Notice of Motion And Motion For Order Compelling Production Of Documents And Payment Of Attorneys Fees; Declaration Of Julia Dragojevic; Declaration Of Gerald Armstrong; Memorandum Of Points And Authorities In Support Thereof

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Armstrong 1
CONTOS & BUNCH 5855 Topanga Canyon Boulevard Suite 400 Woodland Hills, California 91367 Telephone (B18) 716-9400 Attorneys for Defendant and Cross-Complainant GERALD ARMSTRONG

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CHURCH OF SCIENTOLOGY OF CALIFORNIA, a California Corporation;
Plaintiff,
vs.
GERALD ARMSTRONG, et al.,
Defendants.

GERALD ARMSTRONG,
Cross-Complainant,
vs.
CHURCH OF SCIENTOLOGY of CALIFORNIA, a California corporation, L. RON HUBBARD, CHURCH OF SCIENTOLOGY INTERNATIONAL, RELIGIOUS TECHNOLOGY CENTER, and DOES 1 through 100, inclusive, Cross-Defendants.
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No. C 420 153

[SEVERED ACTION]

NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PRODUCTION OF DOCUMENTS AND PAYMENT OF REASONABLE ATTORNEY'S FEES; DECLARATION OF JULIA DRAGOJEVIC; DECLARATION OF GERALD ARMSTRONG; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF


DATE: April 15, 1985
TIME: 9:00 a.m.
DEPT: 57

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on April l5, 1985, at 9:00 a.m., or as soon thereafter as the matter may be heard in Department 57 of the above-entitled Court, located at lll North Hill Street, Los Angeles, California, Gerald Armstrong (hereinafter "Armstrong"), will move the Court for the following orders:

l. An order compelling Cross-Defendant Church of Scientology of California (hereinafter 'California Church") to produce for inspection and copying the documents described in Request Nos. 1, 2, 3, 6, 7 and 13 of the Request for Production of Documents served upon Plaintiff on August 2," 1984. The California Church and its attorneys have failed to produce said documents, which are more particularly set forth and identified in the attached Declaration of Julia Dragojevic.

2. An order directing the California Church to pay reasonable attorneys fees to Armstrong's attorneys in the amount of $500.00 due to Plaintiff's refusal to produce said documents, necessitating time spent in the preparation of the within motion and an appearance thereon.

This Motion is made upon the grounds that the documents and information contained therein are relevant to the subject matter involved in the pending action and are not privileged, and that Plaintiff's objection to said requests are without substantial justification.

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Said Motion is based upon this Notice, the pleadings, records and files herein, the attached Declarations of Julia Dragojevic and Gerald Armstrong, the Memorandum of Points and Authorities filed herewith and such other evidence as may be presented at the hearing of this Motion.

DATED: March 22, 1985

CONTOS & BUNCH

By: [signed]

JULIA DRAGOJEVIC

Attorneys for Defendant and Cross-Complainant GERALD ARMSTRONG

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DECLARATION OF JULIA DRAGOJEVIC

I, Julia Dragojevic, declare:

l. I am an attorney at law, duly licensed to practice before all of the Courts of the State of California, and am an associate in the law firm of Contos & Bunch, attorneys of record for Armstrong, herein.

2. The Request for Production of Documents, which is the subject of this Motion, was served in connection with a Cross-Complaint filed by Armstrong on September 17, 1982, against, among others, the Church of Scientology of California. The Cross-Complaint was severed by order of Judge Lawrence Waddington from the underlying Complaint and Complaint in Intervention filed respectively by the California Church and Mary Sue Hubbard against Armstrong. Both underlying Complaints were tried before Judge Paul G. Breckenridge, Jr., during a five~week trial from May 3 through June 8, 1984.

3. On June 20, l984, Judge Breckenridge issued a Memorandum of Intended Decision, a copy of which is attached hereto as Exhibit "A." Said Intended Decision was deemed the Court's Statement of Decision by Minute Order of August l0, 1984. The Memorandum of Intended Decision will provide this Court with Judge Breckenridge's Concise Findings of Fact and Conclusions of Law in an otherwise voluminous case.

4. The Cross-Complaint of Armstrong was originally severed upon the representations of counsel for the California Church that the underlying complaints would

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take only five days to try and that the Cross-Complaint would require months of trial. As it turned out, the trial of the underlying actions consumed approximately five weeks of trial time. During the trial, however, numerous issues of the Cross-Complaint were raised and evidence thereon was submitted.

5. The Cross-Complaint alleges causes of action for fraud, breach of contract, intentional infliction of emotional distress, tortious interference with contract and libel. Because the file in this action is so voluminous, a copy of the Cross-Complaint, as amended, is attached hereto as Exhibit "B." Essentially, the Cross-Complaint alleges that Armstrong was fraudulently induced to join the Scientology organization through the misrepresentations of Cross-Defendants California Church and L. Ron Hubbard (hereinafter 'Hubbard") regarding the background and accomplishments of Hubbard, as well as false promises by the California Church as to what Armstrong would obtain as a paying member of Scientology. Further, the Cross-Complaint alleges that Cross-Defendants intentionally inflicted emotional distress by engaging in harassment of Armstrong by hiring private investigators to follow him and peer through the windows of his home, among other things; by taking items entrusted to his care; by causing him tremendous fear, trepidation and anxiety in declaring him a 'Suppressive Person' subject to the Fair Game Doctrine of Cross-Defendants which provides that a Suppressive Person "may be deprived of property or injured by any means by a Scientologist without any

-5- discipline of the Scientologists. May be tricked, sued or lied to or destroyed.' The Cross-Complaint also alleges that Cross-Defendants libeled Armstrong by labeling him a 'Suppressive Person' and by publishing and circulating a document entitled "Suppressive Person Declare Gerry Armstrong," which accuses Armstrong of criminal behavior, among other things. A copy of said Suppressive Person Declare--Gerry Armstrong is attached hereto as Exhibit 'C.'

6. On August 2, 1984, Armstrong served a Request for Production of Documents upon the California Church. A copy of said Request is attached hereto as Exhibit 'D.’ A response to said Request was served on August 23, 1984. A copy of said Response is attached hereto as Exhibit 'E.’ Of fifteen requests, the California Church produced no documents. The California Church did, however, indicate in response to five of the requests that the documents were either in the process of being compiled or had not been found.

7. In order to obviate the necessity of a Motion to Compel, Declarant telephoned John G. Peterson, counsel for Cross-Defendant Church of Scientology of California, on September 13, 1984. At that time Mr. Peterson was not in, and Declarant left a message. On September 14, 1984, Declarant again called Mr. Peterson, who was not in. A message was left. On September 17, 1984, Mr. Peterson returned Declarant's call, but Declarant was not in the office. Upon Declarant's return to the office, Declarant telephoned Mr. Peterson, but he was not in.

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On the same date, Declarant sent a letter to Mr. Peterson requesting a response as to whether or not his client would be willing to provide further responses to Requests Nos. 1, 2, 3, 6, 7, ll, 12 and l3. Declarant suggested that the matter be handled by telephone and indicated that continued attempts would be made to reach Mr. Peterson. A copy of said letter is attached hereto as Exhibit "F."

On September 18, 1984, Mr. Peterson telephoned Declarant, but Declarant was not in. Declarant then telephoned Mr. Peterson, who was not in. Mr. Peterson returned the call and stated that he would review Declarant's letter of September 17, 1984, and would review the relevant pleadings. He further stated that he would be in his office on September 19, and Declarant agreed to telephone him on that date once he had had the opportunity to prepare for a discussion. On September l9, 1984, Declarant telephoned Mr. Peterson, but was told by his secretary that he would be in deposition the entire day. Apparently, the depositions had arisen unexpectedly. Declarant then received a telephone call from attorney Michael Magnuson, associate counsel, who stated that he and Mr. Peterson would review the materials. Because Mr. Peterson was in deposition, Mr. Magnuson tentatively suggested that a conference call take place on September 20 in the afternoon. Mr. Magnuson advised that he would telephone Declarant on the morning of September 20 to set up the conference call.

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8. On the morning of September 20, Mr. Magnuson telephoned Declarant and advised that a conference call could not take place in that Mr. Peterson was involved in depositions on the 20th and 2lst. He suggested that a conference call take place on September 24. Because the time in which Declarant had to file a motion to compel was running out, Mr. Magnuson agreed to an extension to October l, l984. A copy of the letter confirming said extension is attached hereto as Exhibit "G."

9. On September 24, 1984, Mr. Magnuson telephoned Declarant and again advised that Mr. Peterson was unavailable. However, he and Mr. Peterson had discussed the matter and they were willing to go forward with the conference without Mr. Peterson's presence. Thus, Declarant and Mr. Magnuson reviewed the objections of his client to the Request for Production in an attempt to resolve all differences. After the conference, the California Church stood on its refusal to produce documents requested in Nos. 1, 2, 3, 6, 7 and 13. Thus, it is necessary for the Court to determine whether production should be compelled.

10. The following Requests for Production continue to be in dispute between the parties:

REQUEST NO. 1:

All originals and all copies of pre-clear or auditing files belonging to Gerald Armstrong.

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RESPONSE TO REQUEST NO. 1:

Objection. The documents sought are covered by the priest-penitent privilege, Evidence Code sections 1033 and 1034. Additionally, the request seeks to interfere in the internal affairs of a religious organization, thus the documents sought are protected by the First Amendment; and because these files contain personal notes and observations of ministers of the Church, their disclosure would constitute an invasion of privacy.

CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 1:

The California Church stands on its objection as set forth above.

ARGUMENT:

Cross-Defendant objects to this Request on the grounds of privilege (priest-penitent), First Amendment and invasion of privacy. The pre-clear or auditing files of individual members of the Church of Scientology of California or any other Church of Scientology contain information derived from allegedly confidential communications between the members and "auditors" of the Church of Scientology. The pre-clear files are essentially records kept by the Church of Scientology of counseling sessions known as "auditing." During such sessions, Scientology members are required to reveal the most intimate, painful and humiliating experiences, thoughts and events of their present and past lives to their auditors. The information is taken down by the auditor

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and supposedly kept in confidential pre-clear files. (See Declaration of Gerald Armstrong, attached hereto.) As more fully explained in the Declaration of Gerald Armstrong, Armstrong believed, when he became a member of Scientology, that all information disclosed by him to his auditor would remain confidential. It was only during his involvement with Scientology that he learned how the so-called "confidential" auditing information was used time and again to blackmail individuals. It was not until he left Scientology that he discovered that the use of 'confidential' auditing information for intelligence purposes existed as a written policy. (See Armstrong Declaration, p. 5, para. 8.) Further, during the trial of the underlying complaints, evidence was presented on the use of information contained in pre-clear files for purposes of intimidation and psychological abuse. In his Memorandum of Intended Decision, Judge Breckenridge discusses the fear of individuals who leave the Church of Scientology, knowing that it has retained the individual's pre-clear file:

'Each (person) has broken with the movement for a variety of reasons, but at the same time, each is, still bound by the knowledge that the Church has in its possession his or her most inner thoughts and confessions, all recorded in 'pre-clear (P.C.) folders' or other security

-10- files of the organization, and that the Church or its minions is fully capable of intimidation or other physical or psychological abuse if it suits their ends. The record is replete with evidence of such abuse."

And:

"The practice of culling supposedly confidential 'P.C. folders or files' to obtain information for purposes of intimidation and/or harassment is repugnant and outrageous. The Guardian's Office, which plaintiff headed, was no respecter of anyone's civil rights, particularly that of privacy."

Not only does Armstrong request the production of his pre-clear files because he fears the use of information for intimidation and harassment by the California Church, but because the information contained in said files are a chronology of his path through initiation, membership and departure from the Church of Scientology, contain his innermost thoughts and experiences, and, above all, belong to him. The California Church does not object to the request on the

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grounds of relevancy or materiality. Rather, it seeks to prevent Armstrong from obtaining his own written thoughts on the ground that the production would invade the priest-penitent privilege and would further invade First Amendment rights and rights against invasion of privacy of the Church.

With respect to the First Amendment argument, Armstrong does not seek to interfere with the internal affairs of a religious organization. Only the truth or falsity of sincerely held religious beliefs are immune from inquiry under the free exercise clause of the First Amendment. By requiring production of Armstrong's pre-clear files, this Court is not making an inquiry into the truth or falsity of religious beliefs, but simply making available to Armstrong information about himself which he disclosed to his auditor. This information would include such things as family background, scholastic history, medical history and anything and everything about the person, Gerald Armstrong.

The First Amendment objection is purely a smoke screen to misdirect the Court's attention.

The claim that production of pre-clear files would invade the privacy of the 'ministers of the Church' is unintelligible. As Judge Breckenridge found in his Memorandum of Intended Decision, the California Church is 'no respecter of anyone's civil rights, particularly that of privacy' in its use of information from pre-clear files to intimidate and/or harass individuals.

Thus, we are left with the objection based on the priest-penitent privilege. Said objection is discussed in

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the attached Memorandum of Points and Authorities. As the Court will see, said objection is misplaced and improper. As the Court will further see, auditing files have been ordered to be produced in other cases similar to Armstrong's herein.

REQUEST NO. 2:

All originals and all copies of Guardian's Office files pertaining to Gerald Armstrong.

RESPONSE TO REQUEST NO. 2:

Objection. The information requested is protected by the attorney work-product doctrine and the attorney-client privilege.

CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 2:

The California Church stands on its objection as set forth above.

ARGUMENT:

The Guardian's Office of the California Church is responsible for various functions including public relations, finance, legal work and intelligence gathering. The intelligence gathering ranges from the use of supposedly confidential information from pre-clear files (see Memorandum of Intended Decision, pages 10 and 12) to covert intelligence "operations" involving private investigators, bugging of phone lines, and general harassment.

Anyone who is considered an enemy of or critical of the Church of Scientology (which includes individuals in litigation with them) will be investigated by the Guardian's

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Office and may be subject to Guardian's Office intelligence operations.

Because Armstrong was the subject of harassment, including being followed and surveilled by individuals who admitted being employed by Cross-Defendant; being assaulted by one of these individuals; being struck bodily by a car driven by one of these individuals; having two attempts made by said individuals to involve Armstrong in a freeway automobile accident; having said individuals come onto Armstrong's property, spy in his windows, create disturbances and upset his neighbors (see Memorandum of Intended Decision, Appendix, pages 14-l5), Armstrong believes that the Guardian's Office of the California Church has files in which the subject of his harassment is documented. There is most likely more information in said files of which Armstrong is not aware, but which would be relevant to his causes of action for intentional infliction of emotional distress and libel.

Since the California Church has not identified any documents in response to Request No. 2, no intelligent decision can be made as to whether said documents are protected by the attorney work-product doctrine or the attorney-client privilege. The documents must at least be identified, and may subsequently require inspection by this Court to determine whether or not the objections interposed by the California Church are valid.

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REQUEST NO. 3:

All originals and all copies of correspondence of the Guardian's Office pertaining to Gerald Armstrong.

RESPONSE TO REQUEST NO. 3:

Objection. The information requested is protected by the attorney work-product doctrine and the attorney-client privilege.

CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 3:

The California Church stands on its objection as set forth above.

ARGUMENT:

Armstrong incorporates by reference the argument set forth with respect to Request No. 2, supra.

REQUEST NO. 6:

All letters, memorandum, notes and orders pertaining to the Suppressive Person Declare Gerry Armstrong of April 22, 1982, Flag Conditions Order 6664R.

RESPONSE TO REQUEST NO 6:

Objection. This request is over broad and to a large extent requests materials which seek to invade the internal workings of a religious organization which is protected by the First Amendment and seeks information protected by the attorney-client privilege and the attorney work-product doctrine.

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CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 6:

The California Church stands on its objection as set forth above.

ARGUMENT:

Armstrong's Third Cause of Action for Libel concerns the publication of two documents entitled 'Suppressive Person Declare Gerry Armstrong' on February 18, 1982, and again on April 22, 1982. Following the trial of the underlying action, the Court found as follows:

'On February 18, 1982, the Church of Scientology International issued a 'Suppressive Person Declare Gerry Armstrong,' which is an official Scientology document issued against individuals who are considered as enemies of the Organization. Said Suppressive Person Declare charged that Defendant Armstrong had taken an unauthorized leave and that he was spreading destructive rumors about Senior Scientologists.

Defendant Armstrong was unaware of said Suppressive Person Declare until April of '82. At that time a revised Declare was issued on April

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22, 1982. Said Declare charged Defendant Armstrong with eighteen different 'Crimes and High Crimes and Suppressive Acts Against the Church.' The charges included theft, juggling accounts, obtaining loans on money under false pretenses, promulgating false information about the Church, as founder, and members, and other untruthful allegations designed to make Defendant Armstrong an appropriate subject of the Scientology 'Fair Game Doctrine.' Said Doctrine allows any suppressive person to be 'tricked, cheated, lied to, sued, or destroyed." (See Memorandum of Intended Decision, Appendix, page 13.)

Armstrong has thus been charged with the commission of crimes and various other acts for which he has brought suit for libel. Documents concerning the Suppressive Person Declare Gerry Armstrong of April 22, 1982, are thus relevant and may lead to the discovery of further evidence. The California Church objects on the grounds that the request is over broad, invades the free exercise clause

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of the First Amendment and invades the attorney-client privilege and attorney work-product doctrine.

With respect to the contention that the request is over broad, Armstrong does not know what the California Church has in its possession regarding the Suppressive Person Declares in that the California Church has objected to answers concerning these documents. Armstrong should thus be entitled to see all documents relevant to said Declare.

With respect to the First Amendment argument, again, Armstrong does not seek to question the truth or falsity of any alleged religious beliefs. He seeks only to obtain relevant evidence of a libel which he alleges has been committed by the California Church and others. The United States Constitution gives every person the absolute right to believe what he wants, but does not create a license to do or say anything in the name of religion. Cantwell v. Connecticut, 310 U.S. 296 (1940). The California Church cannot hide behind the cloak of religion following the commission of a tort. The free exercise clause of the First Amendment has never sanctioned such activity on behalf of a claimed religious organization.

With respect to the privilege arguments, an informed decision cannot be made as to whether or not the privilege applies without the identification of the documents or review of said documents by the Court.

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REQUEST NO. 7:

All letters, memorandum, notes and orders pertaining to the Suppressive Person Declare Gerry Armstrong of February 18, 1982, Flag Conditions Order 6664R.

RESPONSE TO REQUEST NO. 7:

Objection. This request is over broad and to a large extent requests material which seeks to invade the internal workings of a religious organization which is protected by the First Amendment and seeks information protected by the attorney-client privilege and attorney work-product doctrine.

CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 7: The California Church stands on its objection as set forth above.

ARGUMENT:

Armstrong incorporates by reference the argument C0 et forth with respect to Request No. 6, supra.

REQUEST NO. 13

Any communication or correspondence and/or other documentation between representatives of Author Services, Inc., and representatives of the Church of Scientology of California regarding Gerald Armstrong and/or the Armstrong litigation.

RESPONSE TO REQUEST NO. 13:

Objection. This request is vague, ambiguous, over broad, burdensome and seeks information not calculated to

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lead to the discovery of admissible evidence. In addition, the request violates the attorney work-product rule and the attorney-client privilege.

CROSS-DEFENDANT'S CURRENT POSITION WITH RESPECT TO REQUEST NO. 13:

The California Church stands on it objection as set forth above.

ARGUMENT:

Author Services, Inc., is a for-profit corporation organized and run by members of the Church of Scientology. One of their two clients is L. Ron Hubbard, for whom they conduct business affairs.

One of the acts complained of by Armstrong in his Second Cause of Action for Intentional Infliction of Emotional Distress is the taking of certain photographs from him, which photographs had been entrusted to his care. Involved in this photograph incident were members of Author Services, Inc. These individual members testified at the trial of the underlying action and admitted involvement. Armstrong is thus requesting documentation between Author Services, Inc., and Cross-Defendant Church of Scientology of California regarding himself and/or this litigation. This documentation is relevant to his cause of action for intentional infliction of emotional distress, and may be relevant to other causes of action contained in his Cross-Complaint.

Based upon all of the foregoing arguments, as well as the attached Memorandum of Points and Authorities, the

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Declaration of Gerald Armstrong and supporting exhibits, Armstrong respectfully requests that the Court grant the within Motion to Compel Production of Documents, and that the Court further order payment of reasonable attorney's fees in the sum of $500.00.

In connection with the attorney's fees, Declarant has expended three and one-half hours in the preparation of the within Motion and two and one-half hours in connection with the appearance thereon.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 28th day of September, 1984, at Woodland Hills, California.

[signed]

JULIA DRAGOJEVIC

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MEMORANDUM OF POINTS AND AUTHORITIES

I

THE CLAIM OF PRIEST-PENITENT PRIVILEGE AS TO ARMSTRONG'S PRE-CLEAR/AUDITING FILES IS BASELESS

As described in the Declaration of Gerald Armstrong filed herewith (see p. 1, paragraph 3), pre-clear or auditing files contain detailed information which the pre-clear provides to the auditor during a Scientology process called "auditing." The auditing process is allegedly designed to rid the pre-clear of 'engrams.' Engrams are generally troubling experiences, feelings or emotions which prevent the mind and body from functioning at a high level of emotional and physical well-being. Thus, the pre-clear relates all of his innermost thoughts and relates emotionally charged incidents to the auditor, while clutching two tin cans which are attached to a Scientology "E-Meter,' a type of crude lie-detector. When the pre-clear relates a thought or event which produces a 'needle read" on the E-Meter (indicating an engram), that thought or event is scrutinized by the auditor in great detail. These auditing sessions can last many hours and a great deal of information is given by the pre-clear to the auditor. This information is kept in "auditing or PC folders."

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when Armstrong joined the Scientology organization and became a pre-clear, he was told that auditing reports and statements made during auditing were absolutely confidential. (See Armstrong Declaration; pp. l-2, paragraph 4). He was not aware at that time of a Guardian Program Order, "GO 121669" (a copy of which is attached hereto as Exhibit "H"), written by intervenor, Mary Sue Hubbard, and dated December 16, l969. During the trial of the underlying complaints, Mary Sue Hubbard admitted to having written this Guardian Program Order. On page 2 of the Order under "Operating Targets" subheading "1," it states as follows:

"1. To make full use of all files on the organization to effect your major target. These include personnel files, Ethics files, Dead files, Central files, training files, processing files and requests for refunds.

2. To assemble full data by investigation of each person located, for possible use in case of attack or for use in preventing any attack and to keep files of such." (See Exhibit "H") (emphasis added).

Guardian Order 121669 was admitted into evidence during trial of the underlying action as Exhibit AAA, and

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there was lengthy testimony regarding its contents as it related to the use of "confidential" information from the auditing or pre-clear folders of individuals for use in attacks against them. Documents evidencing the use of auditing information were also introduced into evidence but were specifically sealed by the Court because of their sensitive nature, i.e., as containing information regarding person's sexual habits, etc.

As emphasized in the quote from Guardian Order 121669, information to attack individuals considered "enemies" could be taken from "processing files." Although during the trial Mary Sue Hubbard denied that "processing files" were actually auditing or pre-clear folders, her testimony was greatly impeached by the testimony of other witnesses and by the definition of the word "processing" as contained in the Dianetics and Scientology Technical Dictionary which states: "PROCESSING, 1. called 'auditing’ by which the auditor (practitioner) 'listens and commands.'" (A copy of pp. 317-318 of the Dianetics and Scientology Technical Dictionary, 1975, is attached hereto as Exhibit "I").

It became abundantly clear during the trial that Guardian Order 121669 authorized the use of auditing

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information for intelligence purposes by the Guardians Office. Other witnesses testified as to participating in the "culling" or extracting of "damaging" information from such files (see Armstrong Declaration, p. 3-5, paragraphs 6-8), even when an individual simply left the Scientology organization.

It would take extensive time and paper to document all of the trial testimony herein relevant to this subject. The impact of the testimony and evidence, however, is succinctly and clearly stated in Judge Breckenridge's Memorandum of Intended Decision which warrants repetition here:

"Each (person) has broken with the movement for a variety of reasons, but at the same time, each is, still bound by the knowledge that the Church has in its possession his or her most inner thoughts and confessions, all recorded in 'pre-clear (P.C.) folders' or other security files of the organization, and that the Church or its minions is fully capable of intimidation or other physical or psychological abuse if it suits their ends. The record is replete with evidence of such abuse."

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And:

The practice of culling supposedly confidential 'P.C. folders or files' to obtain information for purposes of intimidation and/or harassment is repugnant and outrageous. The Guardian's Office, which plaintiff headed, was no respecter of anyone's civil rights, particularly that of privacy."

There was sufficient evidence presented at trial to convince Judge Breckenridge that auditing or pre-clear folders were not kept in confidence. To the contrary, by written policy, the information contained therein can be used at will for intimidation and harassment purposes.

Pursuant to Evidence Code Section 1032, a 'penitential communication means a communication made in confidence.' It is clear that based upon the evidence presented during the trial of the underlying action, and Judge Breckenridge's findings thereon, the information in auditing or pre-clear files was never intended to be kept in confidence. To state otherwise is a fraud. This is exactly the fraud of which Armstrong complains in his Cross-Complaint. The mere existence of Guardian Office 121669 vitiates any claim of "confidence" the California Church attempts to make. Based upon the evidence adduced at trial, the California

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Church and Mary Sue Hubbard (at the time she was Controller of the Guardians Office) allowed individual members to believe that their auditing sessions and folders would be kept in strictest confidence, while they secretly followed the guidelines set forth in Guardian Order 121669. Such an absue of the "priest-penitent' privilege cannot and should not be countenanced by this Court.

Where an element of the priest-penitent privilege is missing, the privilege will not apply. People v. Thompson, 133 Cal. App. 3d 419, 184 Cal. Rptr. 72 (1982).

In Thompson, Defendant, a confessed murderer, attempted to prevent use of his written confession at trial on the grounds of the clergyman-penitent privilege.

Defendant had confessed the murder three years after the fact to a counselor employed by Defendant's employer, Miracle Water Company. Virtually all the employees of the Miracle Water Company were members of The Church of Scientology. This included the "counselor" who in Scientology terms was considered an 'operating thetan' and "ethics officer," but who had not been trained as an auditor or "minister." Further, the Court found that no assurances of confidentiality had been made by the "counselor" at the time he told the Defendant to write a confession and turn himself in. The Court stated as follows in holding that no clergyman-penitent privilege existed:

"The clergyman-penitent privilege is rooted in the imperative need for

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confidence and trust between the realtor and the recipient. 'The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.' (Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 913, 63 L. Ed. 2d 186)." Id., at 427.

The Court then held that the elements of "lack of required relationship" and "lack of expectation of confidentiality" were missing. Id., at 427.

Although the facts of Thompson are different from the present case, it is clear that without the necessary elements present, the privilege will not attach. With the existence of Guardian Order 121669, the privilege could never attach since there is no intention on the part of the Scientology organization to honor the representation of confidentiality.

Further, there is no proof that the individuals who audited Armstrong were "ministers" of the Church of Scientology. Evidence Code, Section 1032, requires that the "priest" or "clergyman" be just that. Although the category

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is broad, the Thompson case holds that with respect to the Church of Scientology the "priest" should be a "minister" or trained "auditor."

As with all privileges, under Evidence Code Section 405, the burden is on the party claiming the privilege to establish that all elements of the privilege are present. In this case, two of those elements are missing--confidentiality and required relationship of clergyman-penitent. Thus, the objection of the California Church to Armstrong's request for his own auditing and pre-clear files is baseless.

A.OTHER COURTS HAVE ORDERED THE PRODUCTION OF AUDITING/PRE-CLEAR FILES

In the case of Margery Wakefield v. The Church of Scientology of California, et al., Case No. 82-1313-T-GC, filed in the United States District Court, Middle District of Florida, Tampa Division, the Court ordered production of the Plaintiff’s auditing files (see Order of Court attached hereto as Exhibit "J"). The Wakefield case contains the same type of allegations of fraud as the Armstrong Cross-Complaint.

Further, in the case of Marks v. Rudie, 59 Or. App. 409, 650, P.2d 191 (1982), cert. denied 294 Or. 460, 658 P.2d 1162 (1983), the Oregon Court of Appeals affirmed, without opinion, the holding of the trial court allowing the alleged deprogrammer of a member of the Church of Scientogy, to

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review the auditing files of the member. (A copy of the case is attached hereto as Exhibit "K"; a copy of an article from the St. Petersburg Times regarding the case is attached hereto as Exhibit "K-1").

Thus, precedent has been established by other courts for production of auditing/pre-clear folders over the priest-penitent objection.

CONCLUSION

Based upon all of the foregoing, it is respectfully submitted that the Court grant the within Motion and order production of documents requested, as well as sanctions in the amount of $500.00.

DATED: March 22, 1985

Respectfully submitted,

CONTOS & BUNCH

By: [signed]

Julia Dragojevic

Attorneys for Defendant and Cross-Complainant GERALD ARMSTRONG

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EXHIBITS

EXHIBIT A: Memorandum of Intended Decision (06-20-1984)

EXHIBIT B: Third Amended Cross-Complaint For Damages (07-01-1983)

EXHIBIT C: Suppressive Person Declare Gerry Armstrong (02-18-1982)

EXHIBIT D: Request For Production Of Documents Propounded To Cross-Defendant Church Of Scientology of California By Cross-Complainant Gerald Armstrong (08-02-1984)

EXHIBIT E: Responses Of Cross-Defendant Church Of Scientology of California To Request For Production Of Documents Propounded By Cross-Complainant Gerald Armstrong (08-23-1984)

EXHIBIT F: Letter from Julia Dragojevic Esq. to John G. Peterson, Esq. (09-17-1984)

EXHIBIT G: Letter from Julia Dragojevic Esq. to Michael Maguson, Esq. (09-21-1984)

EXHIBIT H: Guardian Order 121669 PROGRAMME: Intelligence: Internal Security (12-16-1969)

EXHIBIT I: Dianetics and Scientology Technical Dictionary: Definition: "Processing"

EXHIBIT J: Margery Wakefield v. Church of Scientology of California: Order (07-25-1983)

EXHIBIT K: Appellate Affirmation: Marks v. Rudie, 59 Or. App. 409, 650, P.2d 191 (1982)

Declaration of Gerald Armstrong (09-24-1984)