Public document. If you are in LA next Thursday morning, this might be interesting to watch. My comments in []. footnotes first 1 Furthermore, with regard to the three other cases in which defendant represented Henson, all were completed before Henson retained defendant in his copyright case. Specifically, the final dispositions of these cases are as follows: Barton v. Henson - March 17, 1998; People v. Henson - March 26, 1998; Hoden v. Henson - February 20, 1998. (Declaration of Ava M. Paquette ("Paquette Dec"), ¶ 21.) 2 Berrys obsession with attacking the Church of Scientology and attorney Kendrick Moxon was conceded by him with braggadocio when he taped an interview with a person he solicited for legal representation who was already represented by Mr. Moxon. When asked his agenda for seeking the representation, he replied: "My agenda is to bite Scientology in the butt and to cause it as much grief as possible. Anything that is a black eye for Moxon is a good deed as far as I am concerned." (Ex. N.) 3 Plaintiff notes his position that Mr. Cipriano and his testimony are utterly irrelevant to any issue in this case, and plaintiff will be filing a motion to strike that testimony. However, it is addressed here in order to provide background for the Court. 4 At Ciprianos deposition, counsel for the parties agreed to have the deposition sealed until such time as plaintiff moved to strike it, which will be filed shortly. If the Court desires, plaintiffs counsel can lodge it with the Court under seal. (Paquette Dec., ¶ 24.) 5 Berrys refusal to honor this commitment is unconscionable. When plaintiff deposed one of Berrys former partners, Stephen Lewis, and Mr. Lewis gave considerable negative testimony concerning Mr. Berry, Ms. Matthai insisted that the transcript be sealed and not used for any purpose other than this litigation. Plaintiffs counsel made that agreement, in good faith, reminding Ms. Matthai that it has been her client, Graham Berry, who has a proclivity to post everything on the Internet. Plaintiff has fully honored his agreement, but clearly the admonition concerning defendant was well warranted. (Paquette Dec., ¶ 23.) 6 The Court should be informed that he made the same defense to his posting of the sealed transcript in his copyright case. As discussed, supra, Hensons similar "mistake" in the copyright case against him, in which he was represented by Berry, resulted in a contempt sanction. (Ex. C.) 7 In any event, Mr. Moxon is engaged in matters in other litigation on the east coast and will not be attending Mr. Hensons deposition, so Henson and Berry will be unable to direct their abuse at Mr. Moxon. 8 Despite Mr. Berrys admissions that he represented Mr. Hurtado "pro per," and he had sex with Mr. Hurtado during the representation, and his assertions of Mr. Hurtados lack of intelligence, Berry has insisted that he will not settle this case for "even a dime," demanding that this Court try the case.
Ava M. Paquette, SBN 165375 Helena K. Kobrin, SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd., Ste. 900 Los Angeles, CA 90010 Telephone: (213) 487-4468 Attorneys for Plaintiff MICHAEL HURTADO
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES MICHAEL HURTADO, Plaintiff, vs. GRAHAM E. BERRY, Defendant. ) )Case No. BC 208227 Honorable Ray L. Hart
PLAINTIFFS OPPOSITION TO MOTIONS BY DEFENDANT AND H. KEITH HENSON TO QUASH OR FOR A PROTECTIVE ORDER RE DEPOSITION OF NON-PARTY KEITH HENSON; DECLARATIONS OF AVA M. PAQUETTE AND HELENA K. KOBRIN IN SUPPORT THEREOF Date: September 14, 2000
Time: 9:00 a.m. Dept: 10 I. INTRODUCTION Defendant and Mr. Hensons characterizations of this case are misguided. This case is about Graham Berry, a fifty year old attorneys abuse of the attorney/client relationship by purposely taking advantage of the plaintiff, Michael Hurtado, an emotionally and intellectually challenged young man in minor trouble with the law, tricking him into believing that only through his representation could plaintiff be saved from what defendant described to plaintiff as horrible and dire consequences so that he could force plaintiff to exchange defendants legal services for sex. Defendants sole purpose in doing so was to satisfy his own prurient sexual interests with no thought whatsoever for his client or his clients well-being. Indeed, what this case and this court are not here to provide, is a forum for Mr. Berrys anti-religious invective and intolerance. This case is not about Mr. Berrys dispute with the Church of Scientology, yet, he persistently seeks to prevent discovery of relevant evidence by continuing on an illogical pattern of attacking a minority religion to somehow justify his own conduct and to prevent discovery. The Scientology religion has nothing to do with this case and nothing to do with Mr. Hurtado, yet Mr. Berry inserts this subject into almost every aspect of his papers and motions. Unfortunately, this is not the first case where Mr. Berry has pursued this modus operandi; in fact, he has been repeatedly sanctioned and admonished by state and federal courts alike for this very practice, including attacks on counsel such as he makes here. Contrary to Mr. Berrys motion, the deposition of H. Keith Henson ("Henson") was noticed solely because Henson has relevant evidence of matters which are at issue in this case: 1. Henson, a former client of Mr. Berry who long ago swore that Berry no longer represented him, filed a pro per motion to vacate the judgment against him in a case where Mr. Berry represented him at trial, asserting that his lawyers representation of him was below the standard of care required. This occurred during precisely the same time period that Mr. Berry was representing plaintiff here. Thus, under the discovery standards, such information is relevant and likely to lead to the discovery of admissible evidence in the issues in this action and as such, is discoverable. Moreover, as shown below, no privilege attaches to such evidence because it has been waived by both Henson and Mr. Berry. 2. Henson is a personal friend of Mr. Berry who admittedly has engaged in numerous written and oral communications with him over the past two years regarding this case and other matters. Many of those matters have no relationship to any representation by Mr. Berry of Henson. And even with respect to those that originated in an attorney-client relationship, no work product claim can attach to Hensons knowledge, as Berry no longer practices law, and Henson is not a lawyer. 3. Mr. Berry violated a stipulation of the parties by disclosing to Henson information from a sealed deposition taken in this case, part of which Henson posted publicly to the Internet. This is a serious matter, because the deposition at issue was wholly irrelevant to this case, plaintiff formally demanded the deposition be suspended to seek a protective order, and Mr. Berrys counsel refused. She thereafter abused the discovery process by taking a lengthy deposition for use in Mr. Berrys bankruptcy action after the close of discovery therein but not for legitimate use in this case. Mr. Berrys loud protestations of "abuse" of discovery are wholly unsupported. He and his counsel make such protestations for the purpose of destroying this Courts time and converting what should be a simple deposition into hours of needless bickering, an effect they have created using a $1 million dollar insurance defense fund to raise every possible obstacle to simple discovery. Defendant has taken 14 depositions in this case, which includes plaintiffs 80-year old grandmother and plaintiffs uncles ex-common law wife, among others. Plaintiff, on the other hand, has taken a mere five depositions. It is clear that defendant and his counsel are utilizing insurance defense funding to attempt to overwhelm the plaintiff with frivolous and expensive actions, objecting to all discovery plaintiff attempts to take. This motion is simply more of the same. Both Hensons and defendants motions should be denied and the deposition should go forward. II. STATEMENT OF FACTS A. Background History Of Discovery Thus Far. Contrary to defendants misrepresentations to the Court, it has been defendant and his counsel that have taken the discovery in this case far beyond what is mandated under the Discovery Act. As an example of the improper extremes to which Mr. Berry has gone in conducting discovery in this case, just recently, his counsel deposed plaintiffs fathers cardiologist, who testified that plaintiffs father was on the heart transplant list at UCLA Medical Center, that he would adamantly oppose defendant forcing plaintiffs father into deposition, and that any such stress might cause him to have a fatal heart attack. In response, Mr. Berrys counsel repeatedly attempted to obtain the doctors agreement that the deposition could be taken in a hospital room, with resuscitation devices ready and the doctor standing by, in the event plaintiffs father were to suffer a heart attack during the deposition! (Ex. A.) As another example of discovery excesses by Mr. Berry, the Court should take judicial notice of the motion that Mr. Berry brought for the Court to rule concerning custody of the "Cipriano Documents," which this Court clearly had no jurisdiction to adjudicate. B. Background Regarding H. Keith Henson. Beyond his posting of sealed information related to this case to the Internet, Henson is a material witness here for other reasons. In March 1996, Henson posted an unpublished, copyrighted Scientology work on the Internet. As a result, a copyright infringement action was brought against him, entitled Religious Technology Center v. Henson, Case No. C-96-20271 (N.D. Cal.). Henson was pro se through most of the litigation, but he engaged Mr. Berry to represent him at the trial and in certain pretrial matters in late April and May 1998. At the conclusion of the trial, the jury found Henson liable for willful copyright infringement and awarded $75,000 in statutory damages, believed to be the largest judgment for a single copyright infringement in the history of the United States Copyright Act. (Ex. B.) Hensons posting of sealed litigation information on the Internet from this case, is not the first time he has engaged in such an act. On May 12, 1998, the same day the jury returned its verdict against Henson in RTC v. Henson, Henson posted to the Internet a sealed trial transcript. Shortly thereafter, the District Court issued an OSC as to why Henson should not be held in contempt. Mr. Berry again represented Henson at his civil contempt trial. Henson was held in contempt and was sanctioned for his posting. At the conclusion of the contempt trial on June 19, 1998, referring to the arguments made by both Henson and Mr. Berry, the District Court stated: "I also find it very disturbing that the defense can attempt to shift the blame for the posting onto either the court reporter or the Court or onto [the plaintiff], because I just dont think that any reasonable person looking at the circumstances would view it that way." (Ex. C.) On July 10, 1998, Henson filed a Substitution of Attorney in which he stated "[M]r. Graham Berry is no longer representing defendant in this matter." (Ex. D.)1 [But I never said he was not giving me legal advice on other matters.] The relationship between Henson and Mr. Berry has hardly been limited to their attorney-client relationship, as proven by the e-mails between them, which Henson has filed with his motion. Clearly, they have engaged in numerous communications that were never remotely within the attorney-client relationship. C. Background to Hensons Involvement in this Lawsuit Requiring His Deposition. On November 1, 1999, the deposition of Robert Cipriano was noticed by Mr. Berry. Mr. Cipriano was sued by Berry in 1998 for defamation, arising out of a 1994 declaration in which Cipriano detailed Berrys conduct in preying upon teenage boys and drug abuse. Berry v. Cipriano, et al., Case No. BC 184355 (L.A.C.S.C.). Present counsel for the plaintiff, Moxon & Kobrin, represented Cipriano and also represented another defendant, Isadore Chait, in a consolidated defamation action filed by Berry. Berry v. Barton, Case No. BC 186168 (L.A.C.S.C.). While hardly any litigation occurred involving Cipriano, there was considerable litigation in the Berry v. Barton case arising out of Berrys discovery abuse, and the case against Isadore Chait was dismissed as a discovery sanction against Berry (Ex. E), following several other discovery sanctions against him. (Ex. F, p. 18; Ex. G, p. 78.) Thereafter, Berry dismissed Cipriano and all other defendants. (Ex. H.) A motion to have Berry declared a vexatious litigant was filed by several of the defendants (excluding Cipriano) and a finding made that Berry was a vexatious litigant, under three independent grounds. (Ex. I.) At the hearing on the motion, the court stated: With all the due respect, Sir, I have to sadly state that if there is such a thing on Gods green earth as a vexatious litigant you, Sir, sadly, are it. (Ex. J.) During the pendency of the Berry v. Barton and Berry v. Cipriano cases, Mr. Berry filed Pattinson v. Church of Scientology International, et al., Case No. CV-98-3985 CAS (Shx), allegedly on behalf of Michael Pattinson. The 312-page First Amended Complaint sought damages against several Scientology churches and ecclesiastical officials for a variety of purported federal and state claims. For reasons still known only to Pattinson and his counsel, Berry also named as defendants attorney Kendrick Moxon (as counsel to some Churches of Scientology), as well as President Clinton, the Secretary of State, the Secretary of the Treasury, the National Security Advisor, other past and present federal officials and actor John Travolta. However, Mr. Berry served only Mr. Moxon, forcing Mr. Moxon to litigate the case. After the District Court found the complaint to be "a rambling tale of irrelevancy" (Ex. K), Berry amended the complaint twice. The complaint was ultimately dismissed, and he was sanctioned over $28,000 both under Fed.R.Civ.P. 11 (as a frivolous action) and 28 U.S.C.§ 1927 (for vexatiously multiplying and prolonging federal proceedings) for this misconduct against Mr. Moxon. (Exs. L and M.)2 Berry declared bankruptcy and sought to discharge the sanction against him, along with numerous consumer debts. In an adversary action filed to hold the sanction non-dischargeable, Berry asserted the unusual defense that in the Cipriano case, in which he was the plaintiff, he was so distracted by the "discovery abuse" against him (in which only he was sanctioned) and distressed by the purported defamation by Cipriano against Berry, that he was unable to handle the Pattinson case competently. In essence, the "defense" asserted by Berry was that Cipriano could testify that he lied in his 1994 declaration, lied in his 1998 deposition in the Berry v. Cipriano case, and lied in other declarations regarding Berry, but would now tell the "truth," including that Mr. Moxon allegedly knew Cipriano lied. In a further leap of logic which escaped each judge to whom the argument was presented, Berry therefore concluded that he should not have been sanctioned for his various vexatious acts in litigation and his discovery misconduct. Acting pro per, Henson made this identical incomprehensible argument in a motion under Fed.R.Civ.P. 60(b) to vacate the copyright judgment against him on the stated ground that he lost the case because his lawyer, Graham Berry, was so distracted with his pro per cases and the Cipriano allegations that his representation of Henson fell below the standard of care necessary to defend the action. (Ex. O.) Mr. Berry filed a declaration in support of Mr. Hensons Rule 60(b) motion in which he repeated these same representations, i.e., that he lost Mr. Hensons copyright case because his representation of Mr. Henson fell below the appropriate standard of care as a result of the "distraction" to which he was allegedly subjected. (Ex. P.) To accompany his Rule 60(b) motion, Henson also filed the identical "Motion for Instructions" filed by defendant in this case with regard to the Cipriano documents. Both the Rule 60(b) motion and the "Motion for Instructions" were denied by the District Court, and Henson filed an appeal in the Ninth Circuit. Notably, Berry asserted his same "confused and distracted" defense in Pattinson in a Rule 60 motion to vacate Rule 11 sanctions which the Honorable Christina A. Snyder had imposed against Mr. Berry based on a similar scurrilous attack against Kendrick Moxon. The District Court emphatically rejected that defense: "It should further be noted that Berry was declared a vexatious litigant just months ago by a judge of the Los Angeles Superior Court." (Ex. Q.) Nevertheless, through his insurance defense counsel in the instant case, Berry noticed Ciprianos deposition on a new twist of the same illogical theory: that since Cipriano allegedly lied regarding Berry in the defamation cases and his counsel allegedly knew about the false statements, Hurtado must also be lying in this case since he has the same counsel! 3 Prior to the scheduled Cipriano deposition in this case, Cipriano contacted Mr. Moxon on June 16, 2000 and stated that Berry was holding him "hostage," that Berry had forced him to sign a perjurious declaration, and he wanted to escape from Berry. (Ex. R, Cipriano Transcript; Ex. S, Cipriano Dec.) Defendants counsel thereafter canceled the deposition. Despite this odd event, defendant re-served Cipriano and insisted that his deposition be taken on August 7, 2000. At the deposition defense counsel, Edith Matthai, made it clear that she was questioning Cipriano not about any legitimate issue in this case, but rather to support the arguments Berry was making in the bankruptcy court and arguments being made by Henson in the motion he had filed in federal court.4 Mr. Moxon therefore exercised his right under C.C.P. §2025(n) to suspend the deposition to bring a motion for protective order; however, Ms. Matthai refused, and continued with irrelevant questions seeking to invade the attorney-client privilege between Cipriano and Mr. Moxon. (Id.) Although Ms. Matthai refused to honor the section 2025(n) suspension by Mr. Moxon, she agreed, in Berrys presence and with his consent and input, that the deposition would be sealed for all purposes pending a motion to strike or any other relief. (Id.) Nevertheless, the next day, Henson made a lengthy public posting to the Internet, describing alleged details of the Cipriano deposition from Berrys twisted perspective, and making various disgusting comments regarding plaintiffs counsel. Henson compounded this by filing the posting as exhibit A to his motion. Plaintiffs counsel contacted Ms. Matthai to find out why the stipulation had been breached in this fashion, at which time she claimed no knowledge of the breach.5 Henson thereafter publicly acknowledged on the Internet that he knew that the deposition was sealed, but that his posting of it was a "mistake."6 Indeed, despite his knowledge of his "mistake," Henson failed to file the same posting in support of his motion, under seal. Plaintiff requests it be placed under seal until such time as plaintiffs motion to strike the Cipriano deposition is heard. D. Plaintiffs Effort To Meet And Confer. As the meet and confer and subsequent motions filed here illustrate, this case is being used by Berry and his friend Henson to attack the Scientology religion and those connected with it, while running up the bills of Berrys well-paid insurance defense counsel. For some time, both Henson and Berry have attempted to destroy the churches of Scientology and their parishioners, something which they happily and openly admit. This conduct also includes engaging in outrageous and scurrilous attacks against any Scientologist. One of the most outrageous examples of such conduct relates to the tragic accidental death of Mr. Moxons daughter in June of this year. During the deposition of Mr. Cipriano, which Mr. Berry attended, Mr. Berry sat in a corner and made continual degrading, snide and disgusting comments in the presence of Mr. Moxon and Ms. Paquette, about Mr. Moxons loss, clearly to cause Mr. Moxon more distress and upset. Likewise, in Ms. Paquettes attempts to meet and confer with Mr. Henson regarding his request to change the date of his deposition, he continuously made rude and vile comments about Mr. Moxons tragic loss and at one point, told her "to picture her daughter dying." At that point, Ms. Paquette told him that she was not going to listen to such harassing comments. Mr. Henson was clearly happy with the response he evoked as he could not stop laughing about it. (Paquette Dec., ¶ 25.) Mr. Henson did not limit such comments to his conversation with Ms. Paquette. In his telephone call with Ms. Sellars and Mr. Moxon, he made similar harassing and disgusting comments [My comment (which I have on tape) was that I would be "out picketing again because I got stuck here because of this hearing. So I will be out there picketing them over the fact they killed your daughter in that transformer vault." This is a true statement even if it was only gross negligence from not replacing the manhole bolts.] about Mr. Moxons daughter to Mr. Moxon himself, that preceded Mr. Moxons understandably outraged reaction. Berrys attorney intentionally omitted these comments from her declaration. It is clear that Mr. Berry and Mr. Henson will not control themselves, and Mr. Berrys defense counsel refuses to reign in their egregious misconduct.7 The Court also needs to be informed that both Henson and Berry have made false statements in their motions concerning the history of interaction between Mr. Moxon and Mr. Henson. In the motion filed by Berry, he states that "Mr. Henson is now in bankruptcy and again Mr. Moxon has appeared adversely to him and taken both Mr. Henson and his wifes depositions." (Motion at 3:13-15.) And in Hensons motion, he states: "Witness and witnesss wife have been abusively deposed a number of times by the law firm of Moxon and Kobrin, within the past two months in a bankruptcy action for several hours." (Henson Motion at 1:20-21.) These statements are absolutely false. The only Moxon & Kobrin attorney who has had any involvement in Hensons bankruptcy case, and indeed in the copyright litigation, is Helena K. Kobrin. Mr. Moxon has not been involved and has never deposed Mr. Henson in any case. And the depositions of Mr. Henson and his wife taken in recent months have been taken by Samuel D. Rosen of Paul, Hastings, Janofsky & Walker LLP, and no attorney from Moxon & Kobrin has even been present. (Declaration of Helena K. Kobrin.) Thus, Berry and Henson once again are attempting to smear Mr. Moxon and the Moxon & Kobrin law firm with allegations that are patently false. III. DISCUSSION A. Both Henson and Defendant Have Waived The Attorney-Client and Work Product Privileges In This Instance. When a party invokes privilege in order to withhold crucial evidence, the policy favoring full disclosure of relevant evidence conflicts with the policy underlying the privilege. Courts have resolved this conflict by holding that the proponent of the claim must give up the privilege in order to pursue the claim. Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed. Steiny and Company, Inc. v. California Electric Supply Company, Inc. (2000) 79 Cal.App.4th 285, 292, 93 Cal.Rptr.2d 920 (emphasis added), citing Merritt v. Superior Court (1970) 9 Cal.App.3d 721, 730, 88 Cal.Rptr. 337 (plaintiff whose claim depended on his attorneys state of mind could not proceed and continue to invoke the attorney-client privilege); Fremond Indemnity Company v. Superior Court (1982) 137 Cal.App.3d 554, 560, 187 Cal.Rptr. 137 (court could order dismissal of suit against fire insurance company where plaintiff invoked Fifth Amendment privilege to preclude questioning as to whether he started fire). In Merritt, plaintiff brought a bad faith action against his lawyers insurance carrier, alleging that, because his lawyer had been "confused," he was unable to settle or properly handle his case. In light of these statements, the defendants requested discovery seeking all information regarding the lawyers preparation, evaluation and state of mind, which the plaintiff refused to answer, asserting attorney-client and work product privileges. The Merritt court rejected plaintiffs assertion, holding that plaintiff had clearly waived the attorney-client privilege because he had openly placed "in issue the decisions, conclusions and mental state of his then attorneys, particularly as to their confusion and disability." (Id at 730.) The Merritt court thus articulated the rule that there exists an implied waiver of the attorney-client privilege and disclosure is "required" of attorney-client communications where the client "places at issue the attorneys decisions, conclusions or mental state" as an element of his case. (Id. at 730-731.) Merritt, Steiny and their progeny apply directly here. Several of plaintiffs causes of action include legal malpractice and breach of fiduciary duty, i.e., that defendants representation of the plaintiff fell below the standard of care. Here, as in Merrit, supra, Mr. Henson and the defendant have submitted declarations and motions stating that because of defendants confused and "distracted" mental state beginning in May of 1998, his practice of law fell below the standard of care warranting reversal of the judgment in the copyright case. As set forth above, this constitutes a waiver by both Mr. Henson and defendant by putting at issue, in the copyright infringement action, Mr. Berrys "decisions, conclusions and mental state" concerning the practice of law at the very time period that defendant was also representing plaintiff, giving rise to the causes of action here. Defendant cannot have it both ways. He cannot waive the attorney-client privilege by claiming he was confused and distracted and thus his practice of law fell below the standard of care beginning in May of 1998 for the purpose of attempting to overturn one judgment, while claiming here that he was not confused or distracted during this same time period, when suffering the same alleged distractions, and then claim the attorney-client privilege applies in this case. To do so defies logic and results in one-sided discovery in his favor which is prejudicial to plaintiff here. This is the very result that Merritt, Fremont, and Steiny prohibit. [This is nuts! This would be the case if I were suing Berry, but not when someone else is suing him.] Likewise, these same principles apply to defendants claim of work product. As set forth above, he has waived this privilege as to evidence and documents going to his and Hensons assertions that his practice of law fell below the standard of care during the time he was representing both Henson and plaintiff here. And to the extent Henson is claiming work product, he is not a lawyer and this privilege is simply inapplicable. Accordingly, defendants and Mr. Hensons motions for protective order on these grounds must be denied. B. Plaintiff, Like the Defendant, Is Entitled To Obtain All Relevant Information And That Information Calculated to Lead to The Discovery Of Admissible Evidence Under The Law. Any party may obtain discovery of any matter, not privileged, that is relevant to the subject matter involved in the lawsuit. Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, 39 Cal.Rptr.2d 896. "Californias pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other sides evidence, with all doubts about discoverability resolved in favor of disclosure." Glenfed Development v. Superior Court (1997) 53 Cal.App.4th 1113, 1119, 62 Cal.Rptr.2d 195. As shown here, defendant has spared no expense in conducting discovery in this case. He has taken discovery asking all manner of questions seeking character evidence, background information, and other information on matters that are at best tangentially related, and at worst, irrelevant to the issues here. Moreover, defendant has taken discovery on the very issue of defendants penchant for having sex with young boys, an issue raised in plaintiffs complaint. In the Cipriano deposition, Ms. Matthai went line by line through Mr. Ciprianos 1994 declaration asking him about defendants sexual history, which included statements that defendant routinely engaged in drug use and sexual encounters with 15-17 year old males. (Paquette Dec., ¶ 24.) Ms. Matthai has asked every witness, particularly plaintiffs family members about Scientology. None of them, including plaintiff, has even heard of Scientology which has nothing to do with this case. Contrary to the statements they make in their motion, it is defendant and his counsel who have put the pedophilia issue at the forefront of the discovery here. Indeed, plaintiff has taken no deposition, other than that of the defendant, and propounded no discovery thus far on this issue. In essence, defendant and his counsel want to take the position that they are entitled to take any and all discovery they wish going to issues raised by the complaint, but plaintiff may not. This position is without support, either in the facts here or the law. C. There Should Be No Special Master. Plaintiff also strenuously objects to the appointment of a special master for the deposition. While defendants insurance covers all relevant and irrelevant costs, plaintiff has no such source of funds to pay for unnecessary costs. It would be manifestly unfair to require such an expenditure of plaintiff in order for plaintiff to bring his claim.8 [I have been *attacked* twice by scientologists, once in a deposition by Helena Kobrin and Alan Cartwright. I filed a police report on the one in the deposition where Kobrin jumped me from one side and Cartwright from the other to recover a paper they had given me in error.] IV. CONCLUSION The personal vendetta and hate campaign by both Berry and Henson against the Scientology religion and its parishioners have no place here. Mr. Henson was lawfully subpoenaed so that plaintiff could obtain relevant information and information calculated to lead to the discovery of admissible evidence, related to (1) his publically made statements concerning defendants state of mind in representing him during the same time period in which the causes of action arose here, to which all privileges have been waived, (2) any information he may have concerning the issues concerning defendants activities with young boys, and (3) the circumstances surrounding how he came to have information that defendant committed to keep confidential in this case. Accordingly, defendant and Mr. Hensons motion for protective order is without merit and must be denied. Dated: September 8, 2000 Respectfully submitted, MOXON & KOBRIN

By: ___________________________ Ava M. Paquette Helena K. Kobrin Attorneys for Plaintiff MICHAEL HURTADO
























TABLE OF CONTENTS Page
I. INTRODUCTION 1 II. STATEMENT OF FACTS 3 A. Background History Of Discovery Thus Far. 3 B. Background Regarding H. Keith Henson. 3 C. Background to Hensons Involvement in this Lawsuit Requiring His Deposition. 4 D. Plaintiffs Effort To Meet And Confer. 9 III. DISCUSSION 10 A. Both Henson and Defendant Have Waived The Attorney-Client and Work Product Privileges In This Instance. 10 B. Plaintiff, Like the Defendant, Is Entitled To Obtain All Relevant Information And That Information Calculated to Lead to The Discovery Of Admissible Evidence Under The Law. 12 C. There Should Be No Special Master. 13 IV. CONCLUSION 13































TABLE OF AUTHORITIES

Case Page(s) Fremond Indemnity Company v. Superior Court (1982) 137 Cal.App.3d 554, 187 Cal.Rptr. 137 11, 12 Glenfed Development v. Superior Court (1997) 53 Cal.App.4th 1113, 62 Cal.Rptr.2d 195 12 Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 39 Cal.Rptr.2d 896 12 Merritt v. Superior Court (1970) 9 Cal.App.3d 721, 88 Cal.Rptr. 337 11, 12 Steiny and Company, Inc. v. California Electric Supply Company, Inc. (2000) 79 Cal.App.4th 285, 93 Cal.Rptr.2d 920 10-12 STATUTES 28 U.S.C.§ 1927 5 C.C.P. §2025(n) 8 Fed. R. Civ. P. 11 5, 7 Fed. R. Civ. P. 60(b) 6, 7