Gerry Armstrong--Reporter's Transcript of Proceedings 04-30-1984 Case No. C 420153

§ What's New || Search || Legal Archive || Wog Media || Cult Media || CoW ^® || Writings || Fun || Disclaimer || Contact §

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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

NO. C 420153

REPORTERS' TRANSCRIPT OF PROCEEDINGS

Monday, April 30, 1984

Pages 393 throught 430, incl.

VOLUME 3

APPEARANCES:

(See next page.)

NANCY L. HARRIS, CSR #644
HERB CANNON, CSR #1923
Official Reporters

APPEARANCES:

For the Plaintiff:

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

For the 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 Defendant:

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

393

LOS ANGELES, CALIFORNIA; MONDAY, APRIL 30, 1984; 9:45 A.M.

-o0o-

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.

394

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.

395

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

396

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

397

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.

398

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

399

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.

400

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

401

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,

402

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.

403

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.

404

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.

405

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 Dragojovic 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

406

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

407

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.

408

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.

409

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

410

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.

411

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

412

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

413

dealing with.

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

414

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.

415

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.

416

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

417

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 marvellous

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.

418

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.

419

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

420

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

421

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

422

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.

423

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.

424

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.

425

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

426

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

427

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

428

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

429

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.

430

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.)

§ What's New || Search || Legal Archive || Wog Media || Cult Media || CoW ^® || Writings || Fun || Disclaimer || Contact §