Gerry Armstrong -- Hearing transcript, 1984-04-19, Scientology v. Armstrong, LASC No. C 420153

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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,

Plaintiff,

vs.

GERALD ARMSTRONG,

Defendant.

MARY SUE HUBBARD,

Intervenor.

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NO. C 420153

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Thursday, April 19, 1984

APPEARANCES: (See next page.)

NANCY L. HARRIS, CSR #644
Official Reporter

APPEARANCES:

For the Plaintiff
and Intervenor:

LITT & STORMER
BY: BARRETT S. LITT
Paramount Plaza
3550 Wilshire Boulevard
Suite 1200
Los Angeles, California 90010
(213) 386-4303
-and-
BARRETT S. LITT
BY: MICHAEL S. MAGNUSON
The Oviatt Building
617 South Olive Street
Suite 1000
Los Angeles, California 90014
(213) 623-7511

For the Plaintiff
Only:

PETERSON & BRYNAN
BY: JOHN G. PETERSON
8530 Wilshire Boulevard
Suite 407
Beverly Hills, California 90211
(213) 659-9965

For the Defendant:

CONTOS & BUNCH
BY: MICHAEL J. FLYNN and
JULIA DRAGOJEVIC
5855 Topanga Canyon Boulevard
Suite 400
Woodland Hills, California 91367
(213) 716-9400

INDEX

PAGES 1 through 134, incl.

DAY	DATE		PAGE

Thursday	April 19, 1984	A.M.	1
		P.M.	82
PRETRIAL MOTIONS			1

LOS ANGELES, CALIFORNIA; THURSDAY, APRIL 19, 1984; 9:10 A.M.

-o0o-

THE COURT: Good morning, counsel.

ALL COUNSEL: Good morning.

THE COURT: You people have practically buried me in

paperwork here. I have been doing a lot of reading and I

am not sure I have as good a handle on some of these problems

as I'd like to, but at least I think we could probably get

started with some of these motions.

Plaintiff has suggested an order of review of

motion. I don't know whether defense has any particular

feeling one way or another about the suggested order.

MR. FLYNN: I believe the first motion was the

disqualification.

THE COURT: I think they had that at the bottom.

Counsel, would you state your appearances for

the record from my left to right?

MR. PETERSON: John Peterson for plaintiff Church of

Scientology.

MR. LITT: Barry Litt and Michael Magnuson for plaintiff

and intervenor.

MR. FLYNN: Michael Flynn and Julia Dragojevic for

the defendant.

MR. LITT: Your Honor, while Mr. Flynn is looking at

that in terms of the order that we suggested, I would make

one modification which is, it seems to me, that the court

might want to put the question of the equitable claim issue

and the jury trial issue after it has determined the motions

in limine.

THE COURT: Yes, I would prefer to deal with that later.

MR. FLYNN: The only suggestion I would make, Your

Honor, is with regard to the motion regarding disqualification.

THE COURT: We have joint motions. Would you prefer

to hear those first?

MR. FLYNN: I think those should probably be heard

first.

THE COURT: Okay, I will take that.

Plaintiff's motion to disqualify the defense

counsel Flynn and defendant's motion to disqualify the

plaintiff's counsel Litt. I guess what is sauce for the

goose is sauce for the gander.

My tentative ruling would be to deny both motions.

If you want to be heard further, I will be happy to hear

further.

MR. LITT: I would like to be heard if I may.

THE COURT: Certainly.

MR. LITT: Your Honor, I should first clarify the nature

of our motion which is not to disqualify Mr. Flynn from any

representation of Mr. Armstrong, but it is to disqualify

him from certain forms of participation.

The first has to do with the question of the

documents under seal. The second has to do with the question

of the implications of his status as a witness and what role

he plays in the trial. Let me take each of them in turn.

I don't need to spend a lot of time, I don't

think at this stage, going over the nature of the materials

under seal. Suffice it to say that they are the private

materials of Mr. and Mrs. Hubbard, that they were sent to

Mr. Flynn for use in his other litigation, and it is our

contention that given the fact that the essence of the wrong

committed here was precisely Mr. Armstrong taking these

materials to provide them to Mr. Flynn to allow Mr. Flynn

access to these materials through the back door of status

of counsel in this case, when it is admitted that they were

provided to him for use in other cases, constitutes a

substantial and unjustifiable intrusion into the privacy

of the Hubbards and the church in the very process of

vindicating those rights.

Now, if it were just that these have been provided

to Mr. Flynn, perhaps the balance might not tip so much in

our favor. But I think that there are other circumstances

that make it even more compelling.

Firstly, we have made reference in our papers

to the fact that Mr. Flynn represented a son of Mr. Hubbard's

from a former marriage and he brought on this man's behalf an

action to attach Mr. Hubbard's assets on the theory that

he was missing. In that action, as in this case, many broad

ranging allegations concerning Mr. Hubbard were made.

Mr. Flynn was ultimately disqualified from actually

representing Mr. Hubbard's son because of his conflict of

interest with the estate because Mr. Flynn is suing the estate.

However, Mr. Flynn had been permitted to act as counsel for

out of state depositions. Mr. Flynn did so.

In the course of the proceedings there was

discovery taken into the financial records of Mr. Hubbard

from various banks. Mr. Flynn obtained those records. There

was an order placing those records under seal by the court

in that case, Judge Hennigan in Superior Court of Riverside

County.

There was an order that the materials could not

be used for any other litigation. Mr. Flynn was held in

contempt by that court for having used the sealed materials,

private financial materials relating to L. Ron Hubbard in

other proceedings connected to Scientology or to Mr. Hubbard.

Mr. Flynn has said and we have cited in our papers

that he is incapable of distinguishing what comes from one

set of documents and what comes from another set of documents,

and yet we have an order here prohibiting the use of the

information and the materials for any case other than this

case. Mr. Flynn has admitted his inability to do that in

the deposition taken of him only within the last two months.

Mr. Flynn, by his own testimony, represents 35

parties in litigation with the Church of Scientology, L. Ron

Hubbard and Mary Sue Hubbard. Mr. Flynn himself is a plaintiff

in a case filed in the United States District Court in the

District of Massachusetts in which L. Ron Hubbard is the

sole named defendant.

When all of these circumstances are taken together,

when we realize that one of the fundamental problems with

the court processes in dealing with privacy issues is that

the process itself threatens to undermine the very privacy

which it is the function of the court to protect, then we

believe that Mr. Flynn should not be permitted access to

these documents when all the circumstances are taken together.

That is the present status of the matter.

Judge Shimer, and Mr. Flynn did not contest this,

agreed to enter an order that Mr. Flynn could not have access

to the documents pending further ruling of this court, which

means as the matters presently stand, Mr. Flynn does not

have access to the documents. It is our contention, one,

that that should at a minimum remain until the issue of the

admissibility of the documents is determined because if they

are not admissible, Mr. Flynn has no need to gain access

to them and should not be permitted to gain access to them,

and that secondly, even if certain materials from the sealed

documents are found to be admissible, Mr. Flynn should not

be permitted to do that, and Miss Dragojevic, who, while,

she has some similar conflicts here they do not amount to

the totality of the circumstances here, or anyone from her

firm should be the counsel to handle that part of the case

for the defendant in order to insure that the privacy rights

of the Hubbards and the church are not undermined by

Mr. Flynn's access.

I could say quite honestly that based on the

experience of the parties from our side of the table, it

is the concern that these materials and the information in

them will be misused for purposes outside of this litigation

which has a track record to it. It is not speculation.

It is sufficiently substantial that we think that the court

should at least take the measure of preventing access to

the documents, and that there is no substantial prejudice

to the defendant in doing that. That is the first element

of our motion.

The second element of our motion has to do with

the implications of Mr. Flynn's status as a defendant --

I am sorry, as a witness in this case. I have already

described that the heart of the case has to do with Armstrong's

taking these materials, copying them or in some cases taking

originals, sending them to Mr. Flynn for use in other

litigation.

Mr. Flynn will be a witness called by us. Whether

he will be a witness called by the defendant, I do not know.

I don't believe he was on the defendant's witness list.

He will be a witness called by us.

The defendant has argued that this is a trial

tactic on our part. I think the facts speak for themselves.

It is not a trial tactic.

The court should be aware that in December, I

believe it was prior to any indication, Mr. Flynn was not

of record in this case, Your Honor. He filed a motion to

appear pro haec vice in this case to be heard the day of

trial, the day the case was originally set for trial which

was March 22nd. That was filed approximately -- it was filed

sometime in March.

In December or January we had made clear to the

law and motion court our need for a commission to take

Mr. Flynn's deposition because he was a witness in the case

and we intended to take testimony from him and use that

testimony in this case. So that the record is quite clear

that before there was any question of Mr. Flynn acting as

trial counsel, our need and our intention to use testimony

from Mr. Flynn and to use him as a witness was clear, and

the circumstances in light of the allegations, are clear

that he is a probative and important witness in the case.

The problem is that we are now going to be in

a position where frankly one of the central actors in this

case, Mr. Flynn, because the heart of the case has to do

with what happened between Mr. Flynn and Mr. Armstrong in

the transfer of the documents, is now going to be the person

to argue as an attorney on behalf of another defendant.

He is not representing himself, his own credibility and his

own, by implication or directly, his own motives.

The ABA, the recent Model Rules of Professional

Conduct of the American Bar Association, which are not in

force in this state, state that a lawyer shall not act as

an advocate at a trial in which a lawyer is likely to be

a necessary witness except where one, the testimony relates

to an uncontested issue; two, the testimony relates to the

faith and value of legal services rendered; or three, it

would work a substantial hardship on the client.

The Comment to that rules goes on to talk about

the problem, not just when a client is calling a lawyer as

a witness but for either side, the problem of combining the

role of advocate and witness. It says, "Combining the role

of advocate and witness can prejudice the opposing party

and can involve a conflict of interest between the lawyer

and party. The opposing party has a proper objection where

the combination of roles may prejudice that party's rights

in the litigation."

That is precisely the situation we are in here.

Mr. Flynn, in effect, is going to have the opportunity to

argue his own credibility, his own motivation, and to infer

to the jury in the context of arguing as attorney for another

party the propriety of Mr. Armstrong's conduct in association

with him.

In light of the lateness with which the application

was made from Mr. Flynn in the role of counsel in this case,

the firm of Contos & Bunch was sole counsel of record in

this case from the time the action was filed until the time

that the court ruled on Mr. Flynn's pro haec vice motion

which was, I believe, April 2nd or actually by the time it

got ruled on it was like April 9th.

So that the argument that Mr. Armstrong will

be substantially prejudiced under the circumstances should

not carry a great deal of weight because frankly until a

week or two ago it was not known whether the court would

grant Mr. Flynn permission to appear pro haec vice.

It was known that the problems that I have raised

with issues in the case and the work on this case has been

done by the firm of Contos & Bunch. They are California

counsel. They have represented Mr. Armstrong throughout,

and the prejudice to us is simply greater than any benefit

to Mr. Armstrong. This does not mean that Mr. Flynn cannot

assist the firm of Contos & Bunch. What we are talking about

is the ability and the problem in acting as counsel before

the jury.

We are not even saying he can't argue the motions

to the court. We are talking about the particular problem

of being able to play the dual role before the jury of advocate

and witness.

So it is on the basis of these facts and

circumstances that we raise the issues that we do and we

ask not for a complete disqualification, but we do ask that

these forms of participation be prohibited by the court.

THE COURT: Very well.

MR. FLYNN: If Your Honor's ruling is the same, then

I will refrain from argument. If Your Honor wishes to have

me be heard --

THE COURT: Well, my reaction is, of course, that his

first point deals with your use of these exhibits, I suppose,

as it might relate to other cases, and my reaction is that

if counsel remains in this case, he is subject to the power

of this court to control these proceedings and access to

exhibits, and the court can make any appropriate orders it

may see fit with respect to any exhibits that are available.

I assume that counsel has knowledge of these exhibits gained

from things which occurred in the past. He knows pretty

much what is there and it seems to me that I can't erase

that from his mind, and it seems to me that the court has

the power to control the use of any of the exhibits in this

proceeding, and this should cover that problem.

So far as the other aspects of it, it again seems

to me that this case has been expedited. It has not taken

five years to get to trial like most of our cases, and the

fact that Mr. Flynn has only come in of recent date only

bears upon the fact that this case hasn't been around all

that long.

It seems to me that the present state of our

ethical rules are that as long as there is no prejudice to

the client and the client wants a particular lawyer to

represent him, then the client's wishes should be respected

and if Mr. Armstrong is willing to waive any possible claim

of prejudice by reason of the fact that Mr. Flynn is here

and apparently is going to represent him, that is satisfactory

with the court.

Also, the court would make the proviso that

Mr. Flynn, if he is to argue the case,can't argue his own

credibility as to matters as to which he is testifying or

would be required to testify, and if under those circumstances

Mr. Armstrong wants Mr. Flynn to represent him and is willing

to waive any claim of prejudice, then as far as I am concerned,

Mr. Flynn may remain as counsel in the case.

MR. FLYNN: Thank you, Your Honor.

Mr. Armstrong is here so we could put that on

the record right now.

THE COURT: It is Mr. Gerald Armstrong?

MR. ARMSTRONG: Your Honor.

THE COURT: You heard my statement?

MR. ARMSTRONG: Yes.

THE COURT: You understand that plaintiff has indicated

they are going to call Mr. Flynn as a witness in this case.

If that occurs and he testifies, if he remains as counsel,

he will not be permitted to argue his own credibility; that

is, be can't argue to the jury that he should be believed

over somebody else.

MR. ARMSTRONG: I understand, Your Honor.

THE COURT: And that conceivably might be considered

prejudicial to your case. I don't know.

So, do you waive any claim of prejudice by reason

of this fact?

MR. ARMSTRONG: Yes, I do.

THE COURT: And any other claim of prejudice that might

exist by reason of the fact that your attorney may be called

as a witness in this trial?

MR. ARMSTRONG: Yes.

MR. FLYNN: In that light, Your Honor, I would like

to correct one statement which is in the record regarding

this contempt proceeding which is somewhat personal to me

and somewhat important, I would think, for purposes of the

record. And that is that it is true that I was held in

contempt, but the court should be aware that it was done

under the following circumstances: I did not appear and

defend the contempt proceeding because that was at that point

the third contempt proceeding and the twelfth legal proceeding

that had been brought against me. It was the church's practice

to notice my deposition in various areas of the country all

at the same time, and then when I didn't appear, they would

bring contempt actions in different areas of the country

all at the same time, and this, in fact, happened on one

occasion when I was conducting legislative hearings with

the City of Clearwater, Florida relative to the Church of

Scientology where my deposition was noticed in Florida, in

Massachusetts and in California in three separate cases,

all at the same time, and I was unable to appear in those

three separate locations, and then ex parte the Church of

Scientology went in and sought contempt actions.

With regard to this one matter that I did not

even appear and contest because I thought it was so frivolous

on its face, it related to the following facts: A deposition

was taken in the De Wolfe proceeding, the probate proceeding,

and thereafter two members, a member of the Church of

Scientology and its attorney Sherman Lenske filed affidavits

with the court relative to part of that deposition proceeding,

even though the deposition was under seal, and distributed

those copies of their affidavit to the news media on the

front steps of the Riverside Superior Court.

Thereafter Miss Dragojevic obtained possession

of those two affidavits and called me on the telephone and

asked me about the two affidavits, and I said on the telephone

that I confirmed that in the deposition a bank official had,

in fact, testified that there was an attempted forgery in

the amount of $2 million of one of L. Ron Hubbard's checks

on or about the time that he disappeared and this other group

had taken control of his assets.

On that basis, Miss Dragojevic, unaware of the

sealing order in connection with my response to the two

affidavits that had been made public, filed an affidavit

in an unrelated federal action, and thereafter the Church

of Scientology brought the contempt, Mary Sue Hubbard and

the Church of Scientology brought the contempt action against

me in the Riverside Probate Court on the basis of

Miss Dragojevic's affidavit relative to that simple phone

conversation.

I did not appear and defend it and the judge

apparently found me in contempt. I subsequently went out

there and asked him to vacate it. I had not filed a memorandum

in support of it, and the judge at the hearing said, "Well,

there was no bad faith. It was only a mere technicality

and that is why I entered it." And he chose not to vacate

it.

Those were the circumstances under which that

took place, and as I indicated, it was a long succession

of harassing legal actions that the Church of Scientology

has taken against me.

Other than that, I would just like to correct

the fact of what took place before Judge Shimer. Judge Shimer

had the issue on my petition for pro haec vice before him,

and in the middle of the argument I simply stood up and told

Judge Shimer that rather than address the issue of my access

to the documents during the week that has transpired between --

the week that transpired between the time of the motion and

the time that this trial would actually begin, he simply

said enter an order preventing the access during that time

period and leave everything else to the trial judge as to

how he will conduct the trial and what documents will be

examined at that time.

Secondly, as the court is going to find out through

the course of this proceeding, I have long known about the

contents of all of those documents. In fact, I had them

in my possession for two months and, in fact, the great bulk

of the documents, as the court is going to find out, are

already in the public arena and approximately a year before

Mr. Armstrong ever came to me, I filed a 200 page report

with the City of Clearwater in which some 10,000 pages of

exhibits, including many of those documents, were attached

to that report. So, on those two items, I would just like

to correct the record.

MR. LITT; Well, Your Honor, that is one of the problems

I have. What has just occurred is one of the problems I

have in the case.

I am not going to go through all Mr. Flynn's

claims about legal proceedings that have been brought against

him and everything else.

Mr. Flynn was represented in the contempt hearing.

All I did was recite the basis of what happened, and the

reason we are concerned about his access. That is still

our concern, and we would ask a minimum; one, I point out

that Mr. Flynn states that he cannot recall many of these

documents so that the issue that he has had access does not

really solve the problem. That is from his deposition

testimony.

What Judge Shimer ordered, and I am quoting from

the transcript here in response to Mr. Flynn's offer to

stipulate that the matter of access to the documents go over

to the trial court. Judge Shimer said:

"I accept your offer and that

will be the condition to the granting of the

application, that you are not to be allowed

access to the sequestered documents except

on order of the trial court judge."

Now I would ask that at a minimum this issue

of the documents and access to the documents, that the status

quo remain until the court has made rulings on the motion

in limine regarding the documents.

THE COURT: Well, he is here. Where is he going to

go look at the documents while he is here, counsel? I suppose

that sooner or later I will get around to ruling on these

motions.

MR. LITT: He doesn't need to look at the documents

if they are not going to be admitted in evidence.

THE COURT: I haven't ruled upon that.

MR. LITT: I understand that, so what I am asking is

that the status quo with respect to no access to the documents

remain until such time as the court does rule because if the

court rules that the documents are not admissible, then

there is no need for the representation of Mr. Armstrong

for Mr. Flynn to have access to these documents.

THE COURT: I haven't made any orders of any kind,

so I don't know what you are referring to.

MR. LITT: I understand.

Well, what I am referring to is the somewhat

confused, the present status of Judge Shimer's order. Does

that remain in effect until further order of the court?

THE COURT: Yes.

Do you want to take up the defendant's motion

to disqualify Mr. Litt?

MR. FLYNN: I will waive it, Your Honor, if your

preliminary ruling is as stated.

THE COURT: Okay. Motion is denied.

The next motion purports to be the motion limiting

the subject matter of admissible evidence and testimony of

various witnesses.

MR. LITT: Your Honor, if I may make a suggestion.

I think that the issues would probably flow more naturally

if I argued the motion in limine regarding the documents

before that.

THE COURT: Which motion is that; sub (b), documents

sealed by the court?

MS. DRAGOJEVIC: Yes, Your Honor.

MR. LITT: Yes, Your Honor, and the relevant pleadings

in that, Your Honor, are three. There is a motion in limine

regarding admission of and testimony relating to the documents

sealed by this court, and then there is an opposition to

that motion, and then there is a combined reply memorandum

which largely speaks to that but is also a reply on the motion

in limine regarding the subject matter.

THE COURT: Very well.

I have read the documents that both parties have

submitted on this matter.

So far as the tentative rulings are concerned

on this, I don't know whether I have any tentative rulings.

I am leaning toward the position that once we determine what

the issues are, that any evidence that is in the documents

that is relevant to those issues should be received in

evidence.

MR. LITT: Let me begin, Your Honor, by discussing

briefly --

THE COURT: I have some problems with some of the issues,

but be that as it may, go ahead.

MR. LITT: Discussing briefly what the issues are,

what the circumstances are because I think the defendant's

papers make clear that at least as we view it that the

purported relevance of the documents essentially relates

to issues that are not permissible issues in the case at

all.

The case, this case is, in essence, a very simple

case, although nothing simple about the litigation of the

case exists.

But the case itself involves the following

circumstances: Mr. Armstrong was a member of the Church

of Scientology and active in the Scientology movement from

1969. He was a dedicated Scientology staff member who worked

full time for the church for many years.

L. Ron Hubbard is the founder of the religion

of Scientology. He is revered by Scientologists. He is

considered the sole source of doctrine for the Scientology

religion, and his writings and researches are the basis of

the religion, and as such, be holds the title of founder

and holds an esteemed position to any Scientologist, which

is beyond really what one who has not had direct experience

with it can characterize, and it really can only be understood

in the context of a characteristic ken that a religious

follower has for the person who started that religion.

Mr. Armstrong in 1980, January or February of

1980, petitioned within the church that he be appointed

as an archivist to gather up materials that had been found in

a building on church property in a place out in the desert

called Gilman Sot Springs, it turned out to be a great deal

of old material of the Hubbards which had been gathered,

as Mrs. Hubbard will demonstrate eventually and Mr. Armstrong

does not dispute, over years of marriage and from Mr. Hubbard's

life before the marriage. And these materials had been

gathered up in 1959 when the Hubbards left Washington, D.C.

and stored for many years by them privately, and then moved

to church property and stored there.

These were come upon. Mr. Armstrong says that

they were come upon in the course of what he calls a shredding

party. Regardless of the circumstances, they were come upon

and according to him, realizing the importance of these

documents, he took them to this superior. The upshot of

it was that it was deemed that these materials were of great

importance and great value and should be preserved and

maintained and protected, and Mr. Armstrong petitioned to

hold the post to do that. He petitioned to Mr. Hubbard,

with copies to various church Scientologists for approval.

He got back a note, which it is not clear whether

it was written by Mr. Hubbard or not, but that essentially

approved his holding this position. This was a church

position. The evidence that will be given to establish that,

including from Mr. Armstrong himself, although he waffles

on the subject, is undisputed.

So he sets about gathering up these materials.

The materials that he gathered were the most private of papers.

They were letters between Mr. Hubbard and his current wife,

Mary Sue Hubbard, the intervenor. They were letters between

Mr. Hubbard and his first two wives. They were letters between

Mr. Hubbard and his parents.

There was a marital agreement between Mr. and

Mrs. Hubbard. There were private journals of Mr. Hubbard

through various years of his life. There were Naval records.

There was correspondence with attorneys. There was business

correspondence.

There were letters with friends. There were

certain writings concerning international activities of the

church.

There were manuscripts, tax records, divorce

records. This is the type of things. These were all things,

by the way, that were given to Mr. Flynn.

Mr. Armstrong, as part of his function as

archivist, was responsible to provide information to a man

named Omar Garrison. Omar Garrison had contracted with the

Scientology publishing house to write an authorized biography

of Mr. Hubbard which was subjected to approval, and he was

given access to various of these materials from these archives,

and without getting into whether it was fully understood

by Mrs, Hubbard that this was, in fact, going on, nonetheless

it clearly happened under the auspices of the church, and

we are not making an issue out of it in this case.

Mr. Armstrong gave these materials to Mr. Garrison.

By Mr. Armstrong's own testimony, he gave them to Mr. Garrison

solely for use on the biography. It was not done for any

other purpose. He didn't think he had the right to use them

for any other purpose. Mr. Garrison didn't think he had

the right to use them for any other purpose. They were

considered confidential by both of them. They had only this

limited purpose which had control on it because ultimately

the manuscript itself was subject to review.

Mr. Armstrong at a certain point became

disillusioned, for whatever reasons, with the church. He left

the church in December of 1981. Prior to doing that,

he made copies of voluminous amounts of material to give

to Mr. Garrison because he felt that Mr. Garrison should

be sure to have access to that.

He then says that he helped Mr. Garrison on the

biography for a period of time. Mr. Garrison says that he

did up until pay of 1982. In May of 1982, Mr. Armstrong

took a letter, a private, and by his description, extremely

private letter of Mrs. Hubbard to Mr. Hubbard and took it

to Clearwater, Florida and showed it to Mr. Flynn.

The conversation that took place between Mr. Flynn

and Mr. Armstrong I do not know the details of because it

has been consistently asserted that it is protected by the

attorney-client privilege. Nonetheless, subsequently

Mr. Armstrong went to Mr. Garrison and asked Mr. Garrison

if he could take copies of various materials. He said he

needed them for his case. They were legally related, and

in the course of the next several months he made copies of

8 to 10,000 pages of these private materials which were

provided either to Mr. Flynn and later in, I believe it was,

a second delivery also to the firm of Contos & Bunch.

Those are the materials that are under seal. Those

are the materials that are at issue in this case and the

materials are what I described to the court earlier. What

I picked out are things that have been established were sent

by Mr. Armstrong to Mr. Flynn or to the firm of Contos &

Bunch.

Now the issue, therefore, is whether or not these

private materials can be used by the defendant and introduced

into evidence. We have made clear our position that we will

not introduce the evidence -- I am sorry -- the documents.

By not introducing the documents, we are foregoing from a

legal point of view a substantial issue in the case because

the documents are very private documents, but because we

are not prepared to vindicate our rights solely by giving

them up in the very course of doing it, we have chosen to

limit the issue, and we will present testimony that simply

categorizes the nature of the documents in the way that I

stated before, most of which testimony comes from

Mr. Armstrong.

These are letters and correspondence. They are

this period, they are that, most of which Mr, Armstrong has

testified to.

Now, in light of that issue, the defendant has

put forward certain theories of the relevancy of this. We

don't intend to introduce them, and given the fact that all

we are doing is providing general categorizations, most of

which come from Ms. Armstrong, we are not opening up in any

way in our case the contents.

The defendant has put forward a variety of theories

as to why it is relevant, the most important of which I will

address last, and that is his public policy theory. I will

say that because that theory, I think, is the real theory

on which he rests his argument of the relevance of the

documents, but let we briefly speak to the other theories

that he puts forward.

He says first it is relevant to damages. It

is not relevant to damages because providing a private letter,

even if the contents of the document do not speak to anything

particularly private, is an invasion of privacy and therefore

we are entitled to proceed strictly on the fact that these

were private materials that were provided in an unauthorized

way, and if we don't rely upon the contents of those materials

to establish damages, which we do not, then the defendant

is not entitled to argue that the contents show that they

are not private because we are not arguing that the contents

show that they are private. We are arguing that the nature

of the material is private.

If you write a letter to your spouse and in it

all you do is talk about what happened in court today, which

the whole courtroom saw, you are entitled to an action for

invasion of privacy for somebody improperly gaining that

letter and taking it from you and showing it to someone to

whom you did not authorize it, and you could rely strictly

on the fact that it was a private letter, and if you didn't

argue that the contents were particularly private and rested

solely on the fact of the privacy of the material in its

general nature, then the defendant would have no reason to

argue that the contents aren't private. Only if you asserted

that there was something independently private about the

contents would you do this.

So, we rely upon the general characterizations.

They are journals. We rely really on Mr. Armstrong.

Mr. Armstrong says these are private materials. Mr. Armstrong

says they are confidential materials, and it is on that that

we are preparing to put forward our case.

So, they are not relevant for damages. It is

contended that they are relevant because the facts in them

are in the public record. The problem is that this confuses

the issue. We are not talking here about a particular fact.

We are talking about providing copies of private documents.

Therefore, if one of the facts in the documents is private,

given the way that we are framing the case, it does not matter.

Again, only if we were asserting the contents

of the documents themselves as an independent basis would

this be relevant. What facts are in those documents and

whether any of them have ever been published anywhere or

not is not relevant in light of the way that the case is

being framed by us and in light of the way that we will put

forward the evidence which is without reference to the contents

themselves of the documents.

Therefore, the only real issue has to do with

the public policy issue because if there is public policy,

the defense is not available which, as we will demonstrate

it is not, then the damages theory and the publication

theory does not apply.

The most that could be done on the publication

theory is to show that a particular document that is under

seal, there is a public copy of. In other words, if Mr. Flynn

contends that there is a Naval record that was already in

the public record, then it could be put forward that that

document was not private. That is at least discoverable

although we would contend that is not a defense because since

they were taken from Mr. Hubbard or from the church or

Mr. Garrison, they were private materials, and the fact that

some other copy existed in the public record did not obviate

their privacy.

But even on that basis, it becomes relevant.

That is the only basis on which any documents -- and that

would be by introducing the public record documents and then

a determination could be made at that point, and we would

frankly, if necessary, enter into stipulations as to whether

or not it is the same as the documents under seal without

introducing the documents under seal. So that the heart

of this comes down to quite an extraordinary public policy

issue.

Now, in discussing that issue, we would suggest

to the court that the court should understand the context

in which we are dealing. The real theory that the defendant

is advancing and especially as it applies to the document

is to accomplish through the vindication process what they

were not entitled to accomplish on their own, to wit:

Mr. Armstrong takes the documents. Court restrains his use

of the documents. Requires them to be put with the court.

Requires Mr. Flynn and requires the firm of Contos & Bunch

to return the documents.

Why were the documents taken? So that they could

be used by them against Mr. Hubbard, against Mrs. Hubbard

and against the church.

Now we come to trial. They weren't allowed to

do it by taking them. What they want to accomplish is to

be allowed to do it under the imprimatur of this court on

the theory that it is evidence. We have cited cases that

talk about the dilemma that a party seeking to vindicate

privacy rights faces in that there is a danger that the very

process of vindication will intrude worse than what occurred

originally, and we face the potential problem of that in

this case, and I think it is critical for the court to

understand that.

They want these documents spread on the public

record for use elsewhere. That is the intended objective.

It is an effort to engage in, and the theory that is being

put forward is an effort to engage in trial by calumny.

It is a desire to intrude into these private materials so

that they can be used in the public arena in various ways

as part of what is in reality a very intense litigation battle

and public battle that exists throughout the country in which

Mr. Flynn is involved with the church, and I am not asking

for the court to rule on the merits of these issues, but

the implications of how the defendant is trying to utilize

the processes of this court, I think, are important. It

is important to understand that context.

Now, before addressing the public policy issue

as such, I think that it is important to first speak to the

standard that the court has to use with respect to the

documents. I argued before relevance and, in fact, it is

our contention that under traditional relevancy standards

these documents are not relevant given how we have framed

and intend to frame the case, But the standard, in fact,

is not relevant. The standard, as we have demonstrated in

our brief, is that because these documents are private

documents, that they must be more than relevant once it is

established that the documents themselves are private and

are entitled to the privacy protections of the United States

Constitution and the California Constitution, and I will

not elaborate on the discussion in the brief.

We cited several cases; Boyd, Couch, United States

versus Hubbard, Nixon, all of which clearly establish that

materials of the type that we are dealing with here are private

papers.

The cases cited in a rather weak effort to oppose

that concept are essentially cases having to do with the

scope of the exclusionary rule and nothing else, and it is

very clear that the materials themselves are private documents.

Now, once they are private, the traditional

standards for infringing upon constitutionally protected

rights that are fundamental rights comes into play. The

California cases in the context of discovery are crystal

clear on that. Britt versus Superior Court is crystal clear on

that. Therefore, what must be shown, a compelling state

interest in disclosure or in use in this case where there

are no less intrusive means available. That is the standard

that must be met in order for this court to determine that

these documents may be admitted into evidence.

We have cited numerous cases that show that

material frankly much less private than what we are dealing

with here has been protected.

In the case of Porten, student transcripts that

were on file; in Valley Bank of Nevada, financial data; in

Board of Trustees versus Superior Court, personnel files

were not discoverable.

These are materials frankly that on their face

are not nearly as private as the materials that we are talking

about here. The defendant cannot begin to meet this standard.

We have already said that we are not going to

introduce the documents. We have already said that the

defendant admits these categories in general. The reference

to the categories, which is all that is needed, is far less

intrusive than permitting the contents of the documents

themselves.

Now, since the materials meet the constitutional

requirement, it is the burden of the defendant to demonstrate

that that constitutional right way be infringed by the

introduction of the documents. In the exhibit list submitted

by the defendant, the list for the documents under seal says

"Documents under seal" which is reflection of what we are

talking about.

Any admission of the documents at all could only

be done based on a particularized finding by this court that

the individual documents, and only those portions of the

individual documents, meet this test. It is impermissible

for a sweeping admissibility of documents, even if any

documents do come in which I will turn to more in a moment,

but I wanted to emphasize this point. But any determination,

if the court finds that any of these theories are permissible

or potentially applicable, then on a document by document,

and for that matter, paragraph by paragraph basis, a

determination using this standard must be made by the court.

We cited to the court the case of United States

versus Hubbard which is a case fn which documents were used

in a suppression hearing, and the issue was whether or not

the documents would be sealed or unsealed.

Now, we are in a slightly different procedural

posture here, but it was the contention of the appellant,

the church, that it had an interest in maintaining them under

seal. They were private materials, just as we are maintaining

that we have an interest in their not being introduced into

evidence and their being held under seal which they already

are.

The court recognized the church had an interest

in their being under seal, that it had a privacy interest,

that the constitutional analysis that I have set forth applied,

and that therefore the general order on sealing them was

illegal. That any unsealing order had to be gone through

on a document by document basis with written findings

justifying under the constitutional standards the intrusion

involved, and as to the theory that evidence of criminality,

which is a somewhat vague issue that seems to get thrown

around in this case, was relevant, that that would have to

be determined, and then that was not a generalized basis

but was simply a factor in the court's making, engaging in

this balancing process to see whether or not the privacy

interest was outweighed based on the standards that I have

set forth.

Now before I turn to the merits of the defendant's

public policy theory, I just want to note that at the time

of any such document by document.determination, if it were

to occur and we don't think that we should ever get that

far, the other evidentiary issues we would raise at that

time -- it is obviously very difficult to deal with whether

something is hearsay in the abstract. So it seemed to us

that the best procedure was to reserve those questions until

we knew what, if any, documents we were dealing with, and

I wanted to note that.

The public policy defense, as it is called,

defendant contends that he was justified in invading the

Hubbard's privacy, in taking other people's documents, in

copying other people's documents, in providing them materials

to use against them essentially on the ground that it exposed

alleged frauds of Mr. Hubbard or the church.

We will establish first that this is no defense

at all. It is not a recognized defense, It does not exist.

The cases cited by the defendant do not apply or even comply

to the circumstances here and secondly, we will establish

that even if such a defense existed and were applicable here,

that the defense in the context of this case is barred by

the First Amendment because the issues of trying to put on

trial alleged fraudulent representations concerning

Mr. Hubbard and his role in the church are themselves barred

by the First Amendment. They are not justiciable and since

they are not justiciable, they cannot be a defense.

Before I discuss the first prong of our analysis,

which is this is not a defense, I want to read from what

the defendant says they want to show. The defendant says,

they set forth in their opposition to our motion the things

that they want to establish through introducing these documents

to show that Mr. Armstrong was justified in doing what he

did, and they say the following:

"The documents which are under

seal in this court prove that these representations" --

we never know really what they are -- "are

false and that plaintiff and intervenor knew

they were false when made."

Then they state what they establish, They

established that L. Ron Hubbard is a fraud. He doesn't have

the qualifications that have been claimed. His personal

life and practices contradict how he is represented. Promises

and claims made by Scientology are false. Mr. Hubbard has

controlled the Church of Scientology for a long time.

Mrs. Hubbard was his agent in effectuating that control.

Mr. Hubbard owns the Church of Scientology as well as controls

it. There is no corporate integrity to any Scientology

organizations.

I set these forth because the defendant from

their own mouth or the defendant has demonstrated precisely

the First Amendment problems inherent in the whole theory

that he wishes to advance which is, in essence, to argue

that Scientology is a fraud. That is the heart of what this

is about. That is what they are trying to do as I will

elaborate.

First, leaving aside the constitutional issues

and taking simply the issue of whether or not this

public policy theory is a defense. The defendant has made an

extraordinary number of allegations without any specificity,

particularity, definition, character. He says that there

have been various misrepresentations regarding Mr. Hubbard's

background that aren't true.

We don't know when they were supposed to have

occurred. We don't know where they were supposed to have

occurred. We don't know the circumstances under which they

occurred. We don't know who said them.

What we do know is that Mr. Armstrong said that

the whole time he was the archivist people were coming to

him to check with him to make sure that facts about Mr. Hubbard

were accurate, and now he wants to use generalized statements

that in the past misstatements have been made to justify

his impermissible and tortious conduct here.

Such generalized statements do not come close

and cannot come close to constituting a fraud. You cannot --

it is not fraud to argue that anything that someone contends

is incorrect amounts to fraud. Fraud is a very narrow

standard. It is a very high standard, and I note preliminarily

simply that even if fraud were a defense, which as we will

see it is not, that they have not come close to establishing

that they are, not to mention the fact that many of these

facts can simply not be established to be fraudulent as a

matter of law, and that allegations like this characterize

this litigation, and it creates a difficult situation.

We are in court trying to vindicate our rights,

and what we are faced with is a barrage of wild allegations,

all over the board. The court heard Mr. Flynn the other

day. Grand juries here, this here, that here.

It is a situation in which to have access to

the courts, it is like running a gauntlet of allegations

of every sort to deal with a simple, straightforward issue

of whether Mr. Armstrong was entitled to do what he did.

The church and Mrs. Hubbard are not on trial in this

proceeding.

Now, the defendant's argument that there is a

public policy exception relies on two main cases, copies

of which the defendant provided to the court, and this is

again leaving aside the First Amendment issue. First they

cite the Pearson versus Dodd. That was the case in which

Drew Pearson and Jack Anderson published information concerning

Senator Dodd. It was information that one or more of

Senator Dodd's employees had taken from his files and given

to Drew Pearson and Pearson knew that that had gone on.

The court was faced with the issue of whether or not, not

Dodd's employees who took the information, who took the

documents and provided copies, but whether or not Drew Pearson

and Jack Anderson could be liable based upon the press

publication of the information, and as such, it was a public

disclosure of private facts case.

The court said in dealing with this, and it is

a mixed tort analysis of invasion of privacy and constitutional

analysis, basically said that where information is published

in the press that is of general interest, that is a factor

and in this case was a decisive factor that can be taken

into account and should be taken into account. It is the

traditional newsworthiness issue on invasion of privacy and

public disclosure of private facts.

So, in an invasion of privacy analysis there

are certain things about me which are not newsworthy even

if I am a public figure and they cannot be published, but

if I am a public figure and they are published and they are

newsworthy, they are protected both as a defense to the tort

but also more fundamentally constitutionally protected.

However, the court specifically said we are not

here deciding Senator Dodd's employees, and Mr. Armstrong

is in the position of Senator Dodd's employees. He went

and improperly took these materials. He copied then. He

knew it was for an improper purpose and he sent them off.

He is in the position of Senator Dodd's employees.

What the court said there is, "We don't have

them before us. We will assume that what they did was

improper although we don't decide it."

And the court stated in making the distinction

between a publication situation, such as was the issue with

Drew Pearson, and an intrusion situation said the following,

and this is a quote:

"Wherever there is intrusion,

the intruder should generally be liable

whatever the content of what he learns."

The concurrence in that case was very careful

to say that this case is confined to the fact that there

were stipulated facts. It is a narrow case. It is a press

case, and it should not be taken for more than what it was,

and the defendant is trying to take it for more than what

it is. The defendant is trying to use it for the proposition

that a public figure is subject to tortious conduct if you

believe that the tortious conduct will give you information

that is newsworthy.

That seems to be the defendant's theory. That

is certainly the proposition that they are arguing from this

case, and this case does not come close to that.

Pearson versus Dodd is essentially a First

Amendment press case under New York Times versus Sullivan

and its progeny, and the whole question of press privilege

in the context of publication.

The second case cited by the defendant is Willig

versus Gold. This is the other main case that they rely

on, In Willig versus Gold, Gold, the defendant, had acted

as a broker for Willig, the plaintiff. He had particularised

information that Willig had made specific false representations

to a buyer just in a time frame that is contemporaneous with

the activities in the case.

He told the buyer -- Gold, the agent, the broker,

told the buyer about this. Willig sued, the plaintiff sued

saying, "You breached a fiduciary duty and you breached it

because you had learned that I had made this misstatement

to this person in confidence."

The court said that it was not a breach of

fiduciary duty for him to have disclosed this information.

There is no question there of him having gone into the

plaintiff's office and taking copies of confidential materials.

The issue in Willig versus Gold was after this was over,

he went to the buyer and he said, "Hey, I think you got ripped

off. You got cheated."

That is what happened there. There is no invasion

of privacy, and the court said informing someone of this

is permissible, and it is not a breach of fiduciary duty.

That is all that case stands for. It is a case from 1946,

and to use it for the proposition that the generalized right

to privacy, which every California Supreme Court decision

discussing has given expansive interpretation to, to argue

that this case from 1946 stands for the proposition that

is being put forward here that you can willfully take someone's

private documents on your belief that it will expose them

as a fraud is simply so far from what the case stands for

that it is really hard to respond to it. But suffice it

to say that under the facts, the case is not close to what

we are dealing with here.

The last authority on which the defendant relies

is the Restatement of Agency Section 395 Comment (F), which

is cited in Pearson versus Dodd and in reality is pretty

much parallel to Willig versus Gold. What that says is one

can reveal information. It doesn't say anything about taking

things. One can reveal information concerning one's principal

if the principal is committing or about to commit a crime.

So what this does is it carves out a very discrete

exception to the confidentiality of a fiduciary relationship.

If one is committing or will in the future commit a crime,

you can tell the interested party. Essentially that is what

that says.

Obviously there are no facts and circumstances

here that begin to come under this. The court should be

aware that the allegations that Mr. Hubbard is a fraud have

been made by Mr. Flynn for five years, have been made by

others for decades. That Scientology is a fraud. That these

statements are fraudulent.

No law enforcement agency has ever expressed

any interest in prosecuting the claim that statements about

Mr. Hubbard's background are a fraud. The theory that this

is evidence of crime, not to mention Mr. Armstrong's own

statement that it wasn't going on because he was making sure

and people were coming to him to make sure that information

was accurate.

Now, let me pose to the court in terms of analyzing

the logic of defendant's position the following questions

or hypotheticals: There are a series of public figures,

well known public figures who information has come out in

recent years made substantial misrepresentations.

John F. Kennedy was nominated for the vice-

presidency in large part upon his purported authorship of

"Profiles in Courage" which there is some substantial question

about whether he ever wrote.

Franklin Delano Roosevelt had a mistress for

years while he and his public relations people asserted the

healthy state of the marriage between Franklin and Eleanor

Roosevelt.

Joseph Conrad, the famous English writer, promoted

the fact that he had extensive maritime experience and had

risen to the rank of captain. It turns out that this is

simply not so. If you ever read any of the books of Conrad,

you know this his books sold on the basis of his abilities

to describe scenes having to do with the sea.

Elliot Janeway, the noted economist, has claimed

to have graduated from Cornell University. According to

a recent press report, he never graduated from Cornell

University. He attended Cornell University.

Jimmy Carter had ghostwritten his autobiography

shortly before he began his campaign for the presidency.

It was not publicly disclosed that it was ghostwritten.

I use these examples simply to say are we now

in a situation where any person can -- after all these are

arguably misstatements of fact about an important public

figure. Is there really a license to engage in the kind

of conduct that defendant is asserting here? The implications

are staggering. The ability for self-defining justification

is enormous.

It makes any public figure a legitimate object

of theft, lies, deception, dishonesty, maybe even not only

public figures, and how is this done? It is done in the

name of public interest.

I mentioned to the court the other day and we

will discuss later on the issue of the Fair Game Doctrine.

THE COURT: Maybe it's a good time to take a recess.

We've been going for quite a while.

(Recess.)

THE COURT: We are back in session. You may continue,

counsel.

MR. LITT: Thank you, Your Honor,

Essentially, Your Honor, the theory that the

defendant is putting forward is, to paraphrase their

characterization of what they call the Fair Game Doctrine,

is that the defendant was entitled and any defendant in the

position would be entitled to lie, cheat, steal from another

and it would be justified by public policy, and that is really

the heart of their defense.

Now, I have spent some time on cases that they

have cited in support of their proposition, but I think more

to the point are the cases that clearly show that this is

not a defense at all, the cases that have not been noted

by the defendant in his papers.

We have cited to the court the cases of Snepp

and Marchetti. That is a United States Supreme Court case

and the Circuit Court of Appeals case, federal decision.

It is a former CIA employee signed a nondisclosure agreement

with the CIA. Wrote a book and put it in the hands of his

publisher, and the CIA moved on the grounds that he had not

cleared the book with the CIA to enjoin the publication of

the book and to impose a constructive trust on any profits

that had been made.

The Supreme Court said -- and the argument was

this information is in the interests of the public and this

is a restraint on information that is of great public

importance, information which, among other things, would

show misdeeds by the CIA.

The court said that there had been a clear

agreement. There was a confidential relationship, and there

was no first Amendment problem here at all. The injunction

was entirely proper and the CIA was entirely within its rights

to restrain the dissemination of information that he had

learned in the course of his employment with the CIA.

Perhaps the closest case to ours is a case cited

in our papers, Dietemann versus Time. That is a Ninth Circuit

case decided under California law.

Dietemann versus Time is quite an interesting

case because, in fact, it is much more compelling than those

asserted here. The court squarely decided against the theory

being advanced by the defendant. In Dietemann two reporters

who were working with a district attorney had information

that an individual was practicing medicine without a license

and was engaging in fraudulent conduct and saying that he

could heal people through various unscientific ways.

After talking with the law enforcement officers

and basically pursuant to an arrangement with them that by

ruse they would gain access to this man's home and get

information about him, the reporters went to this man's home.

Said they had been sent there by some individuals who had

referred them. Got inside the home and had with them a camera,

a hidden camera, on which they took pictures and a hidden

microphone on which they recorded events that went on there.

the individual involved, based upon the evidence

obtained by these people, was prosecuted for practicing

medicine without a license. The man sued in federal district

court and the defendants, the reporters who had gained access

to his home through the ruse, argued that they were entitled

to do what they did because it was part of their news gathering

function, that public policy and the First Amendment protected

their doing that and that the information showed that the

man was a quack and a fraud, and this fact had been used

in evidence to demonstrate that he was acting illegally and

that clearly they were entitled to do this.

The court's response, and I am quoting, was as

follows:

"The First Amendment is not a

license to trespass, steal or to intrude by

electronic means into the precincts of another's

home or office. It does not become such a

license simply because the person subjected to

the intrusion is reasonably suspected of

committing a crime."

That is the theory of the defendant in much less

compelling circumstances because this was a press case

and the press had special protection under the First Amendment.

The court clearly rejected it and it seems to me that the

harmony of all these different decisions from Pearson versus

Dodd and Dietemann versus Time is essentially that acts that

are impermissible as such, that constitute improperly going

into one's home, taking someone else's things, there is simply

no defense to that. There is no public policy defense to

that.

Under certain circumstances there may be a public

policy defense to simply information, publication or receipt

and use of it that otherwise might be wrongful but where

the acts involved are direct intrusions and violations of

the person's rights, there is simply no public policy defense.

That is what Dietemann clearly says, and Pearsons versus

Dodd, in fact, says the same thing.

THE COURT: Well, of course, one of the problems I

have is that I gather your complaint is couched in terms

of, at least on behalf of Mrs. Hubbard, deals with invasion

of privacy and deals with the idea of intrusion. Yet from

everything that's been submitted to me, it appears, and I

am not entirely sure of all that will be submitted, but

Mr. Armstrong came into possession of all this information

with the consent of the church or Mr. Hubbard or possibly

even Mrs. Hubbard as to some of it, either actually or apparent

consent.

MR. LITT: But limited consent.

THE COURT: Well, be that as it may, there was no spying

out, no subterfuge as I gather to gain any information.

That the gravamen of the problem is because he didn't return

it when requested or turned it over to his attorney.

MR. LITT: No, he didn't turn it over to his attorney.

He gave it to Mr. Flynn, an attorney, and he has admitted

that that was for use in other cases. So that the argument

that they were given to his attorney --

THE COURT: Maybe that is a publication if he gives

it to somebody else.

MR. LITT: It is not a publication under public

disclosure and private facts cases. Publication has to be

a public form of dissemination.

It is, however, a clear violation of privacy

under California law. In the Porten case, it involved exactly

transferring a copy of a document in the rightful possession

of the university to another person without permission.

They had it only for a limited purpose. They gave a copy

of it to another party outside of that authorized purpose.

The court said --

THE COURT: What case is that?

MR. LITT: Porten, P-o-r-t-e-n. I can give the court

the cite. It is 64 Cal.App.3d 825, Porten versus University

of San Francisco.

THE COURT: All right, go ahead.

MR. LITT: The other thing I think that is important

is that Mr. Armstrong did not have access to these materials

by his own testimony for any purpose other than to put them

in the archives and give them to Mr. Garrison. He went to

Mr. Garrison and said, and Mr. Garrison knew that and

Mr. Garrison testified to that, that he only had the documents

for work on the biography, and that the biography itself was

subject to control.

Mr, Armstrong went to Mr. Garrison and basically

asked him, and Mr. Garrison agreed, and I think also could

but isn't subject to a tort action, to give the materials

which they both knew were for a purpose beyond the terms

under which they had been provided them.

In terms of the question that the court raises,

an employee by definition has access to materials. It is

clearly not the case that an employee therefore can use them

for any purpose in a privileged way.

THE COURT: Now you are talking about a breach of

fiduciary duty, He is not an employee of Mrs. Hubbard.

The church is not suing him for invasion of privacy.

MR. LITT: Well, to some extent that is true and to

some extent it is not true. We would contend that he clearly

has a fiduciary duty to Mrs. Hubbard even though he wasn't

an employee of Mrs, Hubbard because he knew that he had her

materials and he had a duty to keep them, and we think the

evidence will, in fact, support and justify a jury instruction

on that issue as well.

The church invasion of privacy is somewhat more

problematic. Where the privacy interest in particular comes

in is that the information was private, the documents were

private and he knew they were entrusted with maintaining

their privacy, and the fact that they were private is an

element of his breach of fiduciary duty, but the point is,

in fact, it is an invasion of privacy and this is what Pearson

versus Dodd says.

It says it is an intrusion and it is talking

in the context of the facts of Pearson versus Dodd. It is

an intrusion to do what was done here. That was the clear

implication of Pearson versus Dodd, and what these employees

who had access to all of these materials which were given

to Drew Pearson engaged in was an intrusion. In fact, the

court assumed that they engaged in an intrusion without

deciding, by taking copies of these things which they clearly

had access to but using them for a different purpose, and

there is substantial law cited in our trial brief that talks

about the fact that unauthorized use or unauthorised disclosure

constitutes an improper invasion of privacy under California

law.

That is not the same thing as public disclosure

of private facts. That is precisely the issue in Porten.

The court says this isn't a public disclosure of private

facts case because there is not publication within that meaning

because it has to be relatively broadly disseminated, but

it is an invasion of privacy and it is actionable.

To take another example, and this was discussed

also in the Dietemann versus Time, is the Pentagon Papers

case. Now the New York Times, just like Drew Pearson, was

able to publish the Pentagon Papers, but Daniel Ellsburg

was able to be prosecuted for giving them to them, and that

is the distinction. It is one thing where the press receives

something and it can use it. Was Daniel Ellsburg privileged --

THE COURT: Well, that case was never resolved.

MR. LITT: No, it wasn't resolved.

THE COURT: It was dismissed. We don't know what the

law would have been had it resulted in some conclusion.

MR. LITT: But the law is quite clear, and where it

has been raised, it has never been permitted.

The draft cases where Father Berrigan went into

various military installations and raised a defense that

he was justified in doing it to stop the war. Those defenses

have not been permitted.

The defense of justification and necessity, as

we explained in our memorandum, is extremely limited and

is not available in a criminal case.

Dietemann versus Time makes clear that in the

precise, not precise, but in almost totally analogous

circumstances where based on a purported relationship you

gain access to private information and then you use it in

a way which was not authorized and you engage in improper

intrusion or you engage in improper disclosure, that is what

Porten stands for, it is an invasion of privacy and there

is no defense of public policy under those circumstances.

If there is any such defense, it is only for

publication of newsworthy information, one, and conceivably

for a verbal communication that in and of itself doesn't

do anything wrong advising someone of discrete information

that you otherwise are obligated not to in connection with

commission of a crime, neither of which are the circumstances

here.

Other than that, those two arguable situations,

there is no such defense. There is no case establishing

that there is such a defense and every case that touches

on the issue clearly indicates to the contrary.

Let me give the court another example. That

is an example from this court, the PDID case.

Judge Olson recently heard a motion by the PDID

for the return of all the documents obtained through California

discovery in that case. The police department went into

court and said, "We want the documents back. Even though

they were lawfully obtained, the only purpose for which they

were obtained was this lawsuit. Now we are entitled to them

back, entitled to the copies back and all copies made from

the copies. We are entitled to those back."

The ACLU opposed the motion, arguing that there

was evidence of criminal and illegal conduct in the papers

in that case. That the public was entitled to know about

that information and that they were entitled to have it to

enforce the settlement that included certain standards

applicable to the PDID.

The court ruled that even though these documents,

unlike the circumstances here, were obtained completely

lawfully, the documents that had been provided to the ACLU

had to be returned and all copies had to be returned, and

this public policy defense in compelling circumstances where,

in fact, it could be established quite clearly that there

had been violations of law by the PDID was simply not

permissible. It was not a defense and the court so found.

This decision occurred only, I believe, last week.

Given these authorities, the proposition, the

extraordinary proposition that is put forward here for which

there is not one case, I have discussed all the cases that

are cited that come close to being on point that are cited

by the defendant. There is not one case, and every case

that reaches it in any form close to this, such as Dietemann

versus Time, clearly rejects this defense, and the reason

is obvious.

Let me g