SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. 57 HON. PAUL G. BRECKENRIDGE, JR., JUDGE
|CHURCH OF SCIENTOLOGY OF CALIFORNIA,
MARY SUE HUBBARD,
|NO. C 420153|
REPORTER’S TRANSCRIPT OF PROCEEDINGS
Friday, April 20, 1984
Pages 200 through 327, incl.
|NANCY L. HARRIS, CSR #644
DIANA R. GRACE, CSR #1672
|For the Plaintiff and Intervenor:||LITT & STORMER
BY: BARRETT S. LITT
3550 Wilshire Boulevard
Los Angeles, California 90010
BARRETT S. LITT
BY: MICHAEL S. MAGNUSON
The Oviatt Building
617 South Olive Street
Los Angeles, California 90014
|For the Plaintiff Only:||PETERSON & BRYNAN
BY: JOHN G. PETERSON
8530 Wilshire Boulevard
Beverly Hills, California 90211
|For the Defendant:||CONTOS & BUNCH
BY: MICHAEL J. FLYNN and
5855 Topanga Canyon Boulevard
Woodland Hills, California 91367
LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 20, 1984, 9:08 A.M.
THE COURT: All right, let’s see. The next motion is, I think, motion in limine on the subject matter of admissible evidence and testimony of various witnesses; is that what you next have suggested?
MR. LITT: Yes, your Honor.
THE COURT: Bear with me. Everything is sort of — I have got it.
I gather the first item is evidence relating to “shedding, destruction of, vetting” — v-e-t-t-i-n-g — “of documents allegedly carried out by members of the Church of Scientology.
MR. LITT: Yes, that is correct, your Honor.
THE COURT: All right, do you want to address that?
MR. LITT: Yes, Your Honor.
I have a suggestion — I don’t know whether the court will want to follow it or not — about how to do this.
We have set out in our motion the areas which we determined, as best we could from the discovery in the case and the pleadings in the case, that we felt should not be admitted; and I think it might be easier if the defense explained why these various areas were relevant and we respond, since really to some extent we are striking blind because we are not exactly sure what it is or what their theories are. We made our best estimate here.
But it seems to me it would perhaps be more expeditious to have a reversal of the order because I will argue and Mr. Flynn will argue, and I will want to respond to the actual theories he puts forward rather than with respect to what our guess is.
THE COURT: All right.
Do you want to offer any argument relating to this subject, Mr. Flynn?
MR. FLYNN: I do, Your Honor.
I think I am the one now being placed in the position of being a little blind because we both have the advantage of each other’s briefs; but I don’t really know what their position, in terms of oral argument, is before the court.
But basically our position is this: There are all those categories which are set forth in their motion.
With regard to the shredding of all the 14 or 15 categories –
of all the 14 or 15 categories, we think several are moot. We don’t intend to offer any evidence on some of them; but the most important one, we think, is the shredding one.
The shredding and the Fair Game Doctrine are the two most important.
But the shredding issue is probably the most important because, one, it explains the circumstances under which Armstrong came into possession. On the conversion count what the plaintiff and the intervenor would have the court or the jury believe is that he, all of a sudden, had these documents dumped into his hands and then gave them to Mr. Garrison without any real explanation of the circumstances under which they came into his hands. We think that is very important because it relates to the possessory interests that he had and the possessory interests thereafter that Garrison had, particularly when you get into the particularization of the documents because, as I indicated to the court yesterday, I don’t believe that anyone, in all candor, knows what is in those documents, probably, other than Garrison and Armstrong. And without the court or the jury understanding exactly how that occurred, we think we would be deprived of the most essential defense that we have with regard to the possessory rights of Garrison and Armstrong.
Secondly, the issue of Mr. Armstrong and S.P. Declare, having been accused of stealing the documents, and I am not sure the court has seen the copy of the Declare yet, but it is in the record, in addition to being accused of stealing them, he was accused of making false statements about Mr. Hubbard, and that is right in this S.P. Declare.
He was then placed in the position of having to prove that what he said, particularly where he thought that there was going to be a pending lawsuit against him, of having to prove what he said about Hubbard was true.
If the circumstances under which he came into possession of the documents was not allowed into evidence, then his state of mind with regard to his belief that the plaintiff and the intervenor would destroy the documents and destroy the evidence of what the truthfulness of his statements were, then again he would be deprived of one of his fundamental defenses.
Lastly on the issue of credibility, we believe that evidence that a party intends to destroy evidence is specifically relevant to the question of credibility, particularly where this, and this intervenor for a period of five years had been destroying evidence in connection with numerous civil and criminal cases pending across the United States. This is particularly relevant based on the Smith case which has recently been decided in California on the spoliation of evidence.
So, these three items, we think, justify this particular piece of evidence coming in. In fact, of all
the evidence that we intend to introduce, my personal conviction is that the most important piece of evidence is the shredding evidence because it explains to the court and to the jury what the whole case is about, that he obtained possession of documents. The documents had certain types of information in them. He gave them to Garrison. When the organisation discovered what type of information was in them, they refused to conform to the truth.
They then attacked him and then sought to get the evidence back for the purposes of destruction, and they have a history of destroying the documents. So, for those reasons we think it should come in.
Lastly, there is the issue of value and damages. If the evidence is that the documents were going to be destroyed, then the issue that has to be raised for the last year and a half in the mounds of paper that have been filed that these documents have intrinsic value of millions of dollars because they are the memorabilia of their founder, then that evidence would clearly be disputed by the fact that they are about to destroy it, number one, and number two, as the court is going to hear, the only person who stood between the destruction of these documents and the shredder itself was Gerald Armstrong.
The documents were brought to him. It was his decision to make. He brought them to Laurel Sullivan and they were preserved, but at that critical instant in
time, which is the focus of the circumstances under which Armstrong came into possession, at that critical instance
the sole discretion to destroy or keep these documents was left in the hands of Gerald Armstrong.
If the plaintiff, the intervenor, and Mr. Hubbard, the absent party here, really thought the documents had value, then they wouldn’t have left Mr. Armstrong with the ole discretion as to whether to destroy them or not. So, on the issue of damages we think it is also relevant.
THE COURT: All right, Mr. Litt, what is your position?
MR. LITT: Your Honor, let me start out explaining some circumstances and again I will because there are disputed facts on some things, for purposes of what I say, I will rely only on what Mr. Armstrong has said so that I am not dealing in an area where there are factual disputes.
Mr. Armstrong claims that there was a shredding of documents, not these documents, that occurred in January of 1980. Mr. Armstrong may contend it was to hide evidence. If we have to get into it, we will establish that that is simply false, but I won’t address that at this point. These were not the documents that we are talking about.
What Mr. Armstrong says occurred is that while this was going on, a box from an area called “Our Storage” which had Mr. Hubbard’s personal possessions, furniture, a variety of materials, a woman came up to him and said, “What should happen to these?”; a single box containing a small number of materials.
Mr. Armstrong took the box, took then to his organizational senior, said, “What should happen to these?”
The decision was clearly they should be saved.
One, they are L. Ron Hubbard’s materials and should not be destroyed.
Two, they are of value and should not be destroyed, and then, your Honor, Mr. Armstrong petitioned to obtain a post to take that box, but not just that box because we are talking about a single box that he testifies about, but some 25 other boxes that he had never been asked about what to do with, and that is the basis of his archives, but that is only the beginning, your Honor.
For the next 22 months his job is to collect up these materials in an archives. There are, your Honor, some 4,000 pages of original materials. Those original materials were in Mr. Hubbard’s archives that Mr. Armstrong obtained in September of 1981, 18 months after this purported shredding, and Mr. Flynn says these documents were saved by Mr. Armstrong from the shredder in January 1980. It is a complete distortion of Mr. Armstrong’s own testimony. He says one box.
Your Honor, there are tens and tens of thousands of pages that were in the archives. Mr. Armstrong only took a small percentage of what the total archives are and those amount to not one box but approximately in terms of the size of the box that he found, 17 times that amount, just what was given, not what was in the archives because that would be 100 times the amount.
So that on the first issue, whether or not there is any basis in the record to contend that Mr. Armstrong saved these documents — and when I say “these,” I mean the archives in total or what was under seal. I don’t believe that anything that was under seal was in that box at all; if so, a very small part of it. The materials regarding Mrs. Hubbard that came from her archives were not. Mr. Armstrong never even saw those until, literally, a year and a half later so that it cannot explain the circumstances of his possession of these archives documents because the two are completely independent.
There is no rational relationship between the fact that one set of documents, assuming Mr. Armstrong’s version, vas being destroyed and the fact that this other set of documents was saved. That was his job. That is his testimony. It was his job to preserve them. He was assigned that position. He was paid by the church to preserve them. He obtained money from the church, Your Honor, to go and purchase materials. We have purchase orders where he was given money to go and buy materials that were put into the archives.
So that on the first theory, which is that this somehow goes to a right of possession, it simply — it is completely irrational. There is no basis on which one can argue that what happened with that box provides a basis for saying that he saved these materials, and he has never contended that they were his. He never contended that because he, quote, saved them that they became his. In deposition
he said the materials are Mr. Hubbard’s. Mrs. Hubbard’s and some Scientology organizations. That is a quote from Mr. Armstrong.
Now, Mr. Flynn then slides into this Declare; and I suppose I may have to begin to get into the issue now because he asserts that.
THE COURT: We are not trying the case, counsel. It is just to determine whether or not there is some basis for receiving this evidence –
MR. LITT: I understand.
THE COURT: — and whether that is outweighed by any prejudicial effect.
MR. LITT: I understand that, Your Honor. But the first basis is; Mr. Flynn makes statements that are not supported by the record and the testimony of his defendant; and, therefore, the reason I spell out those facts is because when the facts, as he testifies to them, are known, there is no rational basis. There is no reasonable relationship to anything that is relevant; because given his own testimony, this is not relevant.
Then he argues that somehow what was stated in this Declare — this takes us directly back into the First Amendment issue in the case. A Declare, Your Honor, is an internal excommunication notice within Scientology; it is nothing else.
There is an internal procedure by which a person who is declared can challenge that Declare or can get back into good standing with the church. It is a statement that
you are excommunicated from the church. It refers to Scientology crimes, not civil crimes. That is the basis of it.
Mr. Flynn says that in this Declare, in this internal document, that Mr. Armstrong was placed in the position of having to prove that what he said about Mr. Hubbard was true and that somehow, therefore, shredding of documents can come in. The Declare has nothing to do with that. It is not justiciable. It is an internal church affair. It cannot be intruded into by the court. That is point one.
But point two, it is not an accusation in any court. Declares are issued commonly, including to people, by the way, Your Honor, who remain in the church. It is not exclusively for people who leave the church. It has to do with internal systems and procedures, so that there cannot –
First of all, the court cannot allow the testimony about the Declare to come in under the First Amendment. But, secondly, it has nothing to do with anything; and what is going on is: Once again the defendant is putting forward theories and if these generalized claims of destruction of evidence, which are not supported by the record in this case about these documents, are permitted to come in, the prejudicial effect is obvious. The relevance, if it has any, is extremely remote, given Mr. Armstrong’s own testimony; and there is no — there is no evidence that a person can rationally conclude that there was any intention to destroy these documents.
THE COURT: It seems to me that is a question for the jury to decide, counsel. You are raising a number of points which go to the ultimate issues in this case, but I am not dealing with the ultimate issues. We are dealing with whether or not evidence should be received. And it seems to me he has a right to explain why he did what he did, when he did; and it is for the jury to determine whether that is truthful or not.
If this is part and parcel of his justification — and apparently there is documentation from other cases that there was, at different places, different times, shredding, that is apparently not a secret and that has been judicially established, I gather. It seems to me –
MR. LITT: I don’t know that that is judicially established.
THE COURT: Pardon?
MR. LITT: I am not aware that that has been judicially established.
THE COURT: Maybe it hasn’t, but I had a feeling I had read somewhere there was some evidence of that that had been referred to in some of the cases that have been published, various decisions in the United States over the last 20 years dealing with the Church. And it seems to me that he is entitled to present this, and it seems to me if it is a substantial basis for his justification then it is something he is entitled to present. And if it isn’t true, if it can be established it isn’t true, then that is for the jury to determine.
MR. LITT: Your Honor, the point is that they are going to introduce evidence about other shredding activity which will prejudice the jury, which has nothing to do with these documents. That is why it can’t come in. That is why I have to explain the circumstances. Its prejudicial effect — the real purpose is to say, “These people would destroy anything,” not these documents; because there is no evidence that a single document was ever destroyed of these archives or anything that Mr. Armstrong took.
THE COURT: I got the impression that there was an operation going on out there at the Springs and that things were being shredded and that he came across this box and inquired as to whether or not it was something — what should be done with it, and he was advised that apparently it should not be destroyed. So it seems to me you have relied upon that in some of your statements, I believe, or briefs, that this is how the whole thing originated. And it seems to me that that is part and parcel of this case; and whether it is true, that is for the jury to decide. I think that we can –
MR. LITT: Your Honor, they intend not only to introduce evidence of how Mr. Armstrong came into possession of this box, they intend to introduce testimony from people talking about a variety of shredding activity.
Mr. Flynn said it yesterday, “This was the fourth,” according to him, “of some series of activities.”
Are we going to get into all of those?
THE COURT: Well, I don’t know.
What do you have in mind in that respect?
MR. FLYNN: Your Honor, what I have in mind is just this one shredding operation; and if evidence is introduced to try to rebut that, then I think I could then introduce evidence to show a pattern of conduct. But, in any event, all I intend to introduce right now is the circumstances surrounding how this box came into Mr. Armstrong’s possession.
THE COURT: Well, his state of mind with respect to, I assume, what might happen to it if it were returned to the church.
MR. FLYNN: Exactly, your Honor.
MR. LITT: I just want to make clear that it is our position that his state of mind is not an element of any of the torts in this case, and if I understand the court correctly, it is basically on the theory of this justification defense that the court referred to yesterday that it is being found to be relevant. I just want to understand –
THE COURT: Well, you are understanding it correctly.
Well, I can give a limiting instruction that they are not to consider it for any other purpose unless the court instructs them to the contrary.
I will deny the motion except that it will be received for the limited purposes as we have indicated and in dealing with this one situation out there at Gilman Springs, and that the defense will not be permitted to go into other shredding operations without first bringing it to the attention of the court outside the presence of the jury so that the matter can be thoroughly argued by both sides.
Number two is the suggestion that Mrs. Hubbard and Mr. Hubbard are not legally married. Do you have any intention to get into that, counsel?
MR. FLYNN: No, your Honor.
MR. LITT: Let me raise a question about that. He says in his response that he doesn’t intend to get into that.
He does intend apparently to make the contention or to try to introduce into evidence a marital agreement signed in, I believe, 1952, 31 years ago between Mr. and Mrs. Hubbard, which, according to the characterization, says that either side will grant a divorce to the other without a property claim if either side desires, which has never occurred.
He does say he intends to get into that to argue that she has no right to the joint property of her and her husband.
THE COURT: I don’t see what that’s got to do with whether or not they are legally married. We can talk about some other points on that subject.
He says he is not going to present anything that they are not legally married, so that motion is granted. There will be no evidence or no suggestion that the parties are not legally married.
MR. LITT: What I am reading, your Honor, is that when we wrote this, we did the best we could as to what the type of evidence was. They have stated what evidence in this regard –
THE COURT: Well, we can deal with that as an additional item if you want to. Let’s just deal with what you have got here first.
MR. LITT: Okay.
THE COURT: Three, the fact that defendant Armstrong has filed a cross-complaint against the Church of Scientology of California and other parties with the allegations on which the cross-complaint is based.
Do you have any intention of getting into that?
MR. FLYNN: We don’t intend to introduce it, your Honor.
In your Honor’s initial statement to the jury as to what the case is about, we think that your Honor should explain that there is a cross-complaint that they are not hearing. But in terms of putting it into evidence, we don’t intend to.
MR. LITT: The existence of a cross-complaint has no relevance either in any indications from the court or in evidence in the case. I don’t understand what — the effect of the court saying that there is a cross-complaint is to give more weight to it than if Mr. Flynn were to say it.
THE COURT: Well, it seems to me it has no relevancy except it might show some bias on the part of the defendant and I would think the plaintiff might want to get into that, but if he is not geting into it, I don’t see any reason to deal with it so I will make the order that there is to be no reference to the cross-complaint and with all of these things where I am making an order prohibiting something, it is always subject to the proviso that if something else develops that makes something rational or reasonable or relevant, it can be brought to the attention of the court outside the presence of the jury. We will discuss it and the court would be willing to reconsider the position. This is a starting point.
Four, any alleged misrepresentations to fraudulent
practices committed by L. Ron Hubbard, Mary Sue Hubbard or the Church of Scientology or any scientology organizations or any individual acting on behalf of any such organizations.
MR.FLYNN: Well, your Honor, I thought — I think that was extensively discussed yesterday. That is what the case is about in terms of not only Mr. Armstrong’s state of mind but on all of the issues, virtually every issue in the lawsuit And every count as to why he did what he did.
For example, if the invasion of privacy count and the breach of fiduciary duty counts are tried, then the upshot, the result of trying those issues is to go into those facts. It isn’t that we are intentionally trying to put fraud or misrepresentation before the jury, but in putting before the jury the issues of public figure and what public interest is involved and whether or not over a period of years certain statements were made about Hubbard, and how the documents relate to the public interest and public figure issues of what was said about Hubbard in the context of these documents, the documents, as I have indicated from the outset to the court, are going to disprove what the public statements have been about Mr. Hubbard. That is the essence of the entire case.
In terms of trying to prove that L. Ron Hubbard and Mary Sue Hubbard or the Church of Scientology of California are frauds or involved in fraudulent activities, that is not the purpose of the introduction of the evidence. The outcome of the introduction of the evidence, because it
relates to the documents, is, however, that.
THE COURT: Mr. Litt?
MR. LITT: Well, your Honor, we did argue this at some length yesterday and I am not going to go through the whole argument. I do want to make a couple of comments. The first is I just want to say again that, and we will have to return to this a little later just so I can understand how we are going to handle certain things, but the First Amendment implications of what this court is apparently permitting in allowing Mr. Armstrong’s beliefs about fraud, alleged fraud by the church, L. Ron Hubbard, the first amendment implications of that in the whole way that the case is tried are, in my view, beyond description.
I can only reiterate that I believe that to the extent that the court adopted a theory that by a church bringing a suit it somehow has less of a standing to raise its First Amendment interests, if that was the import of the court’s ruling, I think that is incorrect and I would ask that the court give it further consideration.
THE COURT: Well, I think that that may misstate what I am saying. I am saying that if the church seeks to obtain money damages, the defendant has a right to a fair defense and a fair defense may include the reference to these writings or documents as an effort to explain what he did or attempt to justify it under the law.
MR. LITT: He is trying to justify it on a theory of religious fraud which is not justiciable and which can’t go to a jury. That is the basis of what we are saying. He is
trying to say, I believe, that they were a fraud. A court can’t make that determination that they were a fraud. Therefore, it can’t be a defense.
I am just trying to say that the logic, I think, of what has been done and what is going to happen in this case as a result, Mr. Flynn said it himself, it is not my purpose but it is the outcome, and what this court is permitting, if it allows that to happen, is a trial of religious fraud on a theory of defense.
THE COURT: You are the one that is pursuing these actions. I am not. Defendant is not pursuing these in this action.
We can deal with the case solely as an equitable matter if the plaintiff wants to do so, but you are seeking monetary damage. But at the same time you are saying I don’t want punitive damages. I give up my claim for that. I don’t want anything other than the nominal damages on the amount of the conversion. So we are trying this, I guess, for whatever expenses were involved, and if you can proceed on a theory of establishing that there was conversion and that is what we are trying it for, you are seeking this release, all right, they have a point of view. They have a claim that they have certain rights and they are entitled to present them, and I can’t put blinders over this case in order to present only a one-sided picture. There are two sides apparently to this lawsuit, as most lawsuits, and it is for the jury to decide.
MR. LITT: I would like one point of clarification
because I am going to have to, as I will explain further on, have some discussion with my clients concerning the implications of some of the court’s rulings, but just so I understand what that ruling is, is the court’s ruling that this is relevant to the damages claims but not relevant to the equity claims?
THE COURT: No, I am not.
MR. LITT: There is a question –
THE COURT: I don’t think I can decide the case on an equitable basis without hearing the evidence presented. At the same time –
MR. LITT: But, Your Honor, you started out saying that we are pursuing the damages claim. That may be, but we are also pursuing the documents; and there is no — there is no compromise. There can be no give from the church’s point of view and Mrs. Hubbard’s point of view about returning the documents.
THE COURT: I am not suggesting there should be.
MR. LITT: If these matters are relevant according to the court’s theory, to the equitable claim, then whether we are pursuing the damages claim doesn’t really resolve anything; because even if we weren’t pursuing the damages claim, all these issues would have to be tried, and then the court would be ruling that trying to get the documents back by the church opens these matters up.
THE COURT: Well, I would think that the extent that they — we wouldn’t be dealing particularly with any questions of justifications on the part of the defendant or his state of mind or why he did what he did. We would be dealing more with who has rights to this property at this time; and if it is evidence, it may be that it would be required to be preserved in some fashion. But the point is that this is being juxtaposed in this context because they have a right to defend themselves against these allegations that you have
MR. LITT: Yes, but the reason I raised this –
THE COURT: I am not saying that I, at this time, am deciding what evidence could be received in the equitable action. I don’t think it would be necessary to get involved in many of these things that you have discussed without the thing being tried; but we have some maxims, “He who seeks equity must do equity.” We have some other problems that deal –
MR. LITT: The unclean hands defense is not in this case, Your Honor.
THE COURT: We would have to deal with raising all these problems to a jury trial, which sometimes creates problems.
MR. FLYNN: Your Honor, if I could interject at this point. The defendant is giving serious consideration — and we may know by noontime today — of waiving our jury claim and having the case tried solely before Your Honor in whatever procedural posture it ends up. We feel that that could greatly expedite this case.
In the introduction of evidence in this case the problem of sanitizing before the jury all this evidence could result in a prolonged trial and numerous side bar conferences with regard to what they are going to hear and what they are not going to hear. So we are giving serious consideration, in order to short-circuit what is seemingly turning into potentially a four to five week trial — we are giving serious consideration to waiving the jury.
The plaintiff and the intervenor in this action tried to block our jury rights, and they have taken a very strong position that they don’t want a jury. So in that light I am informing the court of this at this point so Mr. Litt will also be informed. If we let the court know by noontime, then a lot of the problems with regard to what has to be sanitized in front of the jury will be obviated.
MR. LITT: Your Honor, I am going to object to the comment that we have tried to block their jury rights. I don’t know what Mr. Flynn is talking about.
THE COURT: I don’t know. I assumed that the plaintiff was seeking the jury trial on these matters, primarily.
MR. LITT: No. The defendant had requested the jury trial. We had originally waived jury trial.
THE COURT: It is immaterial to me.
MR. LITT: I object to the characterization that we have done anything to block their jury rights.
THE COURT: I will sustain the objection. I am not considering that in any fashion.
Insofar as item No. 4, I will receive the evidence as it relates to, obviously, the issues dealing with Mr. Armstrong that we have talked about before. Obviously, at the same time, we are not going to go out on a fishing expedition as to other purported improprieties that have no relationship to this particular situation.
By denying this motion I am not suggesting that we would go out and get involved in other things other than what have been specifically referred to by Mr. Flynn in his
stated offer of proof as to what Mr. Armstrong is going to be testifying to.
Item 5, alleged criminal or tortious activity by L. Ron Hubbard, Mary Sue Hubbard, Scientologists, the Guardian’s office or any Scientology organization. Well, obviously, just in general something like that could not come in. Now, as it may relate, as we talked about in item No. 4 or in item No. 1, in the more specific situations there may be relevance to some of these things; and so I don’t know whether this is intended as just a general blanket type of objection.
MR. LITT: Your Honor, in part it is and in part it reflects the problem that we have, especially in terms of the court’s rulings, which I think is best saved for the end.
But we are going to ask the court, just for case management and so we even know what it is we are supposed to respond to in the way of this novel affirmative defense that the court has permitted, that we get — that the court require some specification as to the evidence that the defendant intends to introduce.
I think the court will see more, when we argue some of the other things, why that is necessary; and, in part, I think the real solution to this problem can only be posed then. We just know from experience, in general, the kinds of charges that get made. You have heard many of them in the courtroom today, ranging from purported theft of $250 million from the Church of Scientology by L. Ron
Hubbard, its founder. You name it, and we hear it. So we raised it simply to flag the issue in general.
I would just save for the end a discussion of procedurally how we are going to proceed, in fact, so we know what we are dealing with and how to proceed with the case. Obviously the general illegality, the court has said, is not admissible. I don’t know what it is that the defendant intends to introduce in this regard. I haven’t the faintest idea at this point, and we would like to know if there is any –
THE COURT: Mr. Flynn has been talking about it. Of course, I realize that both counsel in their presentations, that are somewhat emotionally charged, have strayed somewhat from relevant matters in their eloquence.
At the same time, I think that basically what he is saying is what he said this morning insofar as what Mr. Armstrong is going to testify to. And certainly all of the Supreme Court cases say that we are protecting what people believe but not how they act or what they do; and if conduct was directed at Mr. Armstrong’s actions, which cause him to have certain beliefs and do certain things, it seems to me those things are relevant and admissible.
So as a general blanket proposition, I will grant your motion.
Six, alleged tortious or alleged activity by the Church of Scientology or the Hubbards against individuals viewed as enemies of scientology.
This, of course, again, I suppose, if it is something that Mr. Armstrong knows about or relies upon or believes, it may well be admissible as a justification for any conduct that he took. As it may have no relationship to that, it would have no admissibility clearly.
MR. FLYNN: It is limited to that, your Honor.
THE COURT: All right. As a general proposition, I will grant the motion excluding matters which are more specifically relevant to matters which Mr. Armstrong knew about and more believed or reasonably believed and relied upon.
Item seven, an incident which took place in April 1982 regarding a dispute over photographs between Gerald Armstrong and certain scientology staff members.
I think Mr. Flynn has already mentioned this in passing. This had to do with his ideas as to what might happen with property.
MR. FLYNN: That is exactly correct. This is a key fact in this case as to what caused him to come to me. He believed that since they came and they stole these photographs at the same time he was declared, that they were going to Garrison once they knew the contents of the documents and steal them all. That is why he hired an
THE COURT: Any comment, Mr. Litt?
MR. LITT: My only comment, your Honor, is that if theory is what is in Mr. Armstrong’s mind, which is just wrong once you adopt that premise, I can’t really argue on the photo.
Our position, I think, is clear.
THE COURT: All right, then, the motion will be denied as to item No. 7.
8, the Fair Game Doctrine.
MR. FLYNN: Our entire case, your Honor, is predicated upon the fact that Mr. Armstrong went to a lawyer because he observed for ten or 12 years the specific application of the Fair Game Doctrine, not as a personal church policy, and he does not intend to testify about all of the instances where he thought applied.
For the court’s information, the instances where he thought applied are just shocking. They involve –
MR. LITT: I thought he wasn’t going to testify about that. What does it have to do with this?
MR. FLYNN: He is not going to, but I am going to explain the background of the doctrine.
MR. LITT: I am going to object to this. I think it is a blatant effort to prejudice the court. Mr. Flynn has just said he doesn’t intend to introduce this evidence, but he wants you to know about that. I don’t understand that. I don’t understand such a procedure. If it is not relevant and he is not attempting to assert it, and now
he is suggesting that this court is going to sit as the trier of fact in the whole case and he will put in all of those things that he, quote, doesn’t intend to introduce. If it is not proper, if he is not arguing it is admissible, then he should not be presenting it to the court for the court to determine if it is admissible.
MR. FLYNN: If I can respond to that.
THE COURT: Yes.
MR. FLYNN: In the Allard case, as the footnote indicates, the trier of fact in that case or the judge took evidence initially or took it apparently de bene from what Mr. O’Reilly’s office tells me, and the footnote seems to suggest and give the rest of the trial to the defendant in the action to introduce evidence that a Fair Game Doctrine had been canceled as they had alleged in their briefs and apparently during the course of the proceeding. They never did introduce evidence that the Fair Game Doctrine had been canceled, and the reason, I submit to the court, is because if they had introduced evidence that it had been canceled, the plaintiff in that action would have been entitled to introduce evidence that it had not been canceled, and picking up on Mr. Litt’s suggestion, I will not go into the details.
Suffice it to say, that the application of the Fair Game Doctrine over the last 10 or 12 years the defendant knew about and the 18 years that it has been in force is probably, to quote the U.S. attorney of the Federal District Court –
THE COURT: I don’t want to get into that. Just deal with what the evidence might be.
MR. FLYNN: It basically involves a rampant attack on everyone who ever opposed the Church of Scientology with every crime virtually that could be committed, and everything that could be done, ranging from “we suggest death,” all the way to simple, frivolous lawsuits, and I won’t get into the details. The details would take me two hours just to give an outline of.
Now, Mr. Armstrong, because of his position, knew and saw and heard, for example, of assassination plots. He knew what the Fair Game Doctrine was. Not only did he know, he was drilled on a Pact called the PTS and SP, which basically taught him as a Sea Org member how to deal with enemies.
The Pact is some two inches thick, which we don’t intend to put into evidence, but basically explains how the Fair Game Doctrine works and what you do to enemies of the church.
It has got nothing to do with internal church policy. In fact, if it had to do with internal church policy, then either one of two things would occur.
In light of the reality in the real world for the way the Fair Game Doctrine operated, it would make all Church of Scientology policy non-religious or all of it religious.
It is simply inconceivable, and I would suggest that in the criminal case of the United States vs.
Mary Sue Hubbard they raised the religious defense that they were entitled as a religious matter, and it is suggested right in the case when the District Court of Columbia Court of Appeal dismisses it in a footnote as being just entirely frivolous, but they address some 30 or 40 pages of their memo to it that breaking into 136 state and federal offices was not entitled to a religious defense.
But that brings up probably the basic logical problem with claiming that the Fair Game Doctrine is a religious doctrine. Assuming an entirely legitimate religious organization, one that has been recognized as such for hundreds of years, the Presbyterian Church, the Catholic Church, whatever, took a doctrine and said, “Well, the fundamental doctrine of our religion is that anyone who opposes our religion can be lied to, sued, cheated or destroyed, which is the quote from the Fair Game Doctrine in part.”
Well, if Mr. Litt was correct and all that meant was that in the ecclesiastical circle of that legitimate religion the person could be brought in before the ecclesiastical court or the person could be lied to in the ecclesiastical environment or cheated in the ecclesiastical environment, or another part of it is depriving them of property in the ecclesiastical environment, and if the individual somehow consented as an ecclesiastical matter to even the deprivation of his property, then some spectre of an argument perhaps could be raised that as long as it is confined to the ecclesiastical environment, then it is only a religious doctrine.
When you get into the last element, destruction, and your Honor may or may not hear, depending on how the evidence comes in, words in the Church of Scientology are very significant.
Someone who undergoes Scientology training is drilled on the specific meaning of words. For instance, when you do this PTS and PT Pact, you have to go and look up in a dictionary the exact meaning of every word. And these courses dealing with the definitions of words relate to the fact that you have to have a concrete understanding in your mind of what the word means.
So if you take the word “destroy,” these Guardian’s office agents that implemented these policies — and I have seen numerous course pacts of Guardians office agents who did this — have to go and check off that they understand specifically what the word means, specifically what the word “destroy” means in all of its context.
If, as my brother might argue, the word “destroy” only means spiritual destruction, then someone who has undergone the training to implement the Fair Game Doctrine would be limited to the definition in the training manuals.
Well, as Your Honor may see in a voir dire hearing, for example, that is simply not what happened in training Guardian’s office agents to go destroy enemies. They were trained, if we ever get into a voir dire hearing on this issue — they were trained to go out in the temporal world and do things like putting LSD in toothpaste, putting drugs in drinks, framing journalists –
MR. LITT: I thought we weren’t getting into this.
MR. FLYNN: That is what they are trained to do.
But assuming, even, that some idea of spiritual destruction was only what they are trained on, which is simply
not the case, but further assuming that, if members of the church believed that the Fair Game Doctrine was soley an ecclesiastical doctrine which has got nothing to do with reality, but even if they believed it and even if Mr. Armstrong during the course of his tenure in the church believed that it was a purely ecclesiastical doctrine which has got nothing to do with reality, once they engaged in conduct outside that belief, in granting full scope of religious belief to the doctrine itself — once they engaged in conduct outside that belief which resulted in some type of conduct in the temporal world, such as taking photographs, subjecting Mr. Armstrong to some of the things he was subjected to, or suing him in the Los Angeles Superior Court –
Once that conduct was injected into the previously ecclesiastical environment, the Supreme Court has said over and over and over again, one, religions can’t commit fraud and, two, once they engage in conduct there is a big dichotomy between belief and conduct. When it becomes expressed, it is cognizable in a civil or criminal court.
Now, I would suggest to the court that if Your Honor followed the alternative to that, the logical alternative, namely that the Fair Game Doctrine is purely ecclesiastical, and even if it somehow got expressed by mistake of a staff member who went out and did something in the temporal world to Mr. Armstrong, aside from hiring private detectives to smash into his car, assault him on the street, things that Judge Cole in this court recognized — aside from doing things like that, if this court were to adopt
the view that words such as are expressed in the Fair Game Doctrine are, one, purely ecclesiastical and, two, even if understood by staff members is purely ecclesiastical and, three, even having that understanding the staff member could thereafter go out and engage in conduct which was detrimental to Mr. Armstrong — if that rule was followed, that the court could not recognize that type of conduct as being actionable in a civil court, society would be totally — we would be suffering totally from anarchy. There would be no law.
Any religion could adopt any law whatsoever, claim that it was religious doctrine and lie to, sue, cheat or destroy or take property on the premise that they are doing it under the belief that it is religious.
If Your Honor adopted that logical approach, then either one of two things would happen. Either all of the religious doctrine in every religion would have to be cognizable in order to make it somehow legitimately involved in civil court, or Your Honor would have to do what every court in the country does and particularize between what is legitimately religious doctrine on a threshold finding and what has to do with the civil courts.
Now, with regard to this particular case, Mr. Armstrong, as the testimony will show, at least initially in voir dire or, if the jury is waived, before the court or before the jury, if it is permitted, was in a state of terror after he left the Church of Scientology because of what he knew and because he knew that the Fair Game Doctrine was going to be applied against him. When the S. P. Declare
came out and it said very temporal, nonspiritual things, like he had lied about Hubbard, he had stolen documents and a host of some 20 or 25 other things that he had allegedly done, that, as the evidence will overwhelmingly show if we ever have to prove it from former Guardian’s office agents, former staff members who knew what the Fair Game Doctrine implies, in Mr. Armstrong’s mind subjected him to an immediate, unended, open attack and assault by anyone in the Church of Scientology; and that is, in effect, what began. That is what drove Mr. Armstrong to see me.
So all of that evidence goes to his state of mind; and if Your Honor wishes to put Mr. Armstrong on the witness stand right now and ask him all the questions you want relative to his state of mind, I would suggest to the court you will see, in very candid terms, where Mr. Armstrong’s mind was at the time all of this took place. But, in any event, his state of mind with regard to hiring a lawyer when he knew what he was going to be subjected to, we submit, was justified. That is one reason why the Fair Game Doctrine should come into evidence.
Probably more importantly, and the reason we argued at length in our brief, which I won’t completely reiterate, which was recognized in the Allard case, is that there are already on this record, going to the fundamental issues in this lawsuit, namely who owns or had the right to possess these documents, totally 180 degree inconsistent statements, not only between the plaintiff and the intervenor but inconsistent statements on the part of the intervenor
herself, all of which goes to the issue of credibility.
Now, the sequel to the Fair Gage Doctrine, which I don’t intend to introduce into evidence, but which fleshes it out a little bit, is called TR-L, Trained Routine for Lying under oath. It is a written policy of the Church of Scientology where Guardian’s office agents or witnesses are drilled on horn to lie under oath. It has been recognized and introduced in other judicial proceedings.
It is a formal training procedure. In fact, I will tell the court right now that every witness who appears on this witness stand for the Church of Scientology will have gone to witness school and will have been drilled in that policy.
MR. LITT: Your Honor, this is really out of hand. I prepared these witnesses and that is false. I am the person who prepares the witnesses.
Mr. Flynn has no right to make these kinds of allegations. This is just out of control. I don’t have anything else to say.
THE COURT: I don’t know whether it is in control or out of control in a sense because, I suppose, this may be the subject of another in limine motion as to whether he is permitted to cross-examine these witnesses on the subject. If he has a reasonable basis for believing this is the truth, it may be he is entitled to go into it. I don’t know.
MR. FLYNN: Some of my basic witnesses, including probably the most significant witness in this case, was drilled and went to witness school for the IRS proceeding in which she didn’t pass witness school. They dropped her as a witness.
But in any event, the Fair Game Doctrine says, “Lie to and cheat.” It is hard for the court, I am sure, to try to comprehend in a realistic manner that someone could really believe that an enemy, a suppressive person, can justifiably be lied to and cheated, but it is the policy
of the Church of Scientology to lie and cheat enemies as a matter of course.
That is why the Judge, I submit, in the Allard case introduced it on the issue of credibility because the witnesses in that, just as Mary Sue Hubbard will testify here, and other witnesses for the Church of Scientology will testify here, are entitled to as a matter of policy to lie to enemies of the church, of which Mr. Armstrong is one of the top enemies in the world now.
So, on the issue of credibility the Fair Game Doctrine, I submit, should come into evidence if we can make a prima facie showing that it is the policy of the organization to lie to Mr. Armstrong and/or lie, period, and I submit to the court that we will be able to make an overwhelming showing to that effect if that is necessary.
So, under the Allard case we submit on the issue of credibility it is admissible, and again on that point, that issue was fully resolved by the California Court of Appeal with regard to its admissibility.
The claim that Mr. Litt made at the outset of this proceeding that the First Amendment issue was not raised with respect to that is simply shown by a reading of the Allard case, which I don’t have in front of me right at the moment, but right at the beginning the paragraph or two right before where the court is talking about the credibility, that paragraph relates to religious doctrine.
Right at the end of where the court is talking about religious doctrine, it is talking about the
introduction of the Fair Game Doctrine goes back into the same consideration, and says that it is not inadmissible because it was religious doctrine.
So, given all of that, your Honor, we submit that on the state of mind and on the credibility of the witnesses, the reason we are in this courtroom is because of the Fair Game Doctrine.
THE COURT: Okay, Mr. Litt?
MR. LITT: Well, let me start out with the inconsistent statements. The inconsistent statements that Mr. Flynn refers to are inconsistent statements, and there are such inconsistent statements made because Mr. Armstrong took the documents and nobody else knew what he had except him. So when the church first filed the action, it said they are our documents. It turns out that most of them were Mr. Hubbard’s documents, so then the church changed based on Mr. Armstrong’s testimony and said, “They are Mr. Hubbard’s documents.” And that is this major inconsistency. This is the exemplification apparently of the policy of lying that Mr. Flynn is referring to.
Now, we really have to break this up into two parts. There is an evidentiary part and there is a First Amendment part. The defense wants to say and presumably this would apply to any bad, quote bad organization that they are bad, and they have bad policies and those bad policies are to rob. Therefore, we can show that these have these bad policies to rob in a burglary prosecution. What is the difference?
Somebody is a member of an organization, gang. This comes up quite a bit in criminal cases, a gang membership, and the cases generally in discussing something as attenuated as that, just membership in a gang for purposes of showing therefore that they are more likely to do this, it is not permitted just as an evidentiary matter.
What Mr. Flynn really lays out here is he wants to say they have a policy to do A, and therefore they did A. Well, it doesn’t work that way. Prove A.
You don’t prove A by proving a policy to do A. It is not habit or custom evidence. You can’t use habit or custom which talks about routine activities as an evidentiary theory to admit policies, so that the first problem that exists is that the — this type of evidence which is, I think the court has heard enough to know, is extremely highly-charged and extraordinarily prejudicial is being used to substitute for proof of facts. It is really an effort to say that any allegation we make is true because look at this policy. That is the purpose. That is the effect of it, and it is, I don’t care if this were not a religious organization, and I don’t care if the policy were go after enemies in the second World War.
The impact of that is overwhelmingly prejudicial. It is not permitted to prove acts through policies except in extraordinary limited circumstances which do not apply here, but that is not — that is only half of the problem.
Mr. Flynn refers to the Allard case. The only thing I can say about the Allard case is that the full
presentation of the religious context of this was not presented to that court, and frankly I am not presently prepared to do it fully, but I will make a partial offer of proof and we will supplement it so it, at least, is in the record in this case. But I would like the court to be aware.
Mr. Flynn quotes from a one-paragraph statement in a policy letter of Mr. Hubbard made in 1967. Now I want to show that the court under the context of this policy letter which is pulled out of context and which intrudes, as I will show, into religious belief and doctrine. I want to quote from the first mention that at least I have been able to determine of this in Scientology materials.
It is from a policy letter of 1 March 1965 called “Suppressive Acts. Suppression of Scientology and Scientologists. The Fair Game Law.”
Now the court should understand. the very title shows the problems that we face. “Suppressive acts” are Scientology terms. They are religious terms. They refer to acts that within Scientology are considered against the interests of Scientology.
There are a lot of things there. For instance, testifying in court against a Scientologist, without opposing it, is considered a suppressive act. Okay. Scientology, as many religions, just using that one example, they have an internal justice system; and you must make recourse to that within Scientology. You do not sue Scientologists in the civil courts. Those disputes are to be resolved
internally. The Jewish tradition was identical, as one example.
Now, this document says, this first mention of Fair Game says, “A suppressive person or group is one that actively seeks to suppress or damage Scientology or Scientologists by suppressive acts. Suppressive acts are acts calculated to impede or destroy Scientology or Scientologists.” And it goes on at great length, which I am not going to read.
“A suppressive person or group becomes fair game. By fair game is meant without right for self, possession or position, and no Scientologist may be brought before a Committee of Evidence or punished for any action taken against a suppressive person or group during the period that that person is fair game. A Committee of Evidence may be called by any convening authority who wishes more concrete evidence of efforts to suppress Scientology.”
And then it talks about amnesties for people declared fair game. The court should understand that fair game refers mainly to Scientologists.
In a later policy letter it talks about the fact that for commission of certain Scientology crimes or suppressive acts that one can have cancellation of certificates, cancellation of classifications and awards and can become fair game.
Then it goes on to say, in another policy letter written by Mr. Hubbard also in 1965 — he says that “When a person announces he is no longer a part of a group, he has rejected the group. He has also rejected its codes and rules. Of course, he has also rejected the protection to which he was entitled as a group member. It does not make sense to extend the protection of the group to the person seeking to destroy the group. That is like encouraging a disease. Hence, we have a fair game law.”
And then it goes on to talk about — let me see. It goes on to talk about the problem of sort of making this policy too expansive. It says, “Students or PC’s” — that is a reference to PreClears — “who seek to resign or leave courses or sessions and refuse to return, despite normal efforts, become suppressive of that course.” And then in this context it talks about the fact that in such cases there may be a cancellation or the fair game law may be invoked.
Now, I am reading these to give the court a sense of the context of this Fair Game Doctrine, which we will — I don’t have it yet. The case has a lot of things going.
We can demonstrate, and we will be prepared to demonstrate, that the type of policy that I am describing here is a typical religious policy that is not unusual.
In another document from 1965, a policy letter from Mr. Hubbard, it states, “Only when this,” referring to a waiver or quitclaim, “is signed may the student” — this is referring to a Scientology student — “have his course fee returned, but no other fees, as he accepted that service. The ex-student should realize this makes him fair game and outside our justice codes. He may not have recourse of any kind beyond refund and after signing can only return to Scientology as per policy on fair game.”
In another document it says, “Civil court action –” remember that I said that Scientologists could not be sued by other Scientologists. It says, “Civil court action against S. P.’s to effect collection of moneys owed may be resorted to as they are fair game.”
Then in a document from the end of 1965, entitled “Suppressive Acts, Suppression of Scientology and Scientologists, the Fair Game Law,” which replaces the document that I began with, it says, “By fair game is meant may not be further protected by the codes and disciplines of Scientology or the rights of a Scientologist.”
Now, let me read to you from the testimony of Gerald Armstrong, not in this case but in another case where he was being called as a purported expert, among other things, on fair game. This is from the case of Cooper versus Church of Scientology. It is pending in this district. On what
the meaning of the doctrine itself is, not on what he says the church does but on the meaning of the doctrine itself, in answer to a question by me, his answer was the following:
“So, okay. I would say these two things. He,” referring to a suppressive person, “who has been declared has no rights as a Scientologist; and a Scientologist who commits acts against him is not actionable within the Scientology justice system,” although I will tell the court that that is no longer true. But that is his description.
“So that pretty well covers the attitude or the direction that is given toward the handling of a suppressive person, and that direction or attitude is fair game.”
Mr. Armstrong says that as to what the doctrine was it is what I have just said. Now, the policy that Mr. Flynn is so fond of quoting is not a policy that is on fair game. In fact, it is from a policy which has since been cancelled which talks about penalties for lower conditions.
There are various conditions within Scientology. I hope the court is getting the sense of the context in which we will deal with this and what Mr. Flynn is asking us to have to put on trial here. That is why I am going through this with the court, and this is really only scratching the surface.
These are the religious writings that guide the Church of Scientology that I am now having to interpret for this court, and this is only an indication of what it is and why it cannot come into evidence. This policy is not a policy on fair game. It is not a policy on suppressive persons. It is not a policy on suppressive acts. It is a penalty on various conditions, conditions relating to whether or not the person has questions or reservations. There have been written over the years by Mr. Hubbard various policy letters that talk about different conditions, and they are states of mind in relationship to Scientology; and one of those conditions is the condition of enemy. A person can be declared, within Scientology, an enemy and remain a Scientologist. And if we have to, we will present evidence from people who have been declared and are Scientologists today.
So in this context of the conditions being material in relationship to state of mind regarding Scientology in a document entitled “Points For Lower Conditions” it states:
“Mini SP Order. Fair game may be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist.”
Then goes on: “May be tricked, sued or lied to or destroyed.”
The four words that I can assure the court I have heard more times since I have been involved in Scientology litigation than any other four words one could name because it is grist for the mill of anybody who wants to be involved in litigation with the church. You take these words, you take them out of context. You throw them out. You frighten people. You say that this organization has a policy of telling people to go out and destroy anybody who is an enemy.
It is so far — this categorization which is no longer — if the court wants, and I will just represent at this point so i can cut things short, that I can go through and track the later descriptions of enemy which do not use this language. It is true and the Fair Game Doctrine that is, the use of the term “fair game” was canceled, and Mr. Hubbard said quite straight-forwardly, “It has an adverse public relations effect,” meaning that it gets misconstrued.
The doctrine that I have described, the doctrine that says that Scientology will not provide access to its internal systems for those who are opposed to it remains true.
So, in that sense what Mr. Flynn says is right, the real Fair Game Policy hasn’t been canceled. What it meant hasn’t been canceled with one modification, which has to do with the fact that any crime committed by a Scientologist today is actionable within Scientology.
I have not put forward at this point the materials that we will, if necessary, provide to the court from religious experts, from people who have been through this process, and this was not prepared in Allard, your Honor. I am sorry. It simply wasn’t. What I have just told the court and the context of this was simply not presented.
I have checked and there is no indication that a serious presentation and explanation and offer of proof of the First Amendment elements of the doctrine were involved.
If this doctrine is allowed to be introduced, you are opening the door to the introduction of religious doctrine. If they want to prove fact A, let them prove fact A. That is the normal course.
Now, the other theories, this is the real sticking point, especially in light of the court’s rulings, Mr. Armstrong’s state of mind is relevant. Mr. Armstrong therefore can say whatever he thinks. He can distort. He can refer to religious doctrine. He can do anything,
and somehow it becomes relevant because whatever is in his mind is all of a sudden all right.
The court must place some limitations on that, at least where it intrudes into First Amendment issues because you will be requiring us otherwise to try in this court the meaning of religious doctrine.
The court cannot — we have cited cases, Serbian Archdiocese, there is a whole line of cases. You cannot try religious doctrine. This court and a jury sitting there cannot determine what that means. It is not allowed, and yet Mr. Flynn stands up and says this is the most important thing. Taking the church’s religious doctrine and putting it on trial is the most important thing for their defense.
Well, if that is the most important thing, then one or another thing is going to happen. Either this court is going to allow gross invasion of constitutional rights and First Amendment rights or the court is going to require them to prove a case and to prove this affirmative defense in the normal way and not by resort to generalized claims based on internal doctrine about what this organization does and how bad it really is.
THE COURT: Well, gentlemen, I guess if I were to rule in some ways, I would be doing things that were preposterous, according to Mr. Flynn, and if I rule the other way, I will be doing things that are totally outrageous and incredible and stamping on the First Amendment. So I really probably should abdicate, but I don’t want to
do things that are either preposterous or stamp on the First Amendment.
Be that as it may, it seems to me that we come right back down to where we were and where we have been. Once you start on a logical train, you follow that logical train and it seems to me it is one thing to talk about religious principles. It is something else to talk about how they are applied in practice and how they are interpreted in practice and whether it results in conduct which may be criminal or tortious.
It seems to me that obviously the Allard case stands for exactly what is presented there and nothing more or nothing less. On the evidence that was presented there it was permissible to receive that evidence in evidence. There was no problem. The Court of Appeal bought that.
This is a different case and there may be different problems, but it seems to me coming back to why Mr. Armstrong took these particular documents and turned them over to his lawyer and/or amassed them and turned them over to his lawyer, getting into his state of mind, the reasonableness of his conduct, whether he acted in good faith, whether he was really taking them for some other purposes, whether or not as an objective matter there was some reasonable basis for his belief.
So, it seems to me that to the extent that it can be supported through testimony that this is something other than simply a religious principle, that the evidence would be admissible. So, to the extent that it affected, amounted to conduct,
I would assume we are talking about not principles but how they are actually applied in practice, in reality, there may be two sides to the coin, but it seems to me that is not something about which I can exclude evidence.
So far as credibility of witnesses is concerned of course, any time you permit evidence, you are going to have evidence that bears upon the subject of credibility of witnesses. Obviously this language that was in this 1965 or whatever certainly would be very detrimental to any witness’ credibility if he said I believed that. I accepted it and followed it.
I suppose if we are going to get into whether or not they should be received on the matter of credibility of witnesses, as distinguished from previously stated, there probably should be some evidentiary presentation before we get into that before any jury; because if that doctrine didn’t have any factual basis to how Scientologists act in relation to somebody who is given a suppression order, then, of course, the prejudice would surely outweigh any probative value that goes to credibility of witnesses.
Again, of course, I don’t know what is in these documents that are under seal. Since the source of any of these policies is Mr. Hubbard, if there is something suggested that there is some documents that are under seal in which he takes a contrary position on some of these purported changes, I presume that that would be admissible as to what this concept, this doctrine, means in practice. Certainly the Fair Game Doctrine, as you have expressed it, is certainly very ambiguous. Certainly one could interpret it in various ways.
If the person who is declared suppressed or an enemy or subject to the Fair Game Doctrine — if people within Scientology who deal with him are not subject to discipline under the rules of Scientology, that suggests or one interpretation could be that they are free to do whatever they want to do so far as the church is concerned in dealing with them. They cannot be disciplined within the Scientology system.
So, again, as it relates to how Mr. Armstrong
behaved and what he did, why he did it, I think that his knowledge of the doctrine as it applied in practice and in principle and things which may have occurred, or at least his version of what nay have occurred, to him would be admissible. It is being offered as to credibility. I think we will have to have some type of hearing outside the presence of the jury as to whether any of these particular phrases would have application.
I would also indicate that if there is any thought of cross-examining any Scientology witnesses on this witness school, again, this may have to be something which we would have to take up outside the presence of the jury to be sure there is a factual basis for it or something which would warrant going into that subject; because certainly that would be very prejudicial to present to a jury if it cannot be proved up.
MR. FLYNN: I wouldn’t ask any question like that, Your Honor, until I cleared it with the court.
THE COURT: All right. No. 9, Suppressive Person Declared or Declare either in relation to Gerald Armstrong or in general, I think we have pretty much thrashed that out already.
Mr. Flynn has indicated he wants to present the fact that his client received this communication, he was a suppressive person declared; and his knowledge or beliefs as to what that meant, it seems to me, would be relevant and material. Just in general as to other people I don’t think it would be have any bearing, except insofar as
Mr. Armstrong was aware of it and had some reason to believe that it might aply to him. So I will deny it in that sense.
The use of “Black Propaganda” — let’s take a recess before we get into that, we have been going for an hour and a half or so. Fifteen minutes.
THE COURT: All right. We are back in session. We were talking about the subject of Black Propaganda.
Is that something you plan to get into, Mr. Flynn?
MR. FLYNN: I don’t know at the present time, your Honor. It depends on what evidence the plaintiff intends to introduce to refute the evidence of the Suppressive Person Declare.
The policy basically says, and I have got it here, that you take germs of truthful information and you add on them false information, and you disseminate it to destroy the person’s reputation. It is a policy that is extensively followed, a very important policy of the Church of Scientology.
In order to keep the issues more focused, I don’t intend to get into it unless they try to introduce evidence that some of the things in the Suppressive Person Declare are actually true.
THE COURT: Okay. I will grant the motion with the proviso that if you desire to get into that, you have to do it outside the presence of the jury and establish a basis for it.
11. Alleged control by L. Ron Hubbard of Scientology organizations and finances.
MR. FLYNN: This is one of the major reasons that Mr. Armstrong was declared suppressive, and one of the major reasons he came to me, and one of the major reasons that the documents are important particularly with regard
to item number 13, and probably the key witness in the case, Laurel Sullivan, Mission Corporate Category Sort-out.
What we intend to do is simply try to introduce evidence as to in a narrow way his course of conduct and his state of mind with regard to the documents as to why he came to me. There is extensive information in this document relative to this issue. Mr. Hubbard issued a dispatch in late 1979 and early 1980 when the IRS case was ongoing, there was this fear of the shredding operation, the fear of a raid which I have already explained to the court which was the purpose of the shredding operation, to take all information that connected Hubbard to the church or particularly to organizations and finances in order to prevent the IRS and the Justice Department from getting the materials.
Now, because of that, they then entered into the Mission Corporate Category Sort-out where they destroyed some 600,000 documents which totally showed that Hubbard did control the church and which related to the funneling of approximately $250 million to Lichtenstein bank accounts.
Hubbard issued a dispatch saying that he had resigned in 1966 and that he had had absolutely no involvement with the church and had received no church funds since that period of time other than $35,000 a year as a consulting fee. Well, the documents, of course, prove total control by Hubbard during this period of time, and the witness who was in charge of MCCS, Laurel Sullivan, Mission Corporate Category Sort-out, which there are two very important tape
recordings on file in this court, these tape recordings — they are having a meeting –
THE COURT: Well, we talked about this being a possible attorney-client privilege.
MR. LITT: That is correct, your Honor.
MR. FLYNN: We claim it is waived because the tape recordings were given to Omar Garrison, and, in fact –
MR. LITT: By Mr. Armstrong, your Honor, after he left the church when he had these tapes that he had gotten while he was a church staff member which were thought to be blank. He found out what was on them. That is his testimony.
MR. FLYNN: Your Honor, the evidence will be that as part of the collection of documents they gave these tape recordings to a journalist. The case law, and I don’t have it right in front of me, but I submit to the court the case law is very clear. First of all, the party has got to assert it.
Let me back up further. First of all, it isn’t even an attorney-client meeting. Let me explain to the court what it is since we are getting into it.
MR. LITT: Your Honor, he cannot go into the conversation itself until he establishes the waiver. You cannot violate the privilege in order to establish that no privilege exists. He must prove by extrinsic evidence –
THE COURT: All I think he is saying is he wants to show that it wouldn’t be privileged.
MR. LITT: He wants to show by the contents of the
THE COURT: No, I agree you can’t do that. You can’t show it is not privileged by the contents. You have to first determine that it is either privileged or not privileged and if it is not privileged or it is privileged and then waived, then you get into the contents.
MR. FLYNN: I will confine myself to the argument without content itself.
What it was, it was a meeting of Laurel Sullivan and Alan Wertheimer, an attorney who appeared in behalf of L. Ron Hubbard.
On behalf of the church an attorney named Charles Parsell and several other individuals.
MR. LITT: Including two other attorneys.
MR. FLYNN: Including several other attorneys.
They were negotiating, one attorney representing Hubbard, Wertheimer; the other attorneys representing the church, and if the court listens to the tape this will be very clear. They were negotiating how to sort out and without getting into the contents, they were negotiating how to sort out Hubbard’s potential liability.
MR. LITT: That is getting into the contents and the point — the prima facie issue is that it was a meeting by Mr. Flynn’s own description of attorneys and clients representing different parties. He claims that there was a fear of litigation according to Mr. Flynn. He just said it a moment ago and now he wants to halfway go into the contents.
When you have a meeting between lawyers and clients, whether it is one lawyer with one client or various lawyers with their clients, it is privileged; and that is the end of the discussion, and the only issue left is waiver.
THE COURT: I am not so sure about that. It depends on the circumstances. If they are up there negotiating a contract at arm’s length, I don’t see how you can –
MR. LITT: It is not a contract, Your Honor. It related to the whole — Mr. Flynn claims that there was issues about litigation. At the time there was Internal Revenue Service litigation going on with respect to the Church, in which Mr. Hubbard was a prominent personage raised, although he was not a party to the IRS litigation. And we have a declaration that has been submitted to the court from a woman named Lisa Britowich, who was a staff member of the Church at the time, who establishes that this meeting related to the whole question of the relationship between L. Ron Hubbard and the Church, and the litigation issues involving any liabilities that may face one party or the other in relation to expected litigation or existing litigation.
THE COURT: Where is that declaration? We have so many different documents here.
MR. FLYNN: If I could just correct one thing, Your Honor. You will hear right in the tape recording –
THE COURT: It may be that I won’t be hearing the tape recording if I conclude that it is privileged and hasn’t been waived. That is the problem.
MR. FLYNN: They were negotiating movie rights and
what to do with $10 million, and there was an attorney who was clearly representing one party, namely the church, and an attorney clearly representing another party, namely Mr. Hubbard; and they were negotiating these rights, and then they got into the issue of what to do with these funds illegally funneled to a corporation called Religious Research Foundation.
MR. LITT: Your Honor –
THE COURT: Now we are getting into the substance, and we are talking about whether this is privileged or not. I don’t want to hear about it if I conclude there is a privilege.
MR. LITT: On the question of where the declaration is, unfortunately, I thought it was attached to the subject matter motion in limine. It is at least not attached to my copy, but it should have been attached to the court’s copy. If it wasn’t, then a mistake was made; and we can provide the declaration to the court and would ask that any further discussion of this wait.
THE COURT: You have an item No. 2 on your exhibits in support. This may be it. Let’s see if I can find it.
MR. FLYNN: I can tie more direct relevance in, too, Your Honor.
THE COURT: I finally found it at the bottom of this.
I have read this declaration, and I would think this would certainly create a prima facie finding or basis for finding that there was an attorney-client privilege. So I will sustain the objection at this point.
It doesn’t mean to say that if other evidence were presented to me or a question of waiver — that presents another problem. If Mr. Armstrong had these documents with permission and was authorized to turn them over to third parties, I don’t see that there could be any –
MR. LITT: That is not the case, and it is not his testimony, Your Honor. His testimony is that he was given what were thought to be blank tapes to use as a Scientology staff member in his archives post. After he left the church he took the tapes with him and inadvertently played them and found out that they had these conversations on them, and he gave them either to Mr. Garrison or Mr. Flynn. That was his testimony. That is not a waiver. A waiver has to be a knowing and intentional foregoing of the privilege.
THE COURT: I know that, a knowing, intentional relinquishment of a known right. And if he didn’t have authority to have them and wasn’t authorised to make a waiver on their behalf, the privilege can be asserted.
MR. FLYNN: Your Honor, if I could just — I will accept Your Honor’s ruling, but just bring a couple of things to Your Honor’s attention for when we get into the evidence. These tapes are quite important to our case for a number of reasons, and I believe the evidence will be totally contrary to what Mr. Litt just said. But without getting into it, one of the reasons that the problems came to a boil when Armstrong left was this document I have in front of me which is attached to some of the — it is attached to the record. It is what they tried to make him sign the day
he left the church: And the first few sentences state, “I recognize and understand that neither Ron nor Mary Sue Hubbard receive any compensation or remuneration from training or processing by the Church, that neither Ron nor Mary Sue Hubbard are officers or directors of the Church, and that neither of them are in any manner responsible for actions of the Church.”
MR. LITT: Your Honor, can I ask what we are arguing?
THE COURT: This goes, I guess, to this subject of item No. 11, alleged control by L. Ron Hubbard of Scientology organizations and finances.
MR. FLYNN: So he was supposed to sign this under oath; and then he could be made subject to, apparently, a $10,000 legal penalty if he violated it by giving out information that was contrary to what he had signed. Well, he knew, because of what he had been collecting for a year and a half and because of these tape recordings, that it was just totally false. He knew that L. Ron Hubbard had been receiving millions of dollars for years, over $200 million, in fact.
MR. LITT: Your Honor, this has nothing to do with anything. I don’t understand what this has to do with.
THE COURT: Let counsel finish before you interrupt him.
MR. LITT: All right.
MR. FLYNN: So he knew that they were making him — the organization, the plaintiff here, was trying to make him sign a document which he knew was totally false. That is one of the reasons he left the organization, and that
was his state of mind with regard to the type of activities that the organisation engaged in and would engage in against him in the future.
But, in any event, we can leave this issue at the present time, I submit the evidence from the person who ran the MCCS Mission, Laurel Sullivan, will be contrary to what Mr, Litt has just informed the court. The evidence from Mr. Armstrong will be contrary, that it was a negotiation for movie rights between two arm’s length parties.
The tape recordings themselves say that.
MR. LITT: Your Honor –
THE COURT: Well, I am not considering –
MR. FLYNN: And we have got the issue of waiver.
THE COURT: Well, at this point I will grant the motion at this time. It doesn’t seem terribly relevant.
We get into a trial as to who controls the Scientology organization and finances. At the same time, subject to the same proviso, the court will reconsider if something else develops and if we have other testimony which would cause the court to change its position on the privilege problem.
Number 12. Biographical information concerning the history or background of L. Ron Hubbard, Mary Sue Hubbard, or the religious movement of Scientology.
Well, I gather that you desire to present evidence concerning what information Mr. Armstrong gleaned from the documents concerning the background of Mr. Hubbard and Mrs. Hubbard and/or the religious movement of Scientology as the basis for his actions?
MR. FLYNN: That is correct, your Honor.
THE COURT: All right. Well, we have batted this around enough. I know that Mr. Litt doesn’t feel it is appropriate. This may be information that would be characterized as a biography of the church, hagiography of the church. I probably mispronounced that, depending on which syllable you stress.
At any rate, it seems to me in some context
it totally would be inappropriate and it seems to me in the context of this case it would be appropriate, so I will deny that request.
13. Reference to the Mission Corporate Category Sort-out, or the activities or conversations associated therewith.
MR. LITT: That is in large part these tapes that Mr. Flynn was referring to, but it is our position, and if Miss Sullivan is going to testify we are going to be inserting attorney-client privilege, information that she had was obtained in the context of acting in respect of legal interests involved. It was a mission to deal with various legal matters. That was integrally related with assistance from counsel and advice of counsel on a variety of legal matters.
THE COURT: Well, does this all have to do with what was said on the tape in this meeting?
MR. LITT: Well, I think that is the heart of what they want to do, although I don’t know whether they intend to elicit other information from Miss Sullivan in addition, and if they do, we want to make known there is an attorney-client privilege there as well.
MR. FLYNN: It can be very brief if it becomes relevant and at this point in time it is a question in my mind. We will tie it into the documents that Mr. Armstrong was supposedly forced to sign.
I should inform the court at this point that Miss Sullivan has testified already before several
governmental agencies and there are ongoing criminal investigations involving Mr. Hubbard and her testimony.
That evidence of a crime or the commission of a crime or a crime to be committed in the future which, in part, is what is involved in these tape recordings, is not protected by the attorney-client privilege in any situation, but regardless –
MR. LITT: Your Honor, this is not relevant.
MR. FLYNN: She’s already –
MR. LITT: Just a moment. This is the fifth time I have had to stand up to object to indirect reference to the contents of these tapes.
THE COURT: That might be a separate basis and might not be privileged.
MR. LITT: The court has found it is privileged. Mr. Flynn, in order to establish the court rule, has to rely on extrinsic evidence and what he does is he keeps referring to these tapes. He continues through indirection to do it, and it should not be permitted.
THE COURT: Let’s leave it at this time.
At this point you don’t intend to go into it. If you intend to go into it with a witness, you should probably take it up outside the presence of the jury before we get to this testimony and have a preliminary ruling on it.
14. Use of hearsay articles, reports and/or memoranda containing critical statements concerning the Church of Scientology, the religious movement of Scientology,
the L. Ron Hubbard or Mary Sue Hubbard.
Do you have any intention of getting into this business?
MR. FLYNN: The issue is this, your Honor, on the invasion of privacy count, if the material is already in the public record, then we have the — I believe under the invasion of privacy cases we have the appropriate defense of showing that the material is already in the public record.
Now, you could put a stack of materials 10 feet high in front of the court which relate to the critical statements concerning Scientology and L.Ron Hubbard and Mary Sue Hubbard which is what we would attempt to do. For example, this report to the City of Clearwater is some 40 pages in length with regard to information that is most germane to this case that has a lot of information that is under seal in it.
The difference between what is under seal and what was already in the public record to some degree is that most of this material is in Hubbard’s handwriting and authenticated as such, and that the organization has been claiming for years that what has been in the public record is false.
For example, Mr. Litt said to you yesterday that if the church wrote the dust jacket on these books that it published, then Mr. Hubbard shouldn’t be held responsible for it.
Well, among the documents under seal, and you
will see this from Miss Sullivan, is that Hubbard wrote the dust jacket and the handwritten biographical summaries are written by Mr. Hubbard.
THE COURT: In any event, I think we have to wait on this subject to hear what the plaintiff’s contentions — what are you going to claim actually on how Mrs. Hubbard’s privacy has been invaded, then you are in a position to perhaps defend against it.
MR. FLYNN: I agree with your Honor.
MR. LITT: I think we have to understand what we are dealing with here.
Let me take this one example, the Clearwater report. This report is a report written by Mr. Flynn. Mr. Flynn was hired by the City of Clearwater to investigate the Church of Scientology because the City of Clearwater preferred that the Church of Scientology not be in the City of Clearwater.
Extensive legislative hearings put together by Mr. Flynn were held. In these legislative hearings every imaginable derogatory statement about Scientology was made. Legislation proposed by Mr. Flynn was passed and subsequently declared unconstitutional by the United States District Court for the middle district of Florida.
MR. FLYNN: That is inaccurate.
MR. LITT: That is completely accurate. I will give the court the opinion.
THE COURT: I am not going to go down there.
MR. FLYNN: It wasn’t my legislation.
MR. LITT: No, yours was rejected.
THE COURT: I don’t really — we are beating a dead horse, but go ahead.
MR. LITT: The problem is, your Honor, that if there are documents, the only thing that they can do on the public record is not say all of these things have been said about L. Ron Hubbard or Mary Sue Hubbard. Therefore the documents are not private. That is just not permissible because as long as we are not relying on the privacy of the contents of those documents, then that is irrelevant. Therefore, all they can do is the following: If they have a document that is under seal and that is also in the public records, for example, Mr. Flynn has claimed, and I don’t know whether this is accurate or not, that he had from independent sources Mr. Hubbard’s Naval records, and that he submitted them to the Clearwater City Commission.
These were also among the materials given by Mr. Armstrong to Mr. Flynn.
And, indeed, if they can make the foundational showing, we will stipulate that that particular document under seal was — a version of it had been publicly disseminated. Other than that, this is not, in any conceivable way, relevant; and this report that he wants to introduce on the theory that you have no privacy because he has made so many claims about you, it is unbelievable. He wants to put in a report that wasn’t subjected to any judicial examination, with all of these charges and claims and statements framed by him as evidence in some form in this case, when it can’t conceivably go to the privacy issue because the documents are private and the only way that they can show that the documents aren’t private is on a document by document basis, by showing that this document is in the public record.
So it seems to me that the limitation that the court should impose is that what they can show with respect to public information is simply the issue of whether or not a particular document was in the public record. If the issue is that the Church of Scientology is a public figure, then we can deal with whether or not there needs to be any evidence on that because I don’t really dispute — I am not stipulating at this point, but that problem can presumably be resolved, if that is the theory of its admissibility.
THE COURT: Well, counsel, it seems to me that the only person here that is suing for invasion of privacy is Mrs. Hubbard; and certainly nothing in the abstract would be admissible here until we first find out what Mrs. Hubbard
says has invaded her privacy.
Then if counsel wants to present something on the theory that this is already in the public domain, I will consider it outside the presence of the jury. Then you will have an opportunity to object and counter it. Obviously a person can’t create his own, I suppose, defense on this subject by speaking out on some perceived problem, thereby making it a matter of public record.
But there are other things, certainly, in the public record, I am sure, concerning this case. The problem is really what is the plaintiff’s contention going to be and what can the defendant, by fair means, attempt to either deny it or contradict it or meet it. So we will deal with that in due course.
At this point the motion is granted.
Next is a reference to Mr. Hubbard’s unavailability or the fact that he is not a witness in this case. Well, I assume the jury will make that determination themselves if he is not called as a witness. But his unavailability, I don’t know whether anybody plans to refer to that or not.
MR. LITT: Let me explain. I am assuming that — and I could be wrong — that Mr. Flynn intends to argue why Mr. Hubbard is not here. The court should be aware that in this probate case that I discussed earlier there was extensive evidence that Mr. Hubbard was in seclusion, and the question was whether he was a missing person. The court made a judicial determination that although his whereabouts were not known to the court that he was entitled to keep
his whereabouts unknown as a matter of his constitutional right to privacy.
Mr. Hubbard has not been in the public for at least four years now, and what we are raising is simply the argument that may be advanced as to why Mr. Hubbard is not — was not produced. We don’t want these claims that he is a fugitive from justice. There is no judicial determination that he is a fugitive from justice. There is no charge pending against him, any criminal charge, anyplace; and we are very concerned that this is going to be one more of the rings of charges that we are going to face, and we do have and can provide to the court the statement of findings by Judge Hennigan that discusses the privacy right of Mr. Hubbard in that regard.
We would at least like, before any statements he wants to make in that regard, that they have to be cleared by the court.
MR. FLYNN: If I could be heard briefly, Your Honor.
First of all, to correct the misstatements in the probate proceeding, the probate proceeding is very narrow, “Is L. Ron Hubbard missing for a particular provision of the California Code?”
L. Ron Hubbard submitted a signed sworn affidavit to Judge Hennigan the day before Judge Hennigan was going to rule he was missing. Over a period of some six or seven months Judge Hennigan continually told Mr. Litt that Mr. Hubbard should either make himself available for deposition and/or submit a declaration to the court. And over a period
of six or seven months Mr. Litt failed to do so. The day before the ruling was going to be made, Mr. Litt showed up with a declaration supposedly signed by L. Ron Hubbard saying he wasn’t missing. That is the only thing that Judge Hennigan resolved.
This reference yesterday to the adjudication of the $85 million was entirely incorrect. The only adjudication was: He is not missing for purposes of this proceeding because he says he is not missing.
With regard to whether he is a fugitive from justice, a California court has already ruled that he is concealing himself from process. So that statement of Mr. Litt is inaccurate, He is a fugitive from justice in France, having been convicted of criminal fraud; and he is currently the subject of several ongoing criminal investigations. So that statement of Mr. Litt is inaccurate.
The issue before the court here is the following: Who owns these documents? Who has the right to possess them on at least the conversion count?
Well, Mr. Hubbard has sent a letter to the court in which he says, “Send them to the Church of Scientology International.” They want to introduce that in evidence under a state of mind exception to the hearsay rule which Miss Dragojevic will argue to the court to show that it is admissible to show what Mr. Hubbard’s state of mind is with regard to who should have the documents. We have been denied all discovery from Mr. Hubbard because he is hiding. We have tried to depose him. We have tried to get judicial approval of the deposition under a particular provision of the California Code, and we have been unable to do so. We were thinking of appealing it, but we haven’t at this time.
It it not that he is unavailable. The Federal Court has ruled that he is hiding. Under Section 412 of the California Code of Evidence there is a provision which relates to a party having power to produce better evidence.
Well, the fundamental issue in this case is who should have these documents. It is admitted by the parties that these are Hubbard’s documents for the most part. The person who is most appropriate to tell the court or the jury who should have the documents is L. Ron Hubbard. We believe that we should be entitled to a request for instructions to the jury that if they
fail to produce Hubbard to testify on that subject, then an inference should be made against them in the evidence that they offer according to the language of the code should be, quote, viewed with distrust because there’s already before the court a false declaration on which a preliminary injunction has been issued in this case, and they have already admitted that that declaration, which was the sole basis for Judge Cole to issue the preliminary injunction, was false.
Now, they come forward and they say, “Mary Sue Hubbard should have the documents,” or that is what she says. But in this supposed letter from L. Ron Hubbard, he never mentioned Mary Sue Hubbard. So we submit that if they don’t produce L. Ron Hubbard to say what should be done with his documents, Evidence Code Section 412 should allow us the following instruction:
“If weaker and less satisfactory evidence was offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”
So, we submit that the issue of L. Ron Hubbard’s unavailability threads through this entire case and, in essence, we are in the position of defending a case involving the documents of a man who Gerald Armstrong worked for and the man hasn’t even come forward and said, “I want the documents.”
THE COURT: Well, I am going to short-circuit this.
Time is moving on.
It seems to me that the fact that you have been unable to locate him to depose him is something you could present, but he is not a party to this action as such, and so I don’t — and further, of course, I don’t think it would be appropriate to go into the possibility of his motivations for not appearing.
I doubt that the United States has any treaty obligation with France which would require them to extradite where a person has been tried in absentia. That would be probably contrary to the fundamental principles of American justice. So I don’t think that that type of conviction, while it may be very important if he were to surface in France, would be of any particular great moment in the United States. The fact that he may be under investigation by various agencies, of course, that just gets into the area of rumor, suspicion. We don’t know what they are doing. We don’t know whether — what his defense might be and so forth, so the fact that he is not available is something that you can refer to. The fact that you made efforts to attempt to subpoena him, to depose him, you certainly are entitled to go into.
If, in fact, the person has a constitutional right to privacy and to seclude himself from other people, which is probably something that is true as long as he doesn’t violate any law in doing so, certainly no inferences could be drawn from the fact that he chooses to exercise such a constitutional right.
The jury can draw their own conclusions. I am sure they may well do so, but be that as it may, and, of course, I could not give such an instruction as you posed, although you may cite it, because he is not a party to this action and the instruction does not apply to situations even where both parties have, in theory anyway, in legal contemplation the equal right to subpoena a particular witness. Plaintiff can undoubtedly make the same contention that they have been unable to subpoena him, too. It may be the jury may not want to believe that, but be that as it may, it is something that can be touched upon in argument and it is not something that the court can give an instruction when both parties have, at least in legal contemplation, the same equal right to subpoena.
So, the motion is going to be denied as it relates simply to Hubbard’s unavailability or the fact that he is not a witness. The fact that he is not a witness is going to be obvious and the fact that he is not available, if counsel wants to develop that, can be developed.
The plaintiff wants the defendant to make an offer of proof for every witness. Well, I don’t think I am going to buy that. There may be some specific witnesses that may be a problem we should go into.
MR. LITT: Let me explain the problem, Your Honor. We will get into this more.
Actually the next section of this has to do with limiting witnesses who weren’t mentioned in discovery.
But the court should understand that the defense that the court has adopted here is not pled in this file. The only affirmative defense that exists is a defense that they were entitled to disseminate, under the First Amendment, information about Mr. Hubbard.
The defense that this court has provided permission for is far beyond the pleadings in this case. We have no idea at this point what is being permitted and what is not and what the defendant intends to introduce; and we have no reasonable notice, and we will discuss that problem more.
I am willing to defer it, because I think it may best be discussed when we have finished all of the motions and see where we stand at the end. I think that might be a better way to handle the matter; because some of the other rulings of the court, depending on what happens, also implicate this issue. So that would be my suggestion at this point, rather than my continuing to argue it now.
MR. FLYNN: My only comment, Your Honor, is that I am defending the case. Unless the evidence goes in, I really don’t know who I am going to call as a witness. I don’t know what the evidence is going to be yet. We listed them because I understand from Mrs. Dragojevic that under California procedure we have to list the witnesses we may call. But it would be entirely premature, I suggest to the court, to
go into it at this point because I don’t even know who I am going to call, because I haven’t been able to figure out what their claim is. I don’t know what Mary Sue Hubbard is claiming with regard to invasion of property. It is a mystery to me.
THE COURT: All right. We will deal with that in due course.
MR. LITT: I think the next item, Your Honor, which is also in that same motion is this question of striking witnesses. It is not listed under the subcategories.
THE COURT: Striking witnesses? Are we going to hit some witnesses?
MR. LITT: It is actually found in our motion on page 82.
THE COURT: Trial by combat, you mean?
MR. LITT: Well, it looks like you are getting your share.
THE COURT: Page 82 what?
MR. LITT: Page 82 of the subject matter motion.
THE COURT: The one we just finished?
MR. LITT: Yes, the one you thought we just finished.
THE COURT: All right. I will come back to page 82.
Okay. This court should exclude witnesses because defendant failed to disclose them through discovery. I thought I saw that somewhere.
The only problem with that, counsel, is your –
Wasn’t that a separate motion?
MR. LITT: No. Miss Dragojevic filed a motion,
Your Honor, to strike our witnesses on the ground that she propounded the question, “Who are you going to call at trial?” and we said we didn’t know. But our motion is different.
THE COURT: All right. Let me look again at it, then.
I don’t have your interrogatories and responses. I am not quite sure when these interrogatories were submitted, what the answers were, whether there is any motion to compel further answers.
MR. LITT: There was not a motion to compel further answers. They answered the questions.
THE COURT: What was the question? What was the answer?
Give me the exact words.
MR. LITT: The question was, “Identify all witnesses having knowledge about the causes and occurrences set forth in the complaint.” And it was done two months before trial.
There were other more specific ones which they objected to; and because we were too close to trial, we were not able to compel. But this question was answered by them and it listed nine people, only two of whom are on their witness list. And the thing that I think is of particular note for us is that the question asked for the causes and occurrences. We were basically just trying to get a list of who we potentially had to deal with in the case.
Now, the theory of the defense that has been put forward here today is that –
THE COURT: Do you want to give me that question again?
MR. LITT: Yes. “Identify all witnesses having knowledge of the causes and occurrences set forth in the
THE COURT: You didn’t ask him about the answer?
MR. LITT: No, it was not an inquiry about the answer. It was an inquiry about the complaint.
Remember, the theory that has been put forward here is that Mr. Armstrong did this because his state of mind was thus and such and he knew this and he knew that, and this witness is going to corroborate this and this witness is going to say that.
The question that we asked specifically asked for the reasons that he did what are set forth in the complaint.
THE COURT: If you can read that into it — I don’t.
If I had been sitting in law and motion and they had objected to that, I would have sustained the objection. It is just overly broad.
If you want to ask them as to a particular paragraph or a couple of paragraphs, whether people have knowledge of these facts, that would be one thing. But the causes and occurrences in the complaint, when you have got multiple causes of action by two different parties, I don’t think anybody should be required to just answer that in any fashion.
MR. LITT: They did answer.
THE COURT: You are asking for sanctions here.
MR. LITT: No. What I am asking for –
THE COURT: Exclusion of people who were not identified.
MR. LITT: Something has to be done, Your Honor. The
defense that the court has adopted here vas not pled. These witnesses were not named in discovery. They were not named in response to that interrogatory question. They were not named as having knowledge by Mr. Armstrong about any of the occurrences in the complaint.
We are now in a situation where, in the course of discovery, none of these have been disclosed and, furthermore, the affirmative defense — much of what the court has ruled is in issue in this case has not been put in issue by the pleadings because the public policy affirmative defense that was asserted was essentially a First Amendment defense, which was asserted essentially to the equitable claim and argued around the preliminary injunction to begin with and lost; and we are now in a posture in this case — and I am not sure of what I am suggesting to the court — where if the court is not prepared to strike the witnesses, then other relief we might request I would just defer. But I do want the court to be aware of the problem from our point of view.
There is a substantial problem in terms of our having notice of what we had to deal with in this case.
THE COURT: Well, Mr. Dragojevic, you want to respond to that?
MISS DRAGOJEVIC: Yes, your Honor. I’d like the court to know that I looked through all of your answers to interrogatories and wrote a list that came out with 40 witnesses that we listed throughout the answers to interrogatories as individuals who had knowledge of various claims. 29 of these people were listed on our witness list, so when Mr. Litt indicates that we didn’t disclose these witnesses during discovery, that is inaccurate because they were listed in answers to interrogatories. Even though they weren’t listed in the answer to that one specific interrogatory, they were throughout our answers to various interrogatories.
MR. LITT: Well, I would just point out that by her own admission, 21 were not.
THE COURT: Well, of course, you asked about the complaint. I don’t know about the answer. There may have been things that deal with the answer here.
Also, of course, one of our trial setting conference orders is that they disclose the witnesses. I guess they disclosed everybody conceivable to avoid the possibility of sanctions being applied for not complying with trial setting conference orders. I see this every day. Because they are afraid of being caught without being able to call a witness, they list every conceivable witness.
That presents a problem if you want to start
deposing people, but that goes to the character, I suppose, of our order. Well, obviously I don’t — I am not really sure. This was an expedited case. It isn’t a situation where the parties have had five years to prepare for trial.
All I can suggest, counsel, I am not going to make any blanket order precluding witnesses. If they call some witness that you feel presents an element of surprise, if they don’t appear to you to have any knowledge, approach the bench and we can discuss it. Maybe counsel can make an offer of proof if the court feels it is appropriate at that time.
So, I am not sure what the motion was. Motion to strike, I guess, is denied.
Well, we have a couple of other motions by the plaintiff. Intervenor’s motion in limine regarding admission of a prior felony conviction; is that one that we should take up next?
MR. LITT: That is fine, your Honor.
THE COURT: I have read — go ahead.
MR. LITT: Oh, that is all right.
THE COURT: I was going to say I have read it, the motion. My disposition would be that I will accept the premise that Beagle applies to civil cases and Proposition 8 does not affect civil litigation. It seems to me this particular type of a felony would be one which does relate to honesty and integrity, and that it would be a proper felony for impeachment purposes under Beagle.
Generally speaking, you can only — that is,
the person who is offering it can only go into the fact of the conviction, the date and the general nature of the conviction. If the other side wants to develop more in detail, they may do so in litigation.
I don’t know. Counsel did mention yesterday that one of the reasons for what occurred was that Mrs. Hubbard was apparently no longer available because of the fact that she was confined.
MR. LITT: That is not so, your Honor.
THE COURT: I mean, that is a factual matter. I don’t see any problem with letting that evidence in if they are going to know about the conviction anyway, that she was in custodia legis and unavailable.
MR. FLYNN: No, she wasn’t actually in prison at that point. What happened is this: Because of her conviction, she was removed by her husband from post so the key fact that occurred was the following: She proved initially that Mr. Armstrong notwithstanding her present testimony could get the documents, and we have this petition with her handwriting on it.
Subsequently there were more documents that were given to Mr. Armstrong, and the person who sent the
petition in then sent this to the person who was in the post that Mary Sue Hubbard had been in. So, Mr. Armstrong got permission — the post is called Controller. Mr. Armstrong got permission from the successor to Mary Sue Hubbard.
Now, Mary Sue Hubbard is coming forward –
we are not trying to introduce the evidence on that point to show she was in custody. We are trying to introduce the evidence to show simply the nature of the conviction, the fact and the date for impeachment purposes, but with regard to the other issue, which is a totally separate issue as to whether or not Mr. Armstrong had approval to give more documents to Mr. Garrison, which Mary Sue Hubbard is claiming he didn’t have authority to do, our position is that she wasn’t even in a position to give or not to give approval at that point in time. That it had nothing to do with her husband. She had been removed from her post. That was the cross-reference.
Now, in any event, I had further stated that because she was no longer involved because she had been convicted and for that reason removed from her post, she was not in a position to possess the documents which I think the evidence is going to be very clear on. She had no control or right of possession of any nature or description once she was removed because of the conviction, and that our position is very clear and therefore she has no right in this courtroom to come in and assert that she owns or has the right to possess the documents because, in fact, the evidence is to the contrary.
In fact, when they got their preliminary injunction, they said that they owned the documents and then she came in and asserted a contrary interest.
THE COURT: Well, it seems to me that is something the jury is going to have to determine, I suppose. But
it seems to me — do you have something further you want to add to it?
MR. LITT: Well, I want to point out one thing that was not really argued in our motion, which is in light of this defense which I have trouble quite defining, but in light of this defense somehow public interest and Mr. Armstrong’s state of mind constitutes a defense and with the information that Mr. Flynn has clearly indicated he is going to use, the fact — if Mrs. Hubbard who, as I will explain, is going to testify on very limited matters.
If the court permits the use of this prior conviction to impeach her, especially in the context of this defense, what will really happen is that the fact of conviction will be used to force the theory substantively that is being put forward here that this is a criminal organisation against whom it was all right for Mr. Armstrong to act criminally which seems to be the defense, and this brings it much more so than when we first framed the issues in our papers into the area of causing problems in terms of in a criminal case before Proposition 8 where someone is charged with a crime and you try to use a prior offense, similar offense for impeachment purposes.
In reality, given their theory here and given now what the defense in the case is, allowing that to be used will clearly have that effect and the court should understand that the credibility issues here with respect to Mrs. Hubbard are extremely limited.
Mrs. Hubbard does say that she did not realize that Mr. Armstrong had these documents; however, she does not contend that in the totality of circumstances he was unauthorized. She is not claiming invasion of privacy against him for having taken the documents from the controller’s archives and putting them in the archives of the Church or from taking them from the archives of the Church and giving them to Omar Garrison. She is claiming it from taking them from Omar Garrison and giving them to Michael Flynn.
So that the questions of whether or not Mr. Armstrong was entitled to take these documents are not in issue in the case. We are not claiming that while he was in the Church Mr. Armstrong couldn’t get the documents he got and couldn’t give them to Mr. Flynn.
The complaint has to do with what he did after he left the Church. Therefore, all of these conflicting facts that Mr. Flynn refers to we are not putting in issue. It will only come in to issue if they bring it up. So there is no credibility on that.
Mr. Hubbard has admitted that the documents are Mrs. Hubbard’s. There is no factual issue on that, and the damages claimed — we are not claiming any damages beyond the normal damages that a person would suffer under circumstances such as these. So that, in fact, the credibility issues regarding Mrs. Hubbard, in terms of the testimony that we intend to put forward by her, do not — they really don’t relate to any significant disputed facts.
In light of that and in light of the extraordinary
potential for prejudice attendant upon asking her about her conviction, in light of the evidence that the court is going to allow in on this defense, we would like the court to reconsider because I think there are circumstances beyond what were originally defined in our motion.
THE COURT: Miss Dragojevic.
MISS DRAGOJEVIC: Yes, Your Honor. Contrary to what Mr. Litt has just indicated, there are significant disputed facts with respect to Mrs. Hubbard’s testimony. Just from her own declaration and from her deposition testimony, she testified that Mr. Armstrong had no authority to use the documents in question, that she never gave him permission to copy or gain access to the documents, that he had no agreement with Mr. Hubbard regarding his personal storage and the use of documents from his personal storage.
So what Mr. Litt is saying, that there is no significant dispute of facts, is totally inaccurate. We intend to call Mrs. Hubbard, and we intend to question her about these representations that she has made under oath; and I believe that we will be able to impeach her credibility with documents that we have, which we intend to use, and with the testimony of other witnesses to show that her inconsistent testimony goes directly to her credibility and that the felony for which she was convicted also goes directly to credibility as well.
So I would disagree with Mr. Litt’s interpretation of what Mrs. Hubbard’s testimony has been throughout the discovery in this case, and I would indicate that the court’s
ruling is correct and that the admission of a prior felony conviction should come in.
THE COURT: It seems to me that we are not just trying Mrs. Hubbard’s case in a vacuum. We are trying the case of the Church, also, versus Mr. Armstrong; and while she may say things in her testimony and limit her testimony in an attempt to narrow down what she is testifying to, this is a civil action and she is a witness to, I gather, a number of matters that deal with the church’s case as well against Mr. Armstrong.
It seems to me that balancing the different interests that that is a proper area of interest or concern to the trier of fact; and, of course, it would be subject to a limiting instruction. They can consider that only for the purpose of testing the witness’ credibility.
It seems to me, further, that, of course, the court could, I suppose, say, “I will take it under advisement and we will reconsider it later on.”
It seems to me if it is likely that it is going to get into evidence counsel’s better attack is to certainly, with a jury, meet it head on and voir dire the jury on this subject. I have tried a lot of criminal cases as a lawyer, defense lawyer; and before Beagle felony convictions were always admissible, and we just took it head on. We would just voir dire the jury about it, whether that would prejudice them against the client. And my experience was, of course, you could be overwhelmed by priors; but if you hit it head on and if you had any kind of a case, the jury tended not
to pay a whole lot of attention to that, tried to judge the case on its merits and not be prejudiced.
Then, every lawyer has their own way of trying a case. I think it is something that in this case is relevant and it goes to credibility and it is part of the total picture. So I will permit counsel to go into that.
Trial motion to compel responses to requests for admissions and requests for admissions of genuineness of documents. I am not going to get involved at this late date in an order compelling discovery. Plaintiff sought an expedited trial date, and it seems to me that doing that he has to give up some of his –
MR. LITT: I would like to make one point on that, Your Honor –
THE COURT: Yes.
MR. LITT: — which is that the court should understand that the reason we could not move to compel that before the law and motions court is that we gave an extension to the defendant to answer these based on the understanding that they would be answered.
The defendant asserted Rule 333, which was no longer in effect, saying that the questions were out of time, which they were not under the new Rule 222. But because we had given them the extension, we could not move and we were not able to get an order shortening time. We could not move on 15 days’ notice. We could have done that had we not given the extension, and we gave the extension based on the understanding that they were going to answer the
requests to admit which were not out of time under the current rules.
We basically feel that it was simply unfair, and that is the reason that we have suggested it here. We feel that the issues in the case could be substantially narrowed. My understanding is that the answers were prepared, in fact, by the defense and then they realized that they could raise this out of time claim. And we just think it was unfair and that the court has discretion to determine that under all of the circumstances that they should answer it. And it could substantially narrow the issues in the trial, because much of our case is based upon the testimony of Mr. Armstrong; and if these requests to admit the genuineness of the documents are dealt with, much of the case could potentially be put on through such requests.
THE COURT: Well, what about that?
MS. DRAGOJEVIC: Your Honor, this issue has already been litigated before Commissioner Stoutt. We appeared before him on an order shortening time so that they could get this motion heard. They put before him the same exact argument which they put before this court, and he indicated that they did not have sufficient good cause for the order shortening time to get their motion heard.
The fact that I have indicated that we have answers prepared is not accurate. I never indicated that we have answers prepared. I indicated to Commissioner Stoutt that we would have extensive objections to the request for admissions and the request to admit the genuineness of documents. I have never indicated to anyone that we had the answers prepared.
These responses would have been due since they were served on February lst, they would have been due on March lst. At that time we had a trial date of March 22nd. Commissioner Stoutt felt that they had placed themselves in the position where they had put themselves against the clock and against the wall, and that I shouldn’t have to respond to these things, so this has already been before the Commissioner and he has made a rule on it and he is aware of Rule 333 and what it provides for and still indicated that the motion would not go forward.
THE COURT: Well, I am disinclined to get involved in discovery at this time. After all, people are here.
They are trying to get their case ready for trial.
If they had to devote themselves to dealing with all of these problems and then coming back and arguing further on it, I think it would take longer to do than to probably try the case.
Motion is denied.
There is a request to take judicial notice or to hold evidehtiary hearings that Scientology is a religion. Now, at this point I don’t really know what the significance of this would be. Why we would — I have indicated there is plenty of case authority indicating certainly that prima facie the Church of Scientology of California is a religious institution and I have no idea or understanding that the defense is going to actually attempt to show that they are not.
MR. FLYNN: I won’t, your Honor. I think that will obviate the issue.
MR. LITT: No, it doesn’t obviate the issue.
It is important, both in terms of the foundation for the court’s rulings on the First Amendment issues that there be a determination of religiosity because we have a substantial First Amendment issue in this case which is bottomed on the status of the Church of Scientology as a religious institution and the status of Scientology as a religion, both of which are entitled to the protection of the First Amendment.
Secondly, we intend to introduce evidence that L. Ron Hubbard is the founder of the religion of Scientology. We don’t intend to introduce evidence that
it is a religion, but we want the jury to be informed that it is a religion.
If Mr. Flynn wishes to stipulate for purposes of this case that it is a religion, that is fine. If the court wishes to take judicial notice of it in the absence of Mr. Flynn’s presenting any contrary evidence, that is fine. But I think we are entitled to the determination for purposes of this case at least.
MR. FLYNN: I don’t think it is an issue in the case, your Honor. I don’t intend to stipulate to it.
I don’t want to go into any lengthy evidentiary hearing. I don’t intend to introduce any evidence that they are not.
If they introduce evidence that L. Ron Hubbard is the founder, I will introduce evidence that L. Ron Hubbard says he is not the founder. It is that simple. Whether they are a religion or not is an extremely complicated question that needs not even concern this court and even perhaps the more complicated issue under the laws of most states is whether they operated as a religious organization.
You can have a group of people that subscribe to a collection of beliefs, and they can theoretically be “a religion,” but whether the corporation organization that is embodied within those groups of people operated as a religious organization, which is the subject of extensive litigation involving the IRS and other jurisdictions, is an altogether different issue. But I don’t believe the court is even involved in the issue.
I will introduce no evidence that they are not a religious organization.
MR. LITT: Your Honor, one of the opinions there is an opinion by the United States District Court from the Central District of California. Mr. Flynn and Miss Dragojevic represent the plaintiffs in that case on summary judgment, not even on the evidentiary hearing which is the real standard, but on summary judgment where the issue was contested. The court found that Scientology was a religion.
We have given the court also the Australian opinion which relies extensively on the United States First Amendment cases which all the way up to the Australian courts Scientology was held by lower courts to not be a religion, and the unanimous opinion by the high court of Australia it was found to be a religion.
We feel that it is important that there be a determination of this issue for purposes of this case, both in terms of framing the defenses and also because we are entitled to have the jury instructed on that and we are going to be asking for jury instructions.
Keep in mind what has been allowed to be brought into this case.
THE COURT: You don’t have to remind me. I have been sitting here for a day and a half.
MR. LITT: We are not going to be trying religious doctrine. The court has already ruled on that. There is going to be a whole series of supplemental jury
instructions on the First Amendment on this case at this point, and we are clearly entitled through whatever procedure the court wishes to follow but we are entitled to a resolution of this issue and we are entitled to it by the court.
THE COURT: Well, I will take judicial notice of –
whatever your attachments are. You have a case of the Church of Scientology of California, U.S. Court of Appeals, District of Columbia Circuit.
You have got an exhibit 2, but there is nothing there.
MR. LITT: There is not?
THE COURT: I don’t know what exhibit 2 is.
MR. LITT: I’m sorry about that.
THE COURT: Exhibit 3 is something from the U.S. District Court, Judge Marshall. Attached to that maybe there is something — we have a high court of Australia.
I can’t take judicial notice of that.
MR. LITT: I am asking –
THE COURT: It is not certified, and I don’t know anything about it. But I will receive those as evidence in this case on this issue. There is no contrary evidence.
So I will find that on the evidence presented to me that plaintiff here is a religious institution.
Does that satisfy you?
MR. LITT: That is satisfactory, Your Honor.
THE COURT: I think that is all of the plaintiffs’ motions. Now we have some defense motions.
Okay. I will take up the motion to preclude use of witnesses not disclosed in discovery, memorandum of points and authorities — it’s time to take a recess. I have to look at the clock once in a while. I will see you at 1:30.
MISS DRAGOJEVIC: Your Honor, we are going to waive that motion.
THE COURT: It is a good thing you waived it. I was going to deny it.
(At 11:57 a.m., a recess was taken until 1:30 p.m. of the same day. )
LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 20, 1984, 1:31 P.M.
THE COURT: All right. Well, the defendant’s motion to preclude is withdrawn, so set that one aside.
MR. LITT: Your Honor, before we go on to the next defendant’s motion, there was one area that we discussed and the court said to reserve until the end of the motions in limine that we were making. That had to do with this issue of the marital agreement between Mr. and Mrs. Hubbard.
This marital agreement, I have never seen it, but as I understand it the marital agreement is an agreement that says that in the event, the desire of one party for a divorce, the other party will give them a divorce. That was 31 or 32 years ago, ‘3 years ago, whatever, and not make any property claims. The Hubbards remain married.
The agreement is really nobody’s business. It has no probative value, and we would like an order excluding the agreement.
THE COURT: Do you have any intention of offering it, counsel?
MR. FLYNN: Well, first of all, that is not what the agreement says. The agreement says that Mary Sue Hubbard — it is strange language. I don’t know whether Mr. Hubbard drew it or someone else drew it.
But it says that she has no claim to any of his property. Secondly, there’s been extensive litigation
in other jurisdictions as to whether or not Mary Sue Hubbard and/or L. Ron Hubbard are residents of the State of California with regard to the community property provisions of the State of California.
They have taken the position in these other jurisdictions that Mr. Hubbard is a nomad and is stateless for purposes of jurisdictional questions that have arisen elsewhere. Since he is stateless by their own admissions, we contend that there is no property claim that she has in his property; and since it is pretty much admitted that almost all of this material is his property, we think that that is probative on the issue of whether or not she can make any claim to it.
The marital agreement would be additional probative evidence of that, that she has no claim to his property. So for that limited purpose we submit that it is admissible.
MR. LITT: There are mutual agreements, Your Honor.
One was signed by Mr. Hubbard; one was signed by Mrs. Hubbard. They are identical agreements. Mr. Peterson has seen both of them. They are both under seal. They just have no relevance.
After 30 years of marriage, to contend that the joint property collected in the course of the marriage is somehow not joint property on the theory that if someone wants a divorce, which no one does, they can’t make a claim to the other’s property is — I don’t know what it establishes.
THE COURT: I don’t know. It is hard for me to evaluate this without actually knowing the precise language and context within which it is used. It may be that they are speaking in terms of what they start out with at the time of marriage and not with relationship to after-acquired property. I just don’t know whether they are each waiving any rights
in futuro. In order for that contract to be valid in California, certain requirements have to be met.
Certainly without some type of preliminary hearing to determine its validity, lawfulness and relevancy, there should be no reference to it. I would have to see the agreement.
Was it adopted purportedly in California or some other place?
MR. FLYNN: See, the problem is: Mr. Litt has gone into Florida and Massachusetts jurisdictions claiming there is no community property interests between the Hubbards to defeat jurisdiction.
MR. LITT: I haven’t claimed that, Your Honor. Do we want to get into this?
We claimed very simply that it cannot be established that Mr. Hubbard has a domicile in any state and that, therefore, diversity jurisdiction does not lie, period. That’s all.
THE COURT: I think that property in California, under the public policy of the State of California, held by married people is ordinarily treated as community property or quasi-community property, which is California’s determination that that is the way people will hold property if they are married, if they have it in California or if they have property in other states over which the California court has in personam jurisdiction over the other parties for the purposes of dividing property at times of divorce and so forth, without any kind of in rem jurisdiction of property in some other state.
We are talking about property that is in California and held by one of the spouses, and most of these old prenuptial agreements that I have ever seen when they got to court were usually held to be invalid for one reason or another.
As I say, we are not seeing it and hearing what the circumstances are and checking the law regarding
I’d have to say don’t get into it without coming up here and discussing it and we will see what it is all about.
MR. FLYNN: Fine, your Honor.
THE COURT: Now, the motion in limine to exclude the letter of February 3rd.
Well, I don’t know what the contents of the letter are. Nobody furnished a copy of it.
MR. LITT: I realize that. I have a copy for the court.
THE COURT: Can you give it to the clerk and let me see what it is all about.
MR. LITT: The court has three pages there. The top page is a typed version of the letter. The bottom
two pages are a Xerox of the letter itself, handwritten.
THE COURT: Okay, let me see it.
Well, I will read it into the record:
“Los Angeles County Superior Court
“Los Angeles, California
“3 February 1983
“It has come to my attention that in a legal proceeding in Los Angeles Superior Court many of my personal letters, manuscripts, military and other historical records concerning me or alleged to concern me have been impounded by the court due to a question of rightful ownership.
“Some years ago I loaned to the Church of Scientology many of my personal papers and entrusted them with the custody of these. Many documents were held by me but due to the fact that my writing and research over the past several years has precluded my establishment of any permanent residence, I was too short of space in my baggage to retain them and entrusted my personal papers and such to the Church of Scientology for safekeeping and storage.
“I hope I have set the record straight and would sincerely appreciate your assistance in assuring that my belongings are returned to the church or their legal representatives.
“L. Ron Hubbard.”
With a copy to the president of the Church of Scientology, Int.
Well, I don’t know what the plaintiff would want to offer this for. Certainly, so far as the issues involved in the tort counts, assuming that a foundation of authenticity could be established, it is hearsay as to what he did some time in the past, and it would not be admissible.
So far as the issues that might be concerned with the dealings with the equity proceedings, it seems to me it would be probably relevant to show his present state of mind as to what he’d like to have done with them. To that extent, that is something the court would be willing to consider, but that would be the only purpose for which it could be received and that would only be in relation to the decisions the court would have to make on the equity case in the jury trial.
MR. LITT: Your Honor, on the damages claim and on the equity claim, too, I suppose, the defendant contends that he had a contract with Mr. Hubbard. He evidences that contract by a one-line response to his petition. It is not a contract, but that is his theory, which says, “Fine. Take this post, good luck,” or something like that.
But he is contending that he had a contract with Mr. Hubbard. This letter is relevant as to Mr. Hubbard’s state of mind at the time that the documents were entrusted to the church as to whom they were entrusted.
THE COURT: Hearsay for that purpose.
MR. LITT: No, it is his understanding.
THE COURT: Don’t tell me “no.”
I said it is hearsay. You can say you don’t believe it is or you would urge that I not so find, but I am telling you it is hearsay.
MR. LITT: I understand it is hearsay. What I am suggesting to the court is that it is an exception to the hearsay rule as to his state of mind.
THE COURT: Not as to something that transpired some years before. It would be a clearly hearsay purpose to show that he at some time before loaned the Church of Scientology any of these personal papers and entrusted them for safe custody. If you are talking about a state of mind when he wrote this as to what he wants to do with these papers, fine. That would be something that doesn’t deal with something that transpired years ago over which there is no opportunity to cross-examine and so forth.
MR. LITT: Your Honor, under Section l252 of the Evidence Code, “Evidence of a declarant’s state of mind, emotion or physical sensation at a time prior to the statement is not made admissible if the declarant is unavailable as a witness, and the evidence is offered to prove such prior state of mind, emotion or physical sensation when it is itself an issue in the action.”
We are –
THE COURT: His state of mind is nothing unless it is dealing with whether he loaned to the Church of Scientology his personal papers and didn’t enter into a contract with Mr. Armstrong. That’s clearly hearsay. That isn’t just to show a state of mind. It is to show that he didn’t do these things. Produce him and he can testify to it.
MR. LITT: In order to have a contract, Your Honor, you must have a meeting of the minds. Therefore, if Mr. Armstrong is going to contend, as he does, that Mr. Hubbard’s written response to him constitutes a contract, then in terms of a statement made now as to his understanding of what he did with the documents in the past, his state of mind — I am not saying whether it is true or not; but as to his understanding, he reflects in the letter his view that what he did was entrust these to the Church.
Since the defendant is contending that there was a contract, which requires a meeting of the minds, Mr. Hubbard’s then existing state of mind is relevant. This is a statement concerning his past state of mind, and it seems to me that under that theory, and only for that purpose,
it would be admissible.
THE COURT: It doesn’t deal with state of mind. It deals with whether or not he loaned to the Church of Scientology these papers or whether he did something else with them, and that is clearly a hearsay purpose. You can’t say that from this you must conclude that some time ago he had a lending state of mind as distinguished from a contracting state of mind. That isn’t what we are talking about.
There is no way that this can come in without being used for a hearsay purpose, and that would not be proper; and I wouldn’t receive it on these tort causes of action.
So that issue will be granted.
MR. LITT: That is on the damages claim only, I take it?
THE COURT: Yes, on the tort causes of action. So as far as the problems that I have to deal with about what I want to do with these records, it certainly would be relevant as to his state of mind as to these papers and what he wants done with them. The extent to which the court is going to be influenced will depend upon all the other evidence that is presented.
MR. FLYNN: Your Honor, just on that last point, we would be prepared to show at the appropriate time that he is not unavailable, that he is in daily communication with the people that are running this lawsuit.
THE COURT: Well, obviously there would have to be a foundation laid for its admissibility. I am assuming, without saying it is or isn’t, they can lay the foundation.
Notice for motion for leave to amend answer, declaration of Miss Dragojevic. On these, matters my tentative decision would be to — I don’t know whether anybody is aware of it, but apparently I struck, when I was sitting in law and motion one day, the answer of the defendant to the intervenor as to that subject. I gather it was just because it was a bare conclusion, it was asserted; and I gather there was never any amendment. But be that as it may, as to the tort causes of action, I don’t really think it is particularly appropriate.
At the same time, as far as the equitable action is concerned, whether it is amended or not, I think all of this would be before the court in a sense because the court has to determine what is fair and what is just.
Does anybody want to be heard further on that?
MR. FLYNN: Your Honor, I don’t believe we added anything on the tort causes of action. On the equitable, I think Your Honor’s last observation is basically the nature of the situation.
MR. LITT: Well, let me start by saying I am not clear what the indication from the court was.
THE COURT: Okay. What I am saying is: Even though unclean hands arose out of equity, it can be asserted as a defense to a legal cause of action in law in this state at this time. All I am saying is: I don’t think that I would permit it to be asserted against the tort causes of action; but since the court will have to deal with the injunction, it seems to me that all of this is going to be
before the court anyway, and it almost doesn’t require an amendment as far as what evidence is going to be presented.
MR. LITT: Your Honor, we have –
THE COURT: I am probably disposed to permit it to be pleaded because I can’t see that there is any prejudice, because the court is going to have to deal with what is fair and equitable on the injunction, anyway.
MR. LITT: Well, there is substantial prejudice, Your Honor, which goes to the whole way that the issues have now been framed in the case.
The striking of the unclean hands defense eliminated precisely the issues that the court is referring
to, since it was the only affirmative defense pled that could potentially get into these issues. That is one problem.
We consider that the approach that allows unclean hands to be pled is prejudicial. Furthermore, we think it is not permitted under the law. The claims here concerning the shredding, which is what was originally put forward as the basis for unclean hands, does not have to do with the issues in this case. We have already quoted to the court Mr. Armstrong’s testimony that the events of the alleged shredding occurred more than two years prior to the issues in this complaint.
THE COURT: Well, I am not impressed with that as any kind of a basis for an unclean hands defense. My
conception would have to be the idea that if there was anything that was done in a physical sense to attempt to retrieve these documents that was tortious or criminal or — it seems to me that would be more in the nature of what I would consider the appropriate clean hands defense as to retrieving the records.
In other words, if the people have a dispute and then go to court and seek to obtain their property back through the civil processes, I think that that is appropriate. If they seek to use self-help in the sense that they go out and harass somebody, and I am not saying it was done. I am saying this is taking the defense evidence that they have harassed or threatened or intimidated or thought to be intimidated, then I think that that goes to the question of clean hands in that respect.
It goes to the question of the extent to which I think the court should consider equitable relief.
MR. LITT: Well, the only thing I can say to the court in that regard is that we have never considered, given the pleadings in the case and the rulings striking these answers, that that was a defense in this case. We have not prepared the case on that basis, and we do believe that it constitutes prejudice to us.
MR. PETERSON: May I be heard on that just a moment?
THE COURT: Sure.
MR. PETERSON: Part of the reason why Mr. Litt was
designated by the Church, which is my client, I have represented the church all along in this matter and in other matters, too, but in reviewing the case specifically on the unclean hands defense, this is about, I think, the fourth time that this unclean hands defense has arisen.
It came in the first answer. We moved to strike it. The court struck it. They asked for a reconsideration, I believe. The Judge says — he struck it again.
Mary Sue Hubbard filed her cross-complaint. There was a — her complaint in intervention, I should say, where unclean hands was raised. The court, that may have been the time you struck the unclean hands defense. It was struck then.
THE COURT: Well, with leave to amend. I don’t think it was ever amended.
MR. PETERSON: At one time it was granted without leave to amend, and then again about three weeks ago, Miss Dragojevic brought it as part of an ex parte order shortening time, and the court again denied that opportunity.
So, after having it denied four times, the church thought, well, it isn’t going to be an issue in this case. The church’s conduct will not be an issue in the case. It will be a simple case on the conversion torts and invasion of privacy torts, and Mr. Litt was then asked to prepare the case.
We are totally unprepared, as Mr. Litt has indicated, and we would have to at this point have independent
counsel represent the church and not continue having Mr. Litt litigate the activities of the church when he hasn’t prepared it and we haven’t prepared it, so I just think that should be brought to the court’s attention.
MS. DRAGOJEVIC: I’d like to clarify a few things because I was present at all the hearings regarding motions to strike the affirmative defense.
First of all, the defense was originally stricken because the court felt we had too much material, too much extraneous material in the affirmative defense that didn’t relate to the action and, of course, that was because we had just entered into the action. We really didn’t know what the scope of the case was going to be, as your Honor has indicated numerous times, the case has moved very quickly.
At that time we just put in whatever we thought might apply. The Judge indicated that he thought it was too overbroad and struck it, but we did get leave to amend. We amended, this time only putting in a line that said, “Plaintiff is liable for unclean hands,” something very simple. It really didn’t elaborate or go into anything.
We went into court. At that time the Judge said, “Well, now, this time you haven’t given me enough. Last time you gave me too much. This time you haven’t given me enough, so I am going to strike it again.”
At that time we had filed the same affirmative defense to the complaint in intervention, and it was stricken, I think, by you, your Honor, I think for the same reason
that it just didn’t give enough.
All of the motions were granted with leave to amend. We held off amending, so that we could kind of put together what we wanted to say. We have always, in every paper filed in front of the court, whether it was on motions on the preliminary injunction, motions to modify the preliminary injunction, motion for summary judgment, whatever it was, we have always indicated that we feel there is an unclean hands defense. It has always been in our papers, and I think if the court looked through the papers, the court would see that.
Plaintiff and intervenor have always been on notice that that has been our position. When I went in for the order shortening time, it was shortly before trial. Commissioner Stoutt just felt that there wasn’t good cause for the order to shorten time. He didn’t make any remarks about whether the affirmative defense was appropriate or not. His role there was simply to indicate whether I had good cause for the shortened time order.
So, we didn’t get a chance to have it heard and I felt that since these types of things can be brought even during trial that we could bring it up to the trial court, which is what we have done, but they have always been on notice that this is one of our defenses and it hasn’t been stricken for any substantive reason. It has only been stricken for procedural problems in the past.
MR. FLYNN: I’d like to add one thing, if I could, your Honor.
Mr. Armstrong had been deposed on five full separate days in this case. His counsel, namely me, has been deposed on two days. Miss Dragojevic has been deposed. Mr. Bunch has been deposed.
We have been unable to depose Mr. Hubbard, and we are the defendants in the action. Mary Sue Hubbard was deposed for several hours, and if your Honor saw the transcript, virtually every question we asked was objected to.
We have been given almost no discovery and having been involved in discovery extensively in the last
four years against the Church of Scientology, virtually every avenue of discovery that one seeks, one gets the First Amendment defense, every defense that can be interposed under modern jurisprudence.
It is very difficult but more importantly it is very costly to try to obtain discovery from either the plaintiff or the intervenor. The intervenor was in prison for a time and unavailable.
Mr. Armstrong, as the court knows, has no money, so it has been almost impossible to get any discovery from the other side.
On the other hand, they have had full discovery from Mr. Armstrong, from his counsel and from every other witness that they wish to depose, and they have pushed this case forward as rapidly as possible.
So, for them to now come into court and claim that they have been prejudiced in discovery is simply
MR. LITT: Your Honor, there has not been a single order in this case which has found that there was even an improper objection to discovery. Mrs. Hubbard answered virtually every question asked in her deposition. I told Miss Dragojevic that she could reschedule the deposition. She did not schedule a second day of deposition. She was available.
The statements made concerning discovery in this case are simply not supported and it is a typical problem. There is nothing in the record to support these claims made concerning how we have conducted ourselves in discovery, and as to our awareness that they made certain claims of what should be in the case, of course, we were aware of that. We were also aware of the rulings that the court had made and we were relying on the state of the pleadings.
THE COURT: Well, I don’t envision that my permitting this on the equitable cause of action is going to open the door to any evidence other than what we have already talked about in this case. Technically it is something that should be a part of it and I don’t envision that this goes to open the door to any new evidence that I haven’t already discussed and I would consider appropriate to permit.
MR. PETERSON: What it has done, Your Honor, it has opened up new evidence of 21 witnesses that we knew nothing of. Miss Dragojevic said that 21 of the 50 witnesses on her list never showed up in any of the discovery. So we have no idea. We relied on the court’s ruling that unclean hands would not be a defense in this case.
You gave these defendants ample opportunity to amend or seek to amend and correct the mere technicalities, as they call it — I call it a very substantive thing that they didn’t correct — and they didn’t. And here we are on the eve of trial, and it is coming in; and the equitable part of this case is equally important to us as any other part of the case.
THE COURT: Certainly it is. I am not suggesting it isn’t. But the court is going to hear this evidence anyway, so the court is going to have to make its own determination. If it feels it is appropriate, it will deal with it, if it considers it appropriate.
MR. PETERSON: It doesn’t go to the court’s ability to hear it and react to it. It goes to our ability to prepare and defend against it. We will walk in unarmed and unprepared for whatever the defendants want to put before the court. The court will take it, and we have not properly prepared a defense. We are prejudiced. We are being put on trial. We are the defendants under those circumstances.
MR. FLYNN: I can clear that up. Whatever we have talked about so far that Your Honor has ruled upon is the scope of the factual evidence that will be put in the record.
How that gets legally interpreted in terns of the unclean hands doctrine, I submit to the court, is a technical matter.
But our evidence will be limited to basically what we have talked about.
MR. LITT: I think, Your Honor, we understand the court’s ruling. I want to explain a problem that we have at this point and make a suggestion to the court.
In the course of this two day hearing, as we view it the court has defined the issues in this case in a way that was substantially, as we understood it, beyond the pleadings in the case. The only affirmative defense that conceivably could relate to this that was in the case throughout the case is the affirmative defense that the defendant — it is the seventh affirmative defense, that the defendant had First Amendment rights to disclose this information.
We at this point, having now heard the court’s rulings and having heard how the issues are defined, frankly need the opportunity to consult with our clients on several different issues that are implicated by the court’s rulings and to come back to the court and make a suggestion of how we think they should be handled, at least as we see it. Those include issues that Mr. Peterson raised with respect to whether, from our point of view at this point, we want to have separate counsel represent Mrs. Hubbard and the Church; because some of the rulings that the court has made raise, in my mind, trial tactics questions about whether it is desirable to have joint counsel, which we didn’t feel was
a problem as we viewed the permissible scope of the evidence in the case based on the pleadings in the file.
Secondly, the ruling of permitting unclean hands and, in general, the scope of allowing claims about misconduct to become an affirmative defense in the case, we need to discuss with the clients what the implications of that are, what the implications are for the damages case, what the implications are for the equitable relief case and what posture we wish to take with respect to that.
The court has made rulings which we feel implicate serious constitutional issues and whether we want to seek any remedy at this point is an issue that needs to be discussed.
What I am raising with the court is that now that we have gone through this series of motions we need
basically to go into the beginning of the week for us to be able to consult with out clients and come back to the court and at least state what our position is with respect to any of these matters and what effect it has on the trial, as we view it; and if we have any motions that we wish to make in regard to this, based upon the court’s rulings, that we have the opportunity to make them at that time.
So what I was going to suggest at this point was that this matter — both Miss Dragojevic and I have an appearance in Federal District Court on Monday morning in another Scientology case, same case, involving a summary judgment motion on a First Amendment issue which has been continued three times.
So I would like to suggest to the court that we do the following: we go over until either Monday afternoon or Tuesday morning. We have a chance to confer with our clients on all of these issues and see if we have any requests to make of the court at that time.
Mr. Flynn and Miss Dragojevic prepare the list of documents that they intend to introduce as we discussed before so that we would know what documents we are dealing with.
When we come in, one of our requests may be based on some of the factors that I have talked about before that the court require some kind of a specification of proof or limitation of evidence just to define what are the facts and issues in the case. I don’t know. We haven’t had a chance to really go through all of this in light of the full scope of all the court’s rulings and we see exactly where we are at this point. If we have any requests to make of the court, that we would make them at that time and also Mr. Flynn mentioned earlier that he was considering a jury waiver. We would like to know whether that is their position or not and if it is their position, we have not had a chance to discuss our position with respect to that with our clients either. So essentially what I am saying at this point is that now that we have completed going through the advance motions, that we come in and have a discussion with the court and we will be prepared at that time to set forth our position on any of the issues that have been raised so far.
MR. FLYNN: Your Honor, I am not sure I understand what is going on, but the position that they have with regard to everything that has gone on so far has already been set forth in probably 200 pages of briefs which have been ruled upon, which also would suggest that they have been thoroughly prepared for this case all along as is obvious from the amount of paperwork. They knew that these were the issues and they have extensively briefed them and litigated them for a year and a half before this
With regard to bringing another counsel in at this point, we waived our motion, which they objected to, to have separate counsel because we believe, even though we have waived it, that there is a conflict. But they chose to go forward with one counsel.
If all we are talking about is the amount of time between now and Monday afternoon, even though I have been out here for two weeks so far and we really haven’t heard any evidence, I really have no objection to that. If, however, the suggestion is that they are now going to file more motions to re-review everything that’s already occurred, which is kind of what the suggestion was because Mr. Litt indicated that he wanted to find out from his client what their position will be. Well, the position is already established as to what the framework of the case is, then I would object to more motions on something we have already argued about.
On the jury waiver issue, basically our position
is this: We think that if the case was litigated in front of the jury and all of the issues that legitimately have to be put forward for Mr. Armstrong, we would be here a lot longer because of side-bar conferences, voir dire hearings and similar efforts to try to sanitize or constrain the evidence.
For that reason — your Honor is probably now more familiar with this case than any other judge has ever been, and your Honor is probably the only judge who has read everything.
We think that at this point we are prepared to waive our jury claim.
Mr. Litt, on behalf of the intervenor, and Mr. Peterson on behalf of the church did not file any jury claims in the action. Exactly what posture that leaves them in, I am not precisely clear. Whether they could pick up the jury claim is some question that I have, but in any event, we are prepared to waive it because we believe, as I said from the very first moment in chambers and the very beginning of my argument, what this case is about is what is in the documents and how they should be preserved. That is what the case is about.
Most of these other claims are just basically fluff to try to affect outcome. That is really at the heart of this lawsuit. For that reason we think that a jury-waived trial would be appropriate.
Whether or not that is going to require more than one afternoon to change the posture of the case
as far as the intervenor and the plaintiff see it is something that does bother me to some degree. If they come in and claim that well, now, because we are waiving the jury, they are going to need another week or two to try to prepare the case, then I would have severe objections to that.
If the state of the record today is going to be left that we are going to adjourn until Monday afternoon and we are going to come back in and we are going to proceed with the jury-waived trial, then I have no objection to this, apparently it is a request for continuance and I have no objection.
But if it is an effort to buy several weeks of time, then I specifically bring up the following point which I’d like to put on the record at this time. If they are going to claim that what they have got to do is acquaint and educate new counsel and they are going to need weeks of preparation to do so, then I have a strenuous objection to that, if that is what is being done because that, I will submit to the court, is what has been done on almost every Scientology case once it gets to trial across the country. As soon as the case comes to trial, new counsel appear. Old counsel go out and continuances are requested. That has almost uniformly occurred, and if that is what is going to happen next Monday afternoon, then I strenuously object.
MR. PETERSON: First of all, your Honor, there has been no other Scientology case come to trial. There has been no case across this country where at the last minute
during trial an attorney has been substituted in. Mr. Flynn is painting this parade of horrors. We are not, and I will repeat, we are not going to ask for any extension of time based on the fact that we have to bring in new counsel and reacquaint that counsel with the trial.
That will not be our request. We didn’t ask for it, and we will not ask for it.
THE COURT: This has nothing to do here, but obviously we are not going to start the trial this afternoon, and Monday is just a few days away, so it is no big deal.
If you have got to be in Federal Court, we in the state system here are stuck with the fact that the Federal Court doesn’t recognize we exist, so –
MR. PETERSON: If I may interrupt a second. I was not sure. I mean it sounded to me like Mr. Flynn was waiving the jury; but as we indicated, if he in fact is waiving the jury, I would like that to be made clear so that I may go back to my clients, inform them of the ramifications of requesting a jury.
I am not sure the court would grant us the opportunity at this time to have a jury if we requested it.
THE COURT: Counsel, if either side wants a jury trial and they want to pay for it, they can have a jury trial.
MR. PETERSON: I have to explain that to my clients if, in fact, he has waived it.
THE COURT: The only way we can deny a jury trial is if you have no jurors. We have jurors by the score, by the bushel.
MR. PETERSON: Has there been a waiver?
THE COURT: I took it as an offer to be a waiver.
MR. FLYNN: It is a waiver, Your Honor.
MR. LITT: I didn’t expect that we were going to go any further today. I just wanted to indicate to the court
that we are not making any requests at this point. We just feel we need to have a conference with the clients. We may have requests that relate to petitioning for a writ. We haven’t made any determination of that. They may relate to whether or hot we have had an adequate opportunity to prepare. They may relate to several things. I just wanted to give the court an idea of what the concerns were for us, not make any requests at this point, and say that we would raise whatever we have to raise on Monday afternoon.
THE COURT: Okay. What time will you be through over at the Federales?
MR. LITT: If we get through in the morning, we should be through by 12:00 or 12:30. Normally the law and motions calendar on civil matters is heard Monday mornings and theoretically finished Monday mornings. It is not always finished, in fact, Monday morning. Judge Marshall has continued this particular motion three times. It is substantive. I don’t have any information on this. It is possible –
THE COURT: You tell her that her former colleague, Judge Breckenridge would like to have you at 1:30.
MR. LITT: I will certainly pass it on, Your Honor.
THE COURT: I guess we have run out of steam here today.
There was a motion to amend an answer. I will allow the amendment as it goes to the equitable causes of action only, not to the legal causes of action. The basic reason is that I feel that there is nothing new as far as facts are concerned, having been discussed between the parties
for a year and a half the case has been pending. Apparently Armstrong has been deposed numerous times and his story has been told, I have to assume, and that there is nothing new that has been stated. Maybe the inflection is different, maybe the emphasis is a little different; but I assume the story has been reasonably consistent during this period of time.
It seems to me that when you are applying a legal tag to some facts it is the facts which are important, at least insofar as the discovery phase is concerned; and the parties should be prepared to anticipate the facts may give rise to different legal concepts and they should be prepared on legal concepts rather quickly. I don’t think that it is the facts that create problems.
It seems to me reasonably I can conclude that all of Mr. Armstrong’s contentions, the version of what
occurred, has been dealt with rather thoroughly in these depositions.
Insofar as the plaintiff has moved to expedite the case and the court has attempted to accommodate the plaintiff, and we have been here yesterday and today and then there were two days the court spent reading all these documents after you came here Monday some time — so there has been a week of the court’s time already devoted to this case — my disposition, of course, is that the case should move forward.
On the other hand, I am not going to prejudge any motions that you might submit which you, after consulting
with your clients, feel are appropriate in the interests of your clients. After all, that is what a 1awyer’s job is, to deal with situations as they arise and bring proper matters to the court.
So with that I guess we will just trail the matter, then, till Monday, hopefully at 1:30.
MR. LITT: Thank you, Your Honor.
MISS DRAGOJEVIC: Thank you, Your Honor.
MR. FLYNN: Thank you.
(At 2:10 p.m., an adjournment was taken until Monday, April 23, 1984, at 1:30 p.m.)