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|
REPORTERS’ TRANSCRIPT OF PROCEEDINGS
Monday, April 30, 1984
Pages 393 through 430, incl.
(See next page.).
|NANCY L. HARRIS, CSR #644
HERB CANNON, CSR #1923
|For the Plaintiff:||PETERSON & BRYNAN
BY: JOHN G. PETERSON
8530 Wilshire Boulevard
Beverly Hills, California 90211
|For the 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 Defendant:||CONTOS & BUNCH
BY: MICHAEL J. FLYNN and
5855 Topanga Canyon Boulevard
Woodland Hills, California 91367
LOS ANGELES, CALIFORNIA; MONDAY, APRIL 30, 1984; 9:45 A.M.
THE COURT: All right, we will call the Church of Scientology vs. Gerald Armstrong.
MR. LITT: Good morning, Your Honor. Barry Litt for the intervenor Mary Sue Hubbard.
MR. PETERSON: John Peterson for plaintiff Church of Scientology.
MR. FLYNN: Michael Flynn and Julia Dragojevic for the defendant Gerald Armstrong.
THE COURT: This is the day that we were to proceed to trial.
What is your situation at this time, Mr. Litt?
MR. LITT: Yes, Your Honor. We, as we had discussed briefly in chambers, would ask the court to reconsider our original request that as of last Monday we have a two-week continuance. If the court will recall, at that time the court granted a one-week continuance. At that time we were dealing with what had been designated as approximately 30 documents or so that had been identified in the defendant’s papers.
The court will recall that it has always been our view that the defense that has been adopted here is not one that we had expected or that we felt was part of the pleading and that the designation of these exhibits required some time for preparation.
We received then a list from the defendant Wednesday morning pursuant to the arrangement that had been made last Monday, And we went into the documents at that time.
Among other things, we discovered that there are some 500 documents, in fact, that he’s picked out that are down in the clerk’s office by the defendant. They number approximately 2,000 pages.
We had five people down there trying to work on these documents. There are some logistical difficulties because you can only work a box at a time, although for a short period of time we were able to work two boxes at a time.
The substantial majority of the documents that have been pulled out by the defendant are original documents. We have absolutely no access to them other than down in the court itself. There are literally hundreds of original documents.
THE COURT: You don’t have copies of those?
MR. LITT: No, we don’t have copies of those. Mr. Armstrong took them. He took the originals and as far as we can determine at this point –
THE COURT: Well, do you have anybody available that could bring a photocopy machine in and Xerox copies of them and then digest them on your own?
Does the clerk permit a private litigant to bring in some type of a copying machine?
THE CLERK: No, they are not supposed to.
MR. FLYNN: Your Honor, they have — five copies were made of all of these documents per the testimony of Laurel Sullivan who was in charge of the entire project, and she so testified on page 57 of her deposition last week. Five copies were made of every document and sent to five separate locations back in January of 1980.
MR. LITT: Your Honor, may I finish?
THE COURT: That is my fault. I interrupted because I thought maybe there was some other way.
Let’s let Mr. Litt finish, Counsel.
MR. LITT: Your Honor, these documents, as far as I can determine from Mr. Armstrong’s testimony, and I don’t know if this applies to all of them and we are trying a
search of our own archives to determine what there is. The archives are massive and were not left particularly well organized by Mr. Armstrong, but he says that the originals that he had came from boxes of materials that he found primarily at Gilman Hot Springs, the area where many of Mr. and Mrs: Hubbard’s personal possessions were kept. That they were in several boxes and that because they were voluminous, unorganized and he said of inconsequential interest and should just be reviewed just in case there was anything there, he took the originals and did not make copies. That is my understanding of his testimony and Miss Sullivan is not, as far as I know, referring to this, at least that has been his testimony in this case and I can get the deposition cite if it is necessary.
So far as we have been able to determine so far, we do not have copies. What has happened in this case is progressively each time the documents come up, the expanse of it grows. We recognize what the court’s rulings have been, and all we are trying to do is to get prepared to litigate this. The court should understand that Mr. Armstrong was the only person who dealt with these documents for two years.
When he left, there was nobody else that was doing the kind of work on these. Mr. Armstrong knows these documents. We are learning these documents from scratch. He is the one who organized them. He is the one who put them together. He is the one who took all these originals that he said really were just taken from
Mr. Garrison and were sent over to his lawyer, although it now appears that we have a somewhat different pattern here because the majority of the documents that they want to use to assert their supposed claims of the defense are original materials that we had always been told by Mr. Armstrong were junk, just inconsequential materials.
That in addition to the problem that we have addressed the general mass of this material, we don’t know what the defendant is going to do. What we do know is that we have to begin preparing and we have to make our own analysis of these materials.
We had originally requested two weeks and we explained at the time the reasons. The court adopted a compromise of a week, but that is when we were talking about what we thought were 35 to 50 or so documents. Now we are talking about 10 times that amount.
And we would like to renew the original request. We are not asking for more time than had been discussed at the time of the two weeks which would mean we would start a week from today. And we would like to take up the matter of how we can gain meaningful access to these documents so we can work with them because it is very difficult under the present circumstances. I’ll reserve that matter until we resolve this first thing.
It is not anybody’s fault, but right now the logistics are extremely cumbersome. It makes it very hard for us to work with the materials.
MR. PETERSON: Your Honor, may I be heard?
THE COURT: Yes.
MR. PETERSON: I was the one who went all day Wednesday, myself, Mr. Magnuson, and three other people.
What we were faced with was a banker’s box which was stuffed full of files sideways, not just laid in there, but completely sideways and about that much of material in the second box.
And in many instances, there was an entire file set in there. There was one in there that said “Veteran’s Administration.” Going through that piece by piece, there were at least 100 letters. I had no idea. Some of the letters indicated change of addresses. There were blank change of address forms.
What it requires, in order for my client to put together a meaningful defense, it requires that I look at everything they have put in that box to see what
it is. Because at the time of trial Mr. Flynn could reach in that box and pull out any document and I must be prepared to tell behind the document, understand why he is using the document, and have evidence ready to refute any claims he makes regarding the document. And it is very difficult when I hold up a blank form to the Veteran’s Administration. But I still have to go through every one of those.
Mr. Litt says 2,000 pages. I think that is a conservative estimate.
I think what the court should do is seriously consider the request for more time and request the defendant to make a more concerted effort to designate a document.
For example, in the Veteran’s file, I am sure there are only one or two letters they would want to use out of that entire file. But I spent all day Wednesday going through the entire file, reading meaningless letters.
There was an envelope full of snapshots, Your Honor, that no one recognized from the ’50’s that didn’t have any parties to the litigation in it. Some of them looked like family photos.
We tried to understand why they are in the box of proposed exhibits.
It is a massive task. I was there. I had to go through them. We absolutely need more time in order to prepare a meaningful defense.
MR. FLYNN: If Your Honor please, there is a remarkable lack of candor in the representations of my brother with regard to what has gone on in this case.
If the court examines the log downstairs, which can be sent up by Mr. Nottke, Your Honor will find that I would estimate at least in excess of 100 hours have been spent by the plaintiff and the intervenor going through every document down there, cataloguing every document down there.
My knowledge of how this organization works, they have made meticulous notes of every aspect of each document; in fact, there is a witness who is going to testify in this case named Vaughn Young who picked up the biography project after Mr. Armstrong. I understand he knows these documents; has catalogued them and knows them.
The idea that they don’t have sufficient knowledge of the contents of the documents is ridiculous, Your Honor.
If Your Honor examines the court’s log I believe you’ll see that.
With regard to the allegation that they didn’t know which documents we were going to use, in our answers to interrogatories and in our statement as to what exhibits we were going to introduce, we said all documents. And once Your Honor gets to the evidence, you’ll understand why.
What we did is we made an effort to catalogue
the areas that we see are significant. But the problem runs something like this: You take a representation, for example, that Mr. Hubbard was a member of the Explorer’s Club or a representation that he had served for four years in combat and was crippled and blinded from war wounds, now, you just can’t go to one document and say, for example, here it says he wasn’t crippled and blinded. There is, as it turns out, one document which we call his admission where he references all his own lies which summarize a lot of the lies up to 1946.
But, for example, with The Explorers’ Club, Mr. Hubbard, based on a collection of documents, appeared to have somehow procured letterheads from various people and then filled out letters of recommendation and forged their names in order to get into The Explorers’ Club or, for example, the Caribbean — the fact that he wrote the script to the movie “Dive Bomber,” you can’t go to any particular document to determine whether or not he did or didn’t write the script; you collect many documents to determine whether or not that in fact took place, as Your Honor will hear once this case starts.
I submit to the court there is incredible evidence of lies within lies within lies within lies. And the collection of documents taken together proves all of these.
MR. LITT: Your Honor, this is not the issue –
MR. FLYNN: The plaintiff and the intervenor have had access to these documents; not only since they have been in the court, but as Laurel Sullivan testified last Thursday,
when Mr. Armstrong brought the documents to her, she testified that under the criteria for shredding, they all would have been shredded; the criteria characteristic, it was anything that showed Hubbard connected to the church or to Gilman Hot Springs.
But she ordered Armstrong not to shred them because she thought they had value because they were Hubbard’s personal documents.
She testified that she made five copies of all of those documents and sent them to David Gaiman, Janet Whelan, public relations officer and personal secretary at World Wide.
So in addition to the fact that since 1980 they have had five copies of it and in addition to the fact that they have had access throughout the period of time that the documents have been in court — and if Your Honor looks at the court log you’ll see that further, in the summer of 1983 they made an agreement with Mr. Garrison. And under the agreement with Mr. Garrison they obtained access to all documents; where there were originals, Garrison had copies; where there were copies in the court, Garrison had originals.
They obtained possession in the summer of 1983 and he had continuing possession of all of those documents since that period of time.
It is simply disingenuous to come in and claim that they now have to prepare a defense to our defense because they don’t know what we are going to do.
We are going to simply defend the case based upon what evidence the plaintiff and the intervenor put in. If they put in evidence with regard to certain items, we are going to defend on those items. And we’ll rely on documents to support Mr. Armstrong’s state of mind at that particular time.
Now, at this point I think I should bring up to the court something that we, in refining our focus for this case, have found to be extremely important. And it goes in part to this motion for a continuance.
I submit to the court if the court denies this motion, they’ll probably seek to appeal this case before it starts because having reviewed the documents in some extensive detail on Wednesday and Friday, in my knowledge of this subject matter they cannot allow any of the testimony of Gerald Armstrong to be put on the public record.
This court is in an incredibly unique and, I submit, extremely important position with regard to five years of litigation involving the subject matter. And that is essentially this: As Your Honor will hear, thousands of people have relied on very specific facts about this man. And I have intimate knowledge of the reliance of these people as does my client, as does Laurel Sullivan, who was his personal publication relations officer.
There are currently shock waves going through the Church of Scientology because of misrepresentations because of Mr. Hubbard’s background.
MR. PETERSON: Is this opening statement, or a response to our motion for a continuance?
THE COURT: I assume it is a response to your motion for a continuance.
MR. FLYNN: There are shock waves going through this organization.
It is hard for me to convey to the court the significance of the position the court is now in with regard to what is in these documents and what is potentially in the testimony of Mr. Armstrong, depending on what the plaintiff and intervenor do in this case.
I submit to the court in all candor for them to go forward with this trial and for Mr. Armstrong to be given a fair defense, the court will come to the following conclusion: Mr. Hubbard is an indispensable party –
MR. LITT: Your Honor –
MR. FLYNN: — to the action. This goes to the continuance if I can just finish it.
Mr. Hubbard is an indispensable party to this case. From what I understand from Miss Dragojevic the motion to dismiss this case for failure to join him as an indispensable party has never been made. I am now going to orally make it before the court based on the case of U-Tex Oil vs. Pauley at 25 Cal. Reporter 790.
The outcome of this case will inescapably and irrevocably affect the interests of Mr. Hubbard. Under the law of this U-Tex case, the failure to join an indispensable party can be raised at any time even up to appeal, even for the first time on appeal as was the case here.
This case is remarkably similar to the present case because there possession over property was involved and there were people involved on an assigned basis relating to leases of the property who weren’t joined. The court
dismissed the entire action for the failure to join those parties for the first time on appeal.
Now, the significance here this morning to what I am bringing up to the court is as follows: Your Honor will hear that the evidence in this case is that PDK, a Danish corporation, contracted with Garrison to write the biography and that under that contract Hubbard was supposed to supply a research assistant, which was Armstrong, and Armstrong had his own contract with Hubbard.
In order to consummate that contract, the entire project had to be approved by L. Ron Hubbard. All the rights and duties and liabilities under the contract were subject to L. Ron Hubbard’s final approval. The very release that was executed between Garrison and the corporation which was assigned the interests of PDK, which also isn’t even before this court had to be approved by L. Ron Hubbard.
There has been no showing before this court that PDK assigned any interest –
MR. LITT: There’s been no showing of anything. We haven’t had evidence, Your Honor.
THE COURT: Let’s let counsel finish.
MR. FLYNN: To Church of Scientology of California or to Mary Sue Hubbard that, in fact, the showing has been based on what we know that the assignment was to a corporation called New Era Publications. They are both for profit corporations.
I bring this up now to the court because I
believe the following is going to happen and think it is going to save a lot of court time. If Your Honor denies the motion for continuance, I think they are going to try to appeal the case. I submit that at the conclusion of the case, if Your Honor wants to spend two weeks trying this, we are going to all arrive at the conclusion that Hubbard is an indispensable party to the case and/or at some point an appellate court might arrive at that conclusion and/or if the plaintiff and intervenor were to lose the case, L. Ron Hubbard could come forward and start an entirely new action and Mr. Armstrong would be subject to a suit all over again.
I run the risk in bringing the subject up of the court bringing a continuance to resolve this matter, but I submit that given everything that has gone on to date, the court should put the burden on the plaintiff and intervenor to fish or cut bait.
I am going to make an oral motion to dismiss for failure to join Hubbard as an indispensable party whenever the court gives me the opportunity, and I will argue at that time. But in any event, I believe that that is where the case is going to end up and I also submit, Your Honor, that we could go around and around with these continuances for the next few weeks and they will come back in a week from now or two weeks from now and they will find another reason that they can’t go forward. All the time Mr. Armstrong and myself and Miss Dragojevic are subjected to huge costs in defending this matter.
They pressured this case to go to trial.
They have had intimate knowledge of these documents. It is simply incorrect or inappropriate to come in and argue they don’t know enough about the documents when the documents are the very subject of the litigation.
I submit that the court should one, deny the motion to continue the case; two, we should take up the issue of whether Hubbard should be in this action because at some point I think that some court is going to have to confront that issue and the court is going to arrive at the conclusion that it is Hubbard’s interests that are the bottom line in this litigation and the real person who is on trial is L. Ron Hubbard.
Because of the nature of what is in these documents, his interests are the ones that are being affected. He should be a party to the action. If he won’t come in and claim the interest of the documents, then the case should be dismissed and that issue should be resolved this morning.
THE COURT: Well, I disagree.
It seems to me that a motion to dismiss for failure to join an indispensable party, there are certain situations where as a matter of law somebody is an indispensable party such as a wrongful death case. This is not that kind of a situation.
What you have here is your contention and the contention is not in evidence. The plaintiff has made allegations in his complaint and the intervenor has made allegations in his complaint, and they either prove up or they don’t prove up, and if at the conclusion of the plaintiff’s case it appears from the evidence that as a matter of law that we are missing an indispensable party, you can make an appropriate motion at that time. But certainly it would be premature at this tine and I will deny it without prejudice.
Now, so far as the case itself is concerned, as far as I am concerned it is a routine lawsuit, and we are going to treat it as a routine lawsuit. It isn’t something that the world is going to turn over on and the plaintiff is going to have an opportunity to present its case and the defendant is going to have an opportunity to
present its case and the court will rule on it as a routine case in that sense. Certainly there are unique issues in this case, and the court will deal with those. So, we will do one thing at a time in this lawsuit.
Now, I really am a little bit troubled by the motion for further continuance. The case has been pending for a substantial period of time and those exhibits have been available to both sides in the custody of the clerk, and I don’t think that either side is bound by what some witness might say at a deposition in the absence of a stipulation of what a particular witness would have to say. I am not here to resolve the credibility on an oral motion.
It seems to me that we are tying up getting the horse before the cart.
Mr. Flynn refers to the plaintiff wanting to appeal. Any party is entitled to seek whatever appellate relief they feel is appropriate. That is part of the practice of law. And that is their prerogative if they see fit, just as the defense has that same right. And the decisions I make are not going to be based upon some concern over that in the abstract as distinguished from the problems that are being presented to me here in the courtroom.
It seems to me that I don’t see any reason why the plaintiff can’t proceed in this case.
Now, we can get these exhibits up here that have apparently been referred to. And if something comes up, certainly, the plaintiff in the preparation of his case doesn’t need further research into the defense’s characterized exhibits. And I don’t know which ones that Mr. Flynn is intending to use. When the plaintiff rests, at that time he should have an idea of what he is going to use and we can take time at that time, if necessary, to spend a day or two looking at exhibits. But it may be a lot narrowed down and refined at that time. That is my basic reaction.
MR. LITT: If I may, Your Honor –
THE COURT: You must know what you are going to present in your case in chief.
MR. LITT: I do not contend that we need these
documents to present our case in chief.
Our difficulty, however, the court should understand the magnitude. I hear Mr. Flynn talk; we are dealing with whether or not in 1932 L. Ron Hubbard did certain things, extraordinary as that may be.
And leaving aside whether L. Ron Hubbard did or didn’t do something in 1932 can in any way represent some justification for what Mr. Armstrong did, that is their contention.
So we are dealing with a situation in which Mr. Armstrong is going to, presumably, get up on the stand right after we complete our case and he is — my assumption is that the defense at that point intends to introduce all of these documents and have Mr. Armstrong go into a litany of statements and claims and we’ll then be cross-examining him.
And so my problem is not that we need it for our case in chief. Our case in chief is simple and straight-forward. But we feel that we, at least, need some further opportunity so that we can have people organizing these materials because, in reality, it appears that the key question in this case has become whether or not this defense is applicable.
Now, maybe that will turn out to be wrong. But from our point of view, that is a major concern.
So, yes, we could proceed with plaintiff’s case. But we feel that we need some time just to, at least, get a hold of these documents and know what we are
Right or wrong, Your Honor, these documents were not read.
It was the wish of Mrs. Hubbard that they not be read. And we felt that the case did not require using the contents. She had expressed a very strong desire that that not occur. And that is what we had done.
Now we are in a position where that is not possible. And so, we are just asking for some time so that we’ll be able to proceed with the case and, in particular, we’ll be able to engage in the proper cross-examination of Mr. Armstrong and perhaps Mr. Garrison if he is coming in. I don’t know. That is the real problem that we face.
We’ll move to our case, depending on the length of the cross-examination, rather quickly, I think. And then we’ll be into their case and we’ll be ready for that.
MR. PETERSON: May I speak momentarily to that, Your Honor?
THE COURT: Yes.
MR. PETERSON: What Mr. Litt has brought up is something that I think the court should consider also in context with what Mr. Flynn said.
He said we designated all of the documents. And what we fear is that not only will he draw from the rest of the 8,000 documents that he hasn’t designated, but any of the 2,000 documents that he has designated, he’ll
pull out to show Gerry’s state of mind; to show unclean hands, he’ll read a sentence out of a file, out of a page, an entire file. And we haven’t had the opportunity to review the whole file to put it in a proper context.
So we are sitting here with a document that is pulled out of context and that we haven’t had the opportunity to fully review. And that is a problem. It is the unique nature of the defense of unclean hands and Gerry’s reasonable state of mind. it puts us in a very awkward situation.
Mr. Flynn said that I wasn’t expressing candor with the court.
I have been the one who has gone down to the documents. We have not reviewed all of the documents because of the privacy issues on Mrs. Hubbard’s documents and the fact that there are five boxes with over 10,000 pages of materials there. It just is physically impossible.
We have a list of categories, but we have not reviewed every single document.
I’ll categorically state to this court that there are not five copies of all of these documents floating around the world. There just absolutely aren’t.
So I think the solution is a short period of time when we can look at, at least, a full review of the documents that he has already selected; that the court say that Mr. Flynn can’t at a later point in time flood us with additional documents and make it a no further continuance order. I mean Department 1 does it quite frequently.
THE COURT: Well, I am very reluctant to do this, but I am going to continue the matter to Thursday, the 3rd, and it is going to go at that time. No further delays. You will have between now and the 3rd to review these exhibits and the defense will not be permitted to use any other exhibits in their case in chief, only in surrebuttal in the event the plaintiff develops further references that need a further exposure to those exhibits.
I am reluctant to do this, but I am willing to accept the plaintiff’s representations in regard to their lack of awareness of what is in these documents, so in the hopes that this will avoid later delays, that will be the order.
MR. PETERSON: Could we have a minute order to the clerk’s office? They require a minute order that we can come in. They have certain days of visitation. I think Tuesdays and Thursdays are their days.
MR. LITT: If we could have a 9:00 to 5:00 order for the next three days.
THE COURT: Yes, Monday, Tuesday and Wednesday.
MR. LITT: And if that order could state that arrangements where we can work with more than one box at a time be made. I don’t know what that would take.
THE COURT: Well, we can’t turn the the county clerk’s office on its heels for this case. They have got enough problems.
MR. PETERSON: I think we can do it one box at a time if we have the full three days.
MR. FLYNN: There is a great issue with regard to security of these documents, and having now looked at them myself for the first time while they have been under seal and observing Mr. Nottke’s stringent adhesion to the court’s orders with regard to monitoring every document, we are very concerned that certain documents not be lost.
But, in any event, we, of course, have now been subjected to three weeks of continuance of this case and we will, of course, accept the court’s order.
We would, also, like to have the opportunity to look, at least in part, at some documents while they are being looked at by the plaintiff and the intervenor. We are not looking for a continuance. We are perhaps looking to be present at the time that they are looking at the documents, so after they look at them, we can look at them.
I submit, Your Honor, I have already made the argument with regard to what took place. For three months before Mary Sue Hubbard ever came into this case, if Your Honor looks at the logs down there, you will see Mr. Peterson and other law firms. There have been seven law firms representing the plaintiff and intervenor in this action. Attorneys and parties have gone over there for that three-month period and I submit, Your Honor, they have read every document. But in any event, I think we should be given some opportunity to be present while they are looking at them.
MR. LITT: Your Honor, that is a difficulty obviously because we are going to be sitting there and we are having
to make notes and discussions because we are going to have to take people down there who will understand these documents.
What I would suggest is that it be arranged that they go from 3:00 to 5:00 each day and we can go from 9:00 to 3:00 each day, and that way they will have an opportunity to gain access to the documents.
They have spent substantial time, and as I said, Mr. Armstrong — they had these documents for months in their possession. If we want to talk about who really had them, it was Mr. Armstrong who had them.
THE COURT: Let’s get away from the personal rhetoric.
MR. LITT: I just meant he is familiar with them much more so than we are. That is my point. I would suggest that procedure. They can have privacy in whatever discussions they need to have and we can have privacy in whatever discussions we need.
MR. PETERSON: If Mr. Flynn’s concern is concerned with the safety and security of the documents, I would say Mr. Nottke is very careful. They have two people sitting at each end of the table observing the documents at all times. They take a stack of documents, put it on the table and watch it. They are absolutely safe and secure.
The county clerk’s office has done a marvelous job in keeping the documents secure.
MR. FLYNN: We will accept Mr. Litt’s suggestion.
THE COURT: All right, we are going to start at 9:00 a.m. on Thursday.
The plaintiffs from 9:00 to 3:00 and defendant from 3:00 to 5:00.
MR. LITT: Your Honor, could I cover some –
THE COURT: You are losing time down there.
MR. LITT: I know.
Your Honor, we discussed earlier and I am not exactly sure of the court’s order and I’d like to have it clarified, this issue of the treatment of the documents presently under seal in the context of the trial itself, and the first thing is I would like to make clear what our request is and that I would like to be clear on exactly what the court’s ruling is.
We request that all of the documents remain sealed at the time that they come into court, at least until the trial itself is concluded and the court has heard the evidence and can make an informed judgment as to whether or not any of them should be on the public record, and we ask that all proceedings in which there will be discussion of the contents of the documents be closed and the transcripts be sealed until the trial is concluded, at which point the court could obviously also release that.
We say that because, having now looked at the documents, we feel more strongly than ever, not that they show what Mr. Flynn says they show, they are private documents. They are nobody’s business. That is what this comes down to.
And I think that is what the court will find when this case is over. But we need to be clear in terms of the whole formulation of our approach to the case to know how these documents will be treated on a blanket basis. It just does not solve our problem that it be dealt with on document by document basis.
We are now talking about 25 percent of the documents under seal which have been designated by the defendant. They are — if the court — we would be prepared — and I think it would help — to pick out and give to Mr. Nottke to give to your clerk 15 or 20 documents that I think will give the court an idea of why we say that these are private materials. And it seems to us that the procedure that we are suggesting, which is that they be sealed during trial, that after trial in the context of having heard the evidence, the court can decide whether the public interest in the documents waives the privacy interest which is not a determination that can be made very well absent a full airing of all of the issues including, frankly, our rebuttal. Because there will be casts put on these documents which will be shown to be simply false. But that won’t come out until the full case has been tried.
And Mr. Flynn made reference in his earlier argument to the fact that there are shock waves going through Scientology. I cannot emphasize to the court too strongly that that is what this mechanism is all about.
Mr. Flynn walked out in the hall the other
day and said to Mr. Armstrong within earshot of plaintiffs, “We have won” after the court’s ruling that we’ll deal with this case on a document-by-document basis.
This case is about whether they can spread on the public record these documents.
What we are concerned about at this point is whether or not we can get, at least, a ruling that will guarantee that all of these documents will be sealed until the case is concluded and that the hearings will be sealed. And that — it is an exceptional case. There is an effort here to take bits and pieces of a man’s life of 50 years in an extraordinary effort to somehow make a claim that it is all right to intrude in his private matters on the grounds of whether or not somebody was told something about what he did.
There is a history of the plaintiff — I’m sorry — of the defendant’s attorney’s involvement in this litigation. I don’t want to go into all of this. But at times he has called for an avalanche of lawsuits against the Church of Scientology.
We just feel that the request we made under the extraordinary circumstances of this case is appropriate.
I referred at some earlier point — and we had a discussion about — the probate case in which I represented Mrs. Hubbard and Mr. Flynn represented Mr. DeWolfe. Mrs. Hubbard won that case on a summary judgment motion.
In the course of it there was a substantial
discovery into Mr. Hubbard’s private affairs.
Mr. Flynn has been quoted as saying our summary judgment motion, which we won, was the best thing that ever happened to his case.
We are concerned that there are collateral interests here at work in how this whole case is proceeding. And that will ultimately all be resolved in the course of trial.
I am simply trying to state to the court why, from our perspective, we have this concern. And we feel we need a generalized ruling.
I cited to the court previously the case of United States vs. Hubbard. And I wanted to make sure the court knows the history of that case.
In that case the Church of Scientology had moved to — moved for return of property taken in a search warrant. And in order to show the over-breadth of the warrant, the church itself introduced a large number of documents which were seized in the course of the warrant to show that the documents seized had no relationship to the identified areas in the warrant. All of that was sealed at the time.
Subsequently the trial judge had sealed those materials. They were spread on the public record.
The Court of Appeal subsequently ruled that that was absolutely wrong; that they never have been sealed. It discussed the very problem we have here where a party seeks to protect its privacy rights and in doing
so is forced to publicly disclose that which it is trying to maintain private.
Unfortunately, in that case, although the court ultimately required that they be resealed, that for the months they had not been sealed, that the harm was done. And we are very concerned that will happen here. And it is not — it has nothing to do with Mr. Armstrong’s and Mr. Flynn’s allegations about all of these things that they have to say. It just has to do with the fact that it is nobody’s business what 50 years of a man and a woman’s life is. It is just not.
We urge the court to enter an order that will ensure that the privacy of these materials will be maintained until the court has had the opportunity to hear all of the evidence that make an informed determination about how the material should be handled from there.
THE COURT: Well, I don’t really know how that can be done. I am not going to conduct a Star Chamber Proceeding here. This is a public proceeding here.
I assume the exhibits will be brought up under seal or in a secure condition where they are not available to the public generally. They are available here to counsel. During the course of the testimony of a witness, if counsel wants to use an exhibit I assume he would have to have it marked for identification and either refer it to the witness or in some other fashion develop its relevance, its materiality. And then if it is being offered into evidence, the court will have to rule on it.
Now, certainly, only during the testimony of the witness would anything presumably be read into the record that was necessary to the cross-examination or examination of a witness. And the court is not going to order that that be done in secrecy. And if an exhibit simply is marked for identification and not received in evidence, then the court could well possibly conclude that that should be sealed. If it is received in evidence, it is going to be a part of the record.
If it is received in evidence, it is going to be a part of the record and I would not think it should be appropriate to seal it.
MR. LITT: Your Honor, there is procedure that even if admitted into evidence, it is appropriate that it be sealed.
THE COURT: I am not going to make a blanket ruling at this time without knowing what it is. I have presided over hundreds of trials involving matters which are sensitive to people that have interests involved in it. They are matters of public record.
I have tried hundreds of criminal cases where victims have testified about intimate details about themselves, and they have not been sealed records and I will deal with it strictly, as I have indicated before, on an ad hoc basis. If there is something that the court concludes shouldn’t be a part of the record, then the court can deal with it and order it sealed, but something that is a part of the testimony that is received in this evidence in this case it seems to me it is there unless something is extraordinary about the particular exhibit that requires some other treatment.
MR. LITT: So if I understand the court’s view, just so I understand, it is that in general the court would consider that any document admitted into evidence should be publicly admitted although it will entertain a request for specific documents that it be sealed.
THE COURT: Yes.
MR. LITT: All right.
Well, Your Honor, it is possible that we will seek a writ on that issue, but in light of the fact that the trial is Thursday, we don’t seek a stay. If we do it, we will do it in the time that we have.
There is one last matter, Your Honor — well, actually two.
In terms of dealing with the admissibility of the documents, I would just like to inquire how the court envisions it. I don’t know that the court is aware that there has been a procedure so far in this case whereby a person other than the litigants to this case in the context of this case has to seek — use a special master procedure in which before discovery is permitted, the relevance of any document has to be established. A special master makes a search, any objections to those documents shall be heard and the question of discovery will come only after that full procedure has been gone through.
I feel that the same procedure should be followed here. If a defendant identifies a whole range of documents where there hasn’t been any ruling on the privacy, on the privacy, on the admissibility, on the various issues, but nonetheless they are identified and spread upon the public record indirectly, if by no other way, that this will substantially undermine the procedure that was adopted by this court in adopting the special master procedure which is designed specifically to prevent that occurring in the context of other cases, and we suggest that the same
should go here and that, therefore, before any reference is made to any documents that we should be able to be heard at side bar and an offer of proof be made by the defendant and the issues of whether or not this is an appropriate area of inquiry can be gone into so that at least some limitation is going to be placed on what is going to be permitted.
We are not asking for precisely the same procedure, but we do think in some form we should have such a procedure because otherwise an exhibit will be marked. It will be discussed. They will go into it and then the court will ultimately rule on whether it will be admitted into evidence or not, and we will have effectively essentially, since the court has indicated that the proceedings will be public, we will have effectively accomplished the unsealing of these materials.
The court should understand that not only are these materials private, but Mr. Flynn has argued that they have no literary value whatever. They have substantial value, but more importantly –
THE COURT: Let me just interrupt you. We are not not going to adopt that particular procedure.
What I want you to do and you are ordered to prepare a list of exhibits with a brief designation of what they are, in other words, a premarking of the exhibits. The plaintiff will be one et sequitur and the defendant will be A through Z and double A through double Z, and then without getting into any discussion of what is in the exhibit, you
will refer — we’d like to refer to exhibit Z or 126 or whatever, and again if there is a problem over it, you can approach the bench and we discuss it. But we are not going to make this anymore cumbersome than we have to.
MR. LITT: The last matter, Your Honor, has to do with the deposition of Laurel Sullivan that Mr. Flynn referred to a little bit earlier.
At the end of that deposition Mr. Flynn elicited from Miss Sullivan a series of questions over our objection, both because we had not completed the questioning and because it was our contention that they were — he was eliciting privileged information concerning the MCCS Mission which the court had previously ruled was not to, at least at this stage, come into the case.
Miss Sullivan held a position within the Church of Scientology of California. In that context she was in charge of a mission which retained and under the advice of the attorneys was involved in a reorganization of a variety of churches. Mr. Flynn asked a series of questions. It appears that Miss Sullivan has divulged to Mr. Flynn attorney-client confidences that she obtained while she was working on the church’s behalf. She may claim she was working on Mr. Hubbard’s behalf. If so, the same situation pertains in any event. There is still a privilege, and therefore we would ask that there be a no dissemination order with respect to that transcript and the contents of what was elicited.
We will perhaps ultimately have to deal
with the question of whether the court is going to allow any of these and if so, I just want to alert the court that there were a half a dozen or more firms retained including Rosenfeld, Meyer & Sussman; Ball, Hunt, Hart, Brown & Barwitz; Erwin, Cohen & Jessup; Mori & Ota: Fulwider, Patton, Rieber, Lee & Utrecht, and others which I will not continue to name who were working on this. This is an attorney-client privileged area. There were attorneys retained from the beginning to end to direct this whole activity and Miss Sullivan has apparently not communicated to Mr. Flynn all of this.
Mr. Flynn is now asking questions about it in the deposition and we would just like one, the sealing; and two, we would really like it clear that without a hearing that this privilege not be violated indirectly by questions being raised or anything else.
It would be the burden of the defendant to establish that there is no privilege once we claim it, and we are very concerned about the situation.
THE COURT: All right, I don’t see any problem with that. The court will have to resolve the situation at trial, whether that conversation is admissible, but at least until that time it should not be discussed with other people other than within the counsel table.
MR. FLYNN: That is fine, Your Honor. The only reason I asked — they examined Miss Sullivan for approximately six-and-a-half, seven hours and they gave me two minutes, and the issue of the attorney-client privilege came up with
regard to these tapes. So, I asked one question so that the court would have the transcript to resolve the issue when it came up, and the one –
THE COURT: I will worry about that later.
MR. LITT: There is one other matter regarding Miss Sullivan which is that Miss Sullivan and Mrs. Hubbard had an exchange of correspondence. Mrs. Hubbard, other than one letter, does not have those. We would ask that they be produced by the defendant.
We also requested various other materials.
THE COURT: Well she is not a party to this.
Technically you’d have to subpoena duces tecum her to do something now.
MR. FLYNN: I will give them to him.
MR. LITT: I can’t because we don’t have her address.
THE COURT: He said he’d give them to you.
MR. LITT: Nothing further. Thank you.
MR. FLYNN: I have one point.
If we come back on Thursday and they announce to the court that they have moved for a stay in the Appellate Court to resolve this other issue, I think that would be very unfair to the defendant.
THE COURT: We’ll go forward until we get an order from the Court of Appeal.
MR. FLYNN: I think if they are going to appeal, they should do it between now and tomorrow afternoon so it will be heard before Thursday.
THE COURT: I don’t think I can put any limitation on their right to receive a writ.
MR. LITT: I’ll represent to the court that if we do it, we intend to file any appeal tomorrow.
THE COURT: It will be my position that Thursday we’ll go forward in the absence of any stay order being served.
MR. FLYNN: I’ll again move to dismiss on the failure to join indispensable parties, Your Honor.
MR. LITT: Obviously, if that issue comes up, we’ll want time to brief it. We won’t go into it now; we have enough to do.
(The proceedings were adjourned at 10:30 a.m. until Thursday, May 3rd, 1984 at 9:00 a.m.)