Civil Action No. 95-K-2143
RELIGIOUS TECHNOLOGY CENTER a California non-profit corporation;
Plaintiffs v.
F.A.C.T.NET, INC., a Colorado corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual.
Defendants.
1. I am an attorney at law licensed to practice before all the courts of the State of California and New York. In addition, I am admitted to practice before the United States District Courts for the Southern District of New York and the Central District of California. I am also admitted to practice before the United States Ninth Circuit Court of Appeals and the United States Supreme Court. I am a partner in the Los Angeles law firm of Musick, Peeler & Garrett LLP ("Musick, Peeler") which has been retained by F.A.C.T.Net, Inc. ("FACTNet") to be its attorney of record herein. In that regard, I have admitted pro hac vice herein. I have personal knowledge of the matters set forth herein and, if called upon to do so, I could and would competently testify thereto under oath.
2. This declaration is submitted in support of both (a) Defendants' F.R. Civ.P. Rule 56(f) Motion for "a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had" concerning the various documents at issue in connection with Bridge Publication, Inc.'s pending motion for partial summary judgment, and (b) Defendants' Motion to Amend the Scheduling Order and to Compel the Deposition of David Miscavige.
3. Three weeks after being admitted pro hac vice herein, I wrote to Plaintiff's counsel Helena K. Kobrin, Esq. requesting the depositions of certain persons. These persons included David Miscavige and Norman Starkey. A copy of that letter is attached hereto as Exhibit 12. Attached hereto as Exhibit 13 is a copy of Plaintiffs' counsel Jeffrey A. Chase's December 23, 1996 response to that letter. Plaintiffs totally blocked this discovery claiming that "not a single one of the proposed deponents can provide testimony that is or is likely to lead to the discovery of admissible evidence related to the pending summary judgment motion."
4. Contrary to Plaintiffs' justification for blocking these depositions, the discovery sought is extremely relevant to the pending motion for summary judgment. For example, the declaration of Robert Vaughn Young filed concurrently herewith states that David Miscavige was in charge of a 1983 Scientology project to register many of the works over which BPI now claims copyrights. Allegedly, at the time, David Miscavige was told that many of the works which he wished to register with the Copyright Office were already in the public domain. Allegedly, his response was to proceed with the copyright registrations of public domain documents and that Scientology "would fight that battle later." This is now that battle. Further reasons why David Miscavige's deposition is extremely relevant are set forth below.
5. Defendants also seek the deposition of the following deponents in relation to, among other things, the pending summary judgment motion:
(a) David Miscavige: David Miscavige is the ecclesiastical head of the group of corporations comprising the Scientology organization. He is the senior-most officer in Scientology's Sea Organization; he is L. Ron Hubbard's successor, the managing agent of Scientology (as was Hubbard), and he is the chairman of the board of directors of Religious Technology Center, Inc. which is one of the plaintiffs herein.He has previously testified in litigation which led to the Church of Scientology in Canada being the first church in Canada to be convicted of criminal conduct. He also provided deposition testimony in litigation brought by former Scientologist Bent Corydon against the Scientology organization. He was also ordered, as the Managing Agent of Scientology, to give testimony in the case of Church of Scientology International v. Fishman and Geertz. However, Scientology dismissed that litigation rather than subject David Miscavige to deposition by FACTNet's attorney herein.
Moreover, the declaration of Vaughn Young filed concurrently herewith demonstrates that David Miscavige is one of the most relevant witnesses in connection with BPI's pending motion for summary judgment. In his declaration, Mr. Young testified that David Miscavige was in charge of the project to register certain of the claimed copyrights in 1983. When advised that many of the documents which Scientology wished to copyright were already in the public domain, David Miscavige allegedly responded that the copyright applications were to be filed and that Scientology would "fight that battle later."
Furthermore, David Miscavige was the only mode of communication with LRH during the five years preceding LRH's death when LRH was in hiding, seclusion and a fugitive from justice. During this time, LRH signed many blank sheets of paper which the Scientology organization used for various purposes. David Miscavige notarized many of the assignments at issue herein. There is an issue of fact as to whether or not David Miscavige notarized those documents in the presence of L. Ron Hubbard, whether or not L. Ron Hubbard signed the assignments or merely blank pieces of papers, and whether David Miscavige otherwise performed his notary duties in accordance with law.
Furthermore, after being crippled by a stroke, and whilst under the influence of the psychiatric and hallucinatory drug Vistiril, LRH purportedly changed his Will one day before death. David Miscavige's role in the alleged withdrawal of medical care from LRH, the changing of LRH's Will, his cremation within 24 hours of death and without autopsy, and the subsequent disappearance of certain witnesses such as Pat and Annie Broeker, is directly relevant to the issues presented by the pending summary judgment motion.
Furthermore, David Miscavige's role in negotiating seven-figure settlements with members of the Hubbard family after LRH's death, and arranging for those family members to subsequently assign their various rights to the documents at issue herein, is directly relevant to the issues presented by the pending summary judgment motion. Indeed, testimony has been filed in other litigation that shortly before LRH's death, David Miscavige allegedly said words to the effect of "IRS indictments are about to come down. The only thing that will save us now is if the old man dies."
(b) Norman F. Starkey: Norman Starkey's deposition is relevant for a number of reasons. First, he was the executor of the Hubbard estate which is alleged to have succeeded to Hubbard's claimed copyrights prior to their ultimate transfer to the Church of Spiritual Technology. Thus, he is expected to have relevant and admissible evidence in connection with that very relevant and disputed factual area. Second, various copyright registration certificates indicate that he was one of the people (along with David Miscavige, Mary Sue Hubbard and Patricia Brice), who were personally involved in various of the copyright registrations that are directly in issue in connection with the pending motion for summary judgment.
(c) Patricia Brice: Patricia Brice worked for Author Services, Inc., under the supervision of David Miscavige and apparently was LRH's personal secretary for many years. Accordingly, the copyright registration documents themselves demonstrate that Patricia Brice was personally involved in the copyright registration process and is therefore a relevant witness in connection with the issues raised by the pending motion for summary judgment.
(d) Pat Broeker: Pat Broeker, along with his wife Annie Broeker, were LRH's constant companions during the final years of his life when LRH was in hiding, seclusion, and a fugitive from the courts of justice. In those circumstances, Pat Broeker is likely to be able to provide admissible evidence in connection with the circumstances surrounding the purported assignments, notarizations, last minute changes to LRH's Will and LRH's death itself. Thus, Pat Broeker will likely provide admissible evidence in connection with critical issues directly relevant to the pending motion for summary judgment.
(e) Attached hereto as Exhibit 89 is a declaration of Vicki Aznaran executed October 27, 1988. The declaration provides further evidence of the relevance of the requested depositions of David Miscavige, Norman Starkey and Patrick Broeker, and the relevance of their testimony to Defendants' claims in this litigation. Furthermore, on page 16:14-22, Vicki Aznaran provides evidence relevant to Defendants' defenses and affirmative herein.
(f) Mary Sue Hubbard: Mary Sue Hubbard was once the second highest ranking member of the Scientology organization. She received a substantial prison sentence from the federal courts for her part in Scientology's infiltration of over 11 United States government departments and the theft of millions of pages of government documents as part of Scientology's "Operation Snow White." Operation Snow White, which is still being carried out today, was the largest ever known infiltration of the United States government. Mary Sue Hubbard's testimony will be directly relevant to the issues of authorship, assignment and transfer of the alleged copyrights in connection with the various documents at issue herein. Furthermore, her testimony will be relevant to certain of the defenses and affirmative defenses.
(g) Robert F. Lewis, Esq. and Janet Lubert, Esq.: Evidence will demonstrate that the above persons were involved in a massive and egregious conspiracy to "deep six" many of the documents relevant to the defenses herein, to remove those documents from court records and the hands of opposing attorneys, to render those documents unavailable to Defendants herein and to restrict Defendants' choice of counsel herein. Among other things, this evidence goes to defenses such as unclean hands, abuse of process, etc. As part of this criminal, tortious and unethical conspiracy, Plaintiffs entered into a secret settlement agreement with Robert F. Lewis. Esq., Lewis, D'Amato, Brisbois & Bisgaard, Landmark Insurance, and AI Management. Not only did this secret settlement agreement, and related oral agreements, unethically restrict the scope of Lewis D'Amato's legal representation to the detriment of Defendants herein; but it also released Lewis, D'Amato, Brisbois & Bisgaard, its employees and agents in connection with any liability relating to most of the documents at issue herein, and most of the alleged conduct herein; which had been provided by the Lewis D'Amato law firm to the Defendants herein in their capacity as expert consultants and expert witnesses in litigation against the Scientology organization that the Lewis D'Amato law firm was handling for Dr. Uwe Geertz with funds provided by Landmark Insurance and AI Management. Thus, this discovery is critical to a number of the defenses and affirmative defenses herein. Indeed, if the release provisions extend, as Defendants believe and allege, to Defendants as a matter of law, then they have an absolute defense to most of the conduct alleged of them herein and a strong case in connection with their abuse of process and other counterclaims.
6. Attached hereto as Exhibit 90 is a true and correct copy of BPI's Response to F.A.C.T.Net's First Request for Production of Documents. In that Response, BPI refused F.A.C.T.Net's request for production of originals of all documents related to the transfer of any copyrights of the published works, stating that "copies" had already been produced and asserting that the demand was irrelevant.
7. (list of 102 exhibits edited out for brevity, soon, see FactNet web site for the entirety of this and numerous others filings related to BPI vs FactNet: http://www.factnet.org/Scientology/dianetics.html )
8. The three allegedly infringing "media CD's" were prepared for litigation purposes by Matthew D. Berger, then of Lewis, D'Amato, Brisbois & Bisgaard, and a copy was sent by then Lewis D'Amato paralegal to its expert consultants FACTNet, Inc. and Lawrence D. Wollersheim in 1993. In early 1995, I discovered that Lewis, D'Amato's copies of the three "media CD's" had been stolen by persons unknown.
FURTHER DECLARANT SAYETH NAUGHT
I declare under penalty of perjury under the laws of the United States of America, the State of California and the State of Colorado that the foregoing is true and correct.
Executed in Los Angeles, California this _____ day of August, 1997.
______________________________
GRAHAM E. BERRY