives. [Exhibit 7, Affidavit of Paul Maser] In 1984, the California Superior Court for Los Angeles County found that Scientology "over the years with its 'Fair Game' doctrine has harassed and abused those persons not in the Church whom it perceives as enemies. The organization clearly is schizophrenic and paranoid, and the bizarre combination seems to be a reflection of its founder...." Church of Scientology of California vs Gerald Armstrong, Case No. C 420153 (Memorandum of Intended Decision, June 20, 1984) Breckenridge, J. Scientology "has a practice of harassing its 'suppressors.'" "In addition, Church leaders have been found liable for malicious prosecution and convicted of theft of government documents." Scientology has a "policy and history of seeking retribution against its perceived enemies." Church of Scientology vs Department of State, 493 F.Supp. 418 (D.C. D.C. 1980). See also Allard vs Church of Scientology, 58 Cal. App. 3d 439 (Cal. 2d. Dist. 1976). Scientology has a "documented history of vexatious behavior" and abuses the legal system "by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter." RTC vs Scott, Nos. 94-55781 & No.

94-55920; 1996 U.S. App. LEXIS 8954 (9th Cir. 1996).

The requirement of disclosure of communications and financial transactions which are outside the proper scope of discovery implicates First Amendment considerations as well. Financial support of what is essentially a dissent movement devoted to public discourse is a protected First Amendment activity which may well be chilled by the requirement of disclosure of such activity to the target entity. The Lisa McPherson Trust is such an organization, dedicated to opposing the abuses of Scientology, (which have been documented beyond peradventure in the authorities cited above) and to assisting Scientology's victims.

It is settled that advocacy entities have a First Amendment privilege which applies in the context of civil discovery. Wilkinson vs FBI, 111 F.R.D. 432, 436 (N.D. Ca. 1986) Before it can require disclosure of information directly bearing on the identities of associates of an advocacy organization, the court must "apply a balancing test to the dispute at issue, essentially requiring both a heightened degree of relevance to the subject matter of the suit and a showing by the party seeking discovery that it has made reasonable, unsuccessful attempts to obtain the information elsewhere." Id. Otherwise stated, the Court must (1) ascertain whether the precise material sought by discovery is truly "relevant" to the gravaman [sic] of the complaint; (2) if "relevant", the court must balance the rights and interests of each litigant, the particular circumstances of the parties to the controversy, and the public interest in overriding the private litigants' representations as to resultant injury or to unavoidable need; and (3) a conclusion that the discovery request, as framed, is the means least inclusive and intrusive for gathering the information to which the party has been deemed entitled.

Adolph Coors Co. vs Wallace, 570 F.Supp. 202 (N.D. Ca. 1983). The reason for this heightened scrutiny is that "civil lawsuits could be misused as coercive devices to cripple, or subdue, vocal opponents." No more pointed reference to the circumstances faced by the LMT in this case could have been made had the Coors court had Scientology and the LMT in mind. Scientology's attempted distinction based on the LMT's organization as a for-profit entity is without meaning. No such distinction appears in the authorities, and it is a matter of record that "In order to protect the sources of our funds, it is a for-profit corporation. But it certainly isn't making any profit. It's supported by donations only." Deposition of Stacy Brooks.

Article 1, Section 23 of the Constitution of Florida provides that "every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein." Subpoenas and court orders requiring discovery constitute state action sufficient to invoke application of the protections of Article 1, Section 23. Florida Blood Service, Inc., vs Rasmussen, 467 So.2d 798 (Fla. 3d DCA 1985). "The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words 'unreasonable' or 'unwarranted' before the phrase 'governmental intrusion' in order to make the privacy right as strong as possible." Beagle vs Beagle, 678 So. 2d 1271 (Fla.1996) The relevancy requirements of Rule 1.280(b)(1), Fla.R.Civ.P. are of constitutional dimension. Calderbank vs Cazares, 435 So.2d 377 (Fla. 5th DCA 1983). Because discovery implicates privacy rights under the Florida Constitution, and those rights are more expansive than the privacy rights afforded under the federal Constitution, the balancing test under Coors and Wilkinson is, if anything, too lax an analysis to apply to the protections claimed by the LMTon behalf of those natural persons who would be injured by the requested disclosure. In any event, that test cannot be met on Scientology's claim for internal documents, financial records, and complaints to government agencies in this case. Internal documents which do not bear directly on the issues raised on the pleadings are clearly beyond the reach of discovery under the standards set forth above; they are not precisely or actually relevant to the issues at hand, by definition. If complaints to government agencies are not protected by a governmental privilege, they are available to Scientology through Freedom of Information Act or state open records requests; if they are not available through those avenues, they are not properly discoverable in any event. More to the point, such a demand made of the LMT would require the disclosure of identities of persons who have sought the assistance of the Trust, and would subject them to the sort of attacks and abuse documented above, and contemplated by the Coors court as the reason for the protections it afforded.

The LMT has not and does not concede the relevance of payroll and reimbursement records of pretended witnesses who are employed by the LMT, but has produced those records. Demands for production of additional records are purely abusive and serve no purpose. Financial records are private, Winfield vs Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla. 1985), and Ms. Brooks testified that all payments which were the subject of Scientology's inquiry were documented by the canceled checks she delivered. Additional probing is simply gratuitous, and goes well beyond legal limits of privacy, and social limits of decency.

Requiring a person in the position of the LMT to open its books and all its records to perusal by Scientology would obviously have a chilling effect on their activities and on the activities of persons about whom information is sought, and therefore should not be mandated absent some compelling need. No such need has been shown.

4. The successive depositions sought by Scientology are not contemplated by the applicable rule, and are not sought for any proper purpose. Scientology seeks redeposition of the LMT (by expanding its document request beyond that contemplated in its earlier subpoenas and the orders of the Court), of Teresa Summers, and of Jeff Jacobsen.

Rule 1.310, Fla.R.Civ.P. provides that a party "may take the testimony of any person, including a party, by deposition upon oral examination." The grammar of the rule in its entirety indicates that only one deposition is contemplated.

Beyond that, as to Ms. Summers, Scientology itself concedes that she knows nothing of the case; the only purpose for a second deposition is to investigate the activities of the LMT and Ms. Summers, neither of whom is a party or witness to the action. Even if it assumed that Ms. Summers is working diligently to expose every misdeed of Scientology and to have it held accountable for every injustice and falsehood it has perpetrated, that information is not subject to discovery in this case, because it is irrelevant.

The suggestion that Ms. Summers and/or others are subject to redeposition in order to allow Scientology to investigate the status of record retention, record destruction (which is an entirely lawful and proper activity; see, e.g.

Chapter 119, Fla. Stat.) and the accuracy of Ms. Brooks' testimony as corporate representative on those issues is not contemplated by law or rule; it is the target organization which has the right to designate the responding witness.

Ms. Brooks testified fully concerning those matters. Scientology is not entitled to make its own designation of a responding witness on behalf of the Trust, which is what it seeks to do - at least as cover for its actual intended plenary investigation of the activities of the Trust.

Conclusion Discovery is not limitless in scope or duration, though plainly the Defendant intends to make it so. We are before the Court on matters of profound interest to Scientology, but which are in the first place collateral to the issue of Scientology's responsibility for the death of Lisa McPherson and the issue of Plaintiff's alleged "act which constituted misuse of . . . process after it was issued," the substance of a claim of abuse of process under McMurray vs U-Haul Co., supra. The real issue is whether the Court will require the parties to press ahead with discovery which will help to resolve the issue to be tried, or whether the Court will countenance yet another effort by Scientology to abuse the legal system "by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter." RTC vs Scott, Nos. 94-55781 & No. 94-55920; 1996 U.S. App. LEXIS 8954 (9th Cir. 1996).

______________________________ JOHN M. MERRETT, ESQUIRE 11250 Old St. Augustine Road Jacksonville, Florida 32257 Telephone: 904.388.8891 Fla. Bar No. 0742848 I hereby certify that a two copies of the foregoing have been furnished to Kendrick Moxon, Esq, by hand this 29th day of August, 2001, and that copies will be furnished by mail to other counsel of record by facsimile or mail on the 29th or 30th of August, 2001.

____________________________ John M. Merrett

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