From bobminton@lisatrust.net Sun Sep 02 13:57:02 2001 Newsgroups: alt.religion.scientology Subject: Judge's Ruling in Lisa McPherson v Scientology 082901 From: Bob Minton Date: Sun, 02 Sep 2001 13:57:02 -0400 IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA CASE NO. 00-5682-CI-11 ESTATE OF LISA MCPHERSON by and through the Personal Representative, DELL LIEBREICH, Plaintiff, -vs- CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S., Defendants. _______________________________/ PROCEEDINGS: Motions to Compel Judge's Ruling DATE: August 29, 2001 BEFORE: HONORABLE ROBERT BEACH PLACE: Pinellas County Courthouse Courtroom B 545 First Avenue North St. Petersburg, Florida 33710 REPORTED BY: Christine V. Ales, CSMR-5144, CVR Notary Public APPEARANCES: KENNAN G. DANDAR, ESQ. Dandar & Dandar, P.A. 5340 W. Kennedy Blvd. Suite 201 Tampa, Florida 33609 Attorney for Plaintiff (APPEARANCES: CONTINUED ON PAGE TWO) APPEARANCES: JOHN M. MERRETT, ESQ. 2716 Herschel Street Jacksonville, Florida 32205 (904) 388-8891 Appearing on behalf of Plaintiff KENDRICK MOXON, ESQ. Moxon & Korbrin 1100 Cleveland Street Suite 900 Clearwater, Florida 33755 (727) 443-5620 MICHAEL LEE HERTZBERG, ESQ. 740 Broadway - Fifth Floor New York, New York 10003 (212) 982-9870 Attorneys for Defendant Church of Scientology PR O C E E D I N G S THE COURT: Okay. I've read the memorandums and I've looked at the exhibits and I've come to the following order. One, I'm going to withhold a finding of contempt until September the 7th and Mrs. Brooks' deposition and retaking, and it will be retaken, and at that time the witness is to bring all those matters specified in the judge -- judgment of July the 18th, 2000, and I want to be specifically -- specific and read the -- the language of the order. Produce all, all financial records regarding the payment to any person identified at any time as a witness in this case, that's broad, as to the financial records that are to be produced. And I want those records produced in whatever form they're kept in, whether it's written form or by computer, or any other recording device, I want all those records produced on September the 7th. And if I'm satisfied that this order has not been complied with and I find that the person is in contempt, jail time will attach. Second. The Trust is not to dispose of any records in any form of recording, any form; computer, video, whatever form there may be that's in its control directly or indirectly until further order of the Court. Insofar as the videos are concerned, if there's any recording by photograph or otherwise, I want those produced in full. If the videos are on a computer or any other way, I want them produced in full on September the 7th. I want the Trust to account for all records that fall within the purview of the order of July the 18th, 2000 that have been destroyed accounted for by a description of the record, its date, if possible, when it was originated, what it contained and when it was destroyed. And that also includes any videotapes that fall within the scope of this order. If it appears to me on September the 7th or at any time in the future that materials have not been produced in accordance with this order and within the scope of this order, I may order an independent examiner to examine the records of the Trust to determine whether or not there are any other records that fall within this order that have not been produced. Everybody understand? MR. MERRETT: No, sir. THE COURT: Pardon? MR. MERRETT: No, sir, I don't. What I don't understand is this. That the testimony is that e-mails, draft documents, and documents that have been destroyed as they were created when they were no longer needed, it's simply not possible for anybody to make any kind of a record of it. THE COURT: Well, if they know about it, they can; can't they? If they remember them; true? MR. MERRETT: Yes, sir, in the same sense that they could fly if they had wings. THE COURT: Well, I want anything that's been recorded and destroyed that they remember, I want a record of it. I want them to tell us about it. MR. MERRETT: Yes, sir. THE COURT: Yes, sir? MR. DANDAR: Just to make sure that there's no misunderstanding. The orders dated July 18th, 2000, are you speaking up to July 18th, 2000 to produce all these videos and documents for the Trust, or are you going beyond that date? THE COURT: Up to September the 7th. I want all the records. MR. DANDAR: All right. Beyond that date? THE COURT: Right. MR. DANDAR: Okay. And, Judge, also clarification. Can you please define -- should I stand up? What has happened in this case and why I keep filing protective orders to stop this discovery is that Scientology will put people on their witness lists who are not the Plaintiff's witnesses which is contravention of the May 23rd, 2000 order which only says -- I mean why would Scientology need their financial records of someone who's not on the Plaintiff's witness list? THE COURT: Okay. Well, this is the scope of discovery for all witnesses in this case. The scope is any witness that has any fact directly or indirectly about how this case arose out of the incident that occurred with respect to Lisa McPherson. Any witness that has any evidence of any activity with other witness' gathering of information from other witnesses or payments to other witnesses and that's the scope that we're dealing with. And I'll just have to call them question-by-question if you have an objection and you feel it's beyond the scope of that which I set out. MR. DANDAR: I may not be there. The Plaintiff's Counsel may not be there at that deposition because I, quite candidly, don't think it has anything to do with my case, but I just -- that's why I asked you for the definition of witnesses as far as -- THE COURT: That's my definition. MR. DANDAR: Okay. MR. MOXON: Just -- THE COURT: Yes? MR. MOXON: The definition of witnesses is -- is very similar to Judge Quesada's -- the witness list plus all the people you described, anyone that may have information. THE COURT: Any of the -- any of the witnesses, not just the witnesses that may pop up in their records, but in the future any of the witnesses that we're talking about. We're not interested in their financial background, what they are or anything else unless it has a bearing on the fact that they accepted money to testify in some fashion. MR. MOXON: Okay. And, of course, the counterclaim witnesses? THE COURT: Okay. Anything else? Speak now. MR. MOXON: Your Honor, I'll get a copy of the transcript and propose an order, I'll send it to Mr. Dandar first and to Mr. Merrett so they can look at it and then we'll submit it to you for signature. THE COURT: Okay. I just want it understood as far as records are concerned because in today's technological age records can be kept by many means, many means, and this order contemplates that records kept by any means will be produced, and I'm not going to define them because I'm not that technologically astute, but any means of keeping records, financial records of witnesses who have any involvement in this case are to be produced. You have a question? MR. MERRETT: Yes, sir. The only other thing is I'm assuming that the Court is not imposing a regime for future records retention on the LMT. THE COURT: Say that again? MR. MERRETT: In other words, you're saying we can't throw our mail away tomorrow? THE COURT: No, not if it's dealing with the witnesses in this case. MR. MERRETT: Any -- THE COURT: The scope of what this order is; no, you keep all your records. MR. MERRETT: Even records which are not now -- the Court is ordering us to preserve records in the future? THE COURT: Yes. MR. MERRETT: Relative to witnesses in this case? THE COURT: Right. MR. DANDAR: And, Judge, I'm beating a dead horse, and I -- because I want to be -- I want to make sure they don't make a mistake and -- THE COURT: These motions -- these motions to produce are usually continuing. MR. MERRETT: Not on non-parties, Judge. THE COURT: Well, they -- I want them kept in the future so there will be no problem with that. MR. DANDAR: And witnesses in this case you are defining as witnesses who have facts about Lisa McPherson? THE COURT: That's correct. MR. MOXON: Excuse me. Mr. Dandar's trying to limit it to only his little piece of -- THE COURT: Well, I'm talking about Lisa McPherson or any of the witness' activities in -- in creating, at giving money to these people. MR. MOXON: In the claim and in the counter- claim? THE COURT: Well -- MR. DANDAR: I do not believe -- now, wait a minute. There's -- first of all, July 18th, 2000 there wasn't a counter-claim. THE COURT: Well, let me ask you this, then. Is the counter-claim, the motion to dismiss on that been resolved? MR. DANDAR: Still pending. MR. MOXON: It became a counter-claim. It was a defense -- it was a defense for a long time and then they made a motion so we converted it to a counter-claim. MR. DANDAR: See, Judge, again this is what they're trying to do, and I'm hoping that you stop it. They're trying to go beyond -- THE COURT: Well, I'm going to stick with the order that we're dealing with here, the Sept -- the July the 18th, 2000 order and the scope, and then you resolve the -- the pleadings on the counter-claim, and if it entitles you to enlarge whatever this is, then we'll take it up at that time. MR. DANDAR: All right. THE COURT: They may have to come back and take some more witnesses' testimony, but I'm sticking with the scope on the July 18th, 2000 order. MR. MOXON: Which includes the witness list as of that date? THE COURT: Yeah. MR. MOXON: Okay. I have one -- MR. DANDAR: I got to stop -- I got to stop this. They're trying to -- they'll come in and they're trying to put witnesses that they have on the witness list of people who don't have facts on the death of Lisa McPherson. THE COURT: Well, that's what we're dealing with. That's why I set the scope out on this. MR. DANDAR: So only people -- THE COURT: But it doesn't necessarily mean just the witness list you have but any witness. MR. DANDAR: Okay. That's fine. MR. MOXON: Judge, our witnesses, his witnesses? THE COURT: Every witness. MR. MOXON: We have -- the witness lists were compiled -- THE COURT: I thought I said that. MR. MOXON: Your Honor, Mr. Dandar and I agreed to a proposed order from the hearing of last week, if I can present it to you. THE COURT: Okay. Is that correct, Mr. Dandar? MR. DANDAR: No, it is -- it is correct, I agree with the language, but I just thought of something. Since I'm going to appeal that order, can we have in there if I file an appeal before the 20 days expire which is the 20 days for production that the order is stayed pending appeal? MR. MOXON: Pending the entire appeal? MR. HERTZBERG: May I speak to that? MR. DANDAR: Because why should I produce it if I'm -- if I do file an appeal, it should be stayed pending the outcome of the appeal. MR. HERTZBERG: May I be heard just for a minute? Your Honor, I think it's seemingly inappropriate there be a stay here for two very good reasons. First of all, at Mr. Dandar's insistence, a tentative trial date has been set and we're -- we're heading towards that, so the endless appeals which the Second DCA is getting from -- from the Plaintiff's side only delay the entire discovery process which has to be wrapped up at some point in view of the trial date that they're seeking. And the second point I want to make, I think that with respect to this item which was decided the other day, your Honor authorized only an update on the kind of discovery that had been ordered already by Judges Moody and Quesada. It's just an update. This is not some novel kind of -- THE COURT: What do you want me to do? I can't stop them from taking a appeal. MR. HERTZBERG: You can -- you can deny the stay and then have them request a stay from the Court of Appeal, that way, we can write to the Court of Appeal and tell them our version -- THE COURT: You make a motion for stay as you would in any other appeal. MR. DANDAR: Okay. In one of the depositions we'll just hear it, that's coming up? THE COURT: You make the motion, set it for hearing and we'll hear it at that time. MR. DANDAR: But for the record, we're talking about production for the Plaintiff of -- of funds received by Mr. Minton? THE COURT: Whatever this order -- MR. MOXON: Would you like me take care of the filing, your Honor? THE COURT: I don't care. Okay. Anything else? MR. MOXON: Thank you for your patience and time. THE COURT: Thank you. (WHEREUPON EXCERPT OF PROCEEDINGS CONCLUDED) REPORTER'S CERTIFICATE STATE OF FLORIDA ) COUNTY OF PINELLAS ) I, Christine V. Ales, certify that I was authorized to and did verbatim report the foregoing proceedings, and that the transcript is a true and complete record. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this ____ day of ________________, 2001. ______________________________________ Christine V. Ales, CSMR-5144, CVR Notary Public - Court Reporter