Motion to Quash Subpoenas (12 April 2002)

From: ptsc <ptsc@nowhere.com>
Subject: Motion to Quash Subpoenas (12 April 2002)
Organization: The Buttersquash Conspiracy
Message-ID: <sii1pv434v86k82sssat5hj1fubq1upus4@4ax.com>
Date: Sat, 18 Oct 2003 05:12:27 GMT

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RELIGIOUS TECHNOLOGY CENTER,
Plaintiff,
v. CASE #
Pending in the United States
DELL LIEBREICH, individually and District Court for the Eastern
DELL LIEBREICH as Personal District of Texas, Tyler Division Representative
of the ESTATE OF
LISA McPHERSON,

Defendants. I

MOTION TO QUASH SUBPOENAS,
MOTION FOR PROTECTIVE ORDER,
MOTION FOR SANCTIONS,
AND MEMORANDUM OF LAW

COMES NOW the non-parties, DANDAR & DANDAR, P.A., and KENNAN G. DANDAR, (hereinafter referred to as DANDAR), and DELL LIEBREICH, as Personal Representative of the Estate of Lisa McPherson, by and through their undersigned attorney, and hereby files their Motion to Quash the attached Subpoenas (Exhibit "A"), Motion for Protective Order, and Motion for Sanctions, with accompanying Memorandum of Law, and states as follows:

1. DANDAR is the law firm and attorney for DELL LIEBREICH, as Personal Representative of the Estate of Lisa McPherson (hereinafter referred to as ESTATE). The ESTATE is a probate estate existing under the laws of Florida, with letters of administration issued in the Sixth Judicial Circuit of Pinellas County, Florida.

1 2. DANDAR represents the ESTATE in all pending litigation' which originated with the filing of a wrongful death action against Church of Scientology Flag Service Organization (hereinafter referred to as FLAG) in 1997 in Hillsborough County, Florida, which was transferred to Pinellas County, Florida in 2000, and is set for a four month trial beginning June 10, 2002. As known by RTC and its attorneys, the wrongful death action is the only asset of the ESTATE. (See attached deposition page of Liebreich, Exhibit "B").

3. While the wrongful death action was pending in Hillsborough County, the ESTATE sought leave to amend its complaint to include David Miscavige in his individual capacity (hereinafter referred to as MISCAVIGE). A prior agreement was made between the ESTATE and FLAG to reduce the parties' expenses and to not delay trial. (See agreement, Exhibit "C"). In the agreement, the ESTATE agreed not to add those listed Scientology corporations or its officers. The Honorable James Moody, Jr. held that the agreement did not prohibit the addition of MISCAVIGE in his individual capacity and granted the ESTATE's motion to amend. (See attached orders and transcript excerpt, Exhibit "D").

4. The president of RTC accepted service for MISCAVIGE at an address in California which was provided by FLAG in sworn answers to interrogatories and represented to be the residential address for MISCAVIGE. (See attached answers, Exhibit "E" 'Dell Liebreich, as personal representative of the Estate of Lisa McPherson v. Church of Scientology Flag Service Organization, Inc., Pinellas Circuit Court Case Number 00-5682-CI-11, In Re: The Estate of Lisa McPherson, Pinellas Circuit Court Case No. 97-0589-ES-003, Church of Scientology Flag Service Organization v. Dell Liebreich, et al, Pinellas Circuit Court Case Number 00-2750-CI-20, together with various appeals from these cases.

5. MISCAVIGE filed motions with the court claiming a lack of service of process, lack of personal jurisdiction, and also filed a motion for summary judgment, set depositions, and claimed that his addition to the lawsuit was a breach of the agreement between FLAG and the ESTATE, requesting attorney's fees for breach of the agreement and pursuant to §57.105, Fla. Stat.

6. The Honorable James Moody, Jr. held that proper service of process was not made on MISCAVIGE, but denied any affirmative relief including attorney's fees because MISCAVIGE refused to subject himself to the jurisdiction of the court.

7 MISCAVIGE appealed the trial court's denial of the attorney's fees, and the order denying him fees was affirmed by the Florida Second District Court of Appeal.

8. Because RTC was funding MISCAVIGE, RTC filed suit in the United States District Court for the Eastern District of Texas for the same attorney's fees which were denied by the Florida state courts.

9. RTC filed this action in Federal District Court in Tyler, Texas and alleged that a resident of Texas, Dell Liebreich, in her individual capacity, tortiously interfered with herself as the personal representative in the breach of the contract. The Honorable John Hannah, Jr. dismissed the count against Dell Liebreich in her individual capacity. Inexplicably however, the court still accepted diversity jurisdiction over the Florida Estate on the basis that the ESTATE was a Texas resident because Dell Liebreich lives in Texas, even though statutes and case law provide that the Florida Estate can only be sued in Florida. 28 U.S.C. §1332(c)(2); McAdams v. Capitol Products Corp., 810 S.W.2d 290, 293 (Tex.App.-Ft. Worth 1991); Strawder v. Thomas, 846 S. W. 2d 51, 63

(Tex.App.-Corpus Christi 1992); Hampton/SHL Investment Co. v. Arnold Industries, Inc., 1999 WL 61422 (N.D. Tex. 1999)(citing Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997).

10. On March 4, 2002 RTC obtained a judgment for breach of the agreement between FLAG and the ESTATE in this case on the basis that MISCAVIGE was a third party beneficiary of the contract.

11. With the knowledge that extensive discovery depositions and Frye hearings are being conducted on the eve of the scheduled four month trial in the wrongful death action, RTC's counsel, who are also counsel for FLAG, served DANDAR with deposition notices with a request to produce documents concerning its client.

12. RTC's counsel, Samuel D. Rosen, knows that the items requested in Paragraph 2 of the subpoenas served have been previously requested by his client, FLAG, and held not to be discoverable by the Second District Court of Appeal in the wrongful death action. (See attached Order, Exhibit "F"). The Second District Court of Appeal has also issued a Stay Order respecting similar information in another breach of contract action brought by FLAG pending in Pinellas County, Florida. (See attached Motion and Stay Order, Exhibit "G"). The Second District Court of Appeal has also issued another stay order of discovery of loans to the ESTATE and its counsel. (See attached Motion and Stay Order, Exhibit "H"). After the subpoenas were served, the Second DCA issued an opinion quashing a discovery order, thus prohibiting the discovery of the items sought by RTC. (See Exhibit "It).

MEMORANDUM OF LAW

I. THE DEPOSITION OF THE ESTATE's COUNSEL IS NOT PERMITTED Federal courts have held that depositions of attorneys inherently constitute an invitation to harass the attorney and parties. Burdens are placed upon the attorneys and the attorney client relationship is threatened. These presumptions constitute good cause for obtaining a protective order. West Peninsular Title Company v. Palm Beach County, 132 F.R.D. 301 (S.D. Fla. 1990), cert. denied, 516 U.S. 932 (1995).

The party seeking the deposition has the burden of overcoming these presumptions. RTC must show the propriety and need for the deposition. Courts should exercise great care before permitting the deposition of an attorney. RTC must show that the information sought will not invade the realm of the attorney's work product, or the attorney/client privilege. The information sought must be relevant and its need must outweigh the dangers of deposing a party's attorney. Courts are aware that even innocent inquires at depositions often implicate work product or attorney/client privileges. ld.; Lajoie v. Pavcon, Inc., 1998 WL 526784 (M.D. Fla. 1998).

RTC has not made the required showing to permit a deposition of the ESTATE's counsel.

RTC has not made the required showing that the information sought is relevant and the need outweighs the dangers. The items sought are not the assets of the ESTATE. Further, the items requested in paragraph 2 concern an accounting of all funds received by DANDAR for expenses of the wrongful death action as well as how the funds were expended. The Second District Court of Appeal specifically held that sources of funding

is not discoverable. Dell Liebreich v. Church of Scientology, 2002 WL 499 507 (Fla. 2d DCA Apr. 3, 2002).

II. THE SUBPOENAS SHOULD BE QUASHED OR MODIFIED

A. Privileges, Privacy, and Non-discoverable Materials Fed. R. Civ. P. 45(c)(3)(A)(iii) provides that the court in which a subpoena was issued shall quash or modify the subpoena if it requires disclosure of privileged or other protected matters.

Fed. R. Civ. P. 45(c)(3)(B)(i) provides that the court shall quash or modify the subpoena if it requires disclosure of a trade secret or other confidential research, development or commercial information.

Fed. R. Civ. P. 45(c)(3)(B)(ii) provides that the court shall quash or modify the subpoena if it requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party.

All of the items requested in paragraph 2 of the subpoenas are protected by the above cited provisions of Rule 45. The privileges pertaining to these documents include the attorney/client, work product, litigation privileges.

Although Fed. R. Civ. P. 45(d)(2) requires a privilege log and it is anticipated that RTC's counsel, Samuel D. Rosen, will argue that DANDAR did not provide a detailed privilege log to preserve privilege in this instance, it is DANDAR's position that a detailed privilege log would in of itself violate the privilege. To itemize or detail the sources of funding and the expenses to which they were used would be exactly what is requested.

In general, the items to which the privilege is claimed is all information on funding received such as checks or the equivalent and the ordinary invoices and expenses incurred in a lawsuit by a law firm.

The materials sought are non-discoverable due to DANDAR and the ESTATE's right to privacy. Insurance Company of North America v. Union Carbide Corporation, 35 F. R. D. 520 (D. Col. 1964).

B. Subpoena Is Too Broad

The subpoena also has a very broad definition of "you" in that it encompasses independent third parties over which DANDAR has no control, nor possession of the materials requested. However, RTC is also prohibited from requiring third parties to produce documents because this would be circumventing the previously mentioned Stay Orders.

III. RTC AND ITS COUNSEL ARE SUBJECT TO SANCTIONS

Fed. R. Civ. P. 45(c)(1) provides that a party or attorney responsible for the issuance and service shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but not limited to, lost earnings and a reasonable attorney's fees.

Fed. R. Civ. P. 30(b)(3) provides that upon a showing that a deposition is being conducted in bad faith, or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in the district where the deposition is being taken

may order the deposition to cease or limit the scope and manner of the taking of the deposition as provided by Rule 26(c).

The Texas Disciplinary Rules of Professional Conduct, Rule 4.04, provides that "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Rule 3.01 provides that "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous." Rule 3.02 provides that "in the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter." I n the commentary to this Rule 3.02 states that "the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay undertaken for the purpose of harassing or malicious injuring."

Rule 4-4.4 of the Rules Regulating the Florida Bar prohibit the harassment being conduct herein.

A. Items sought are irrelevant and immaterial to execution on the judgment

It is the burden of RTC and its counsel to show to this court the relevancy and materiality of the documents requested in the subpoena, and even the deposition itself.

Broadcast Capital Corporation v. Flagler Securities, Inc., 149 F.R.D. 626 (D. Col. 1993).

RTC's counsel, Samuel D. Rosen, knows that the only asset of the ESTATE is the wrongful death action and that any funds received and used for the expenses of all litigation are

those borrowed by DANDAR, not the ESTATE. Thus, none of the information sought would lead to any assets upon which to levy.

The subpoenas were issued in violation of Rules 3.01, 3.02 and 4.04 of the Texas Bar because the are being used merely to harass and place an undue burden on DANDAR. The depositions and documents requested bear no substantial purpose with respect to the execution of the judgment, other than to harass, burden and maliciously injure.

B. The Church of Scientology Is Trying to Circumvent Florida State Court Rulings

RTC and FLAG are related entities of the Church of Scientology. FLAG has been plagued with adverse rulings at the trial and appellate levels on discovery issues in their attempt to discover loan sources and how the funds are spent on the litigation involving the ESTATE. Now RTC is requesting the same information. RTC cannot use this court in a transparent attempt to circumvent the Florida state court orders on discovery. Laker Airways Limited v. Pan American World Airways, 607 F.Supp. 324 (S.D. N.Y. 1985).

The fact that RTC and FLAG are separate entities does not permit RTC to obtain records of the ESTATE's counsel in the pending litigation with FLAG. Insurance Company of North America v. Union Carbide Corporation, 35 F.R.D. 520 (D. Col. 1964).

WHEREFORE, DANDAR and the ESTATE requests this court to quash or otherwise modify the subpoenas, grant the movants a protective order, and impose sanctions upon RTC and its counsel, including but not limited to attorney's fees and costs necessitated by their actions, and grant movants other relief as the court may deem just in the premises.

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. Mail this 12th day of April, 2002 to Charles A. Gall, Esq., 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202, Jerry C. Parker, Esq., 218 North College, Tyler, Texas 75702, and Samuel Rosen, Esq., Fifth Floor, 75 East 55th Street, New York, New York 10022-3205 THOMAS JOHN DANDAR, ESQ. DANDAR & DANDAR, P.A. Post Office Box 24597 Tampa, Florida 33623-4597 813-289-38581 fax 813-287-0895 Florida Bar No.: 434825 Defendant's attorney-in-charge and Attorney for DANDAR