Plaintiff's Motion to Strike Defendant's Witnesses

18 December 2002


                                                                          1

            1

            2        IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA

            3                      CASE NO. 00-5682-CI-11

            4
                DELL LIEBREICH, as Personal
            5   Representative of the ESTATE OF
                LISA McPHERSON,
            6

            7             Plaintiff,

            8   vs.

            9   CHURCH OF SCIENTOLOGY FLAG
                SERVICE ORGANIZATION, JANIS
           10   JOHNSON, ALAIN KARTUZINSKI
                and DAVID HOUGHTON, D.D.S.,
           11
                          Defendants.
           12
                _______________________________________/
           13

           14   DEPOSITION OF:      Plaintiff's Motion to Strike
                                    Defendant's Witnesses;
           15
                                    Church of Scientology Flag Service
           16                       Organization's Motion to Disqualify
                                    Plaintiff's Counsel on the Basis of the
           17                       RentClub Doctrine.

           18   DATE:               December 18, 2002, 9:31 a.m.

           19   PLACE:              Coutroom B, Judicial Building
                                    St. Petersburg, Florida.
           20
                BEFORE:             Hon. Susan F. Schaeffer,
           21                       Circuit Judge.

           22   REPORTED BY:        Donna M. Kanabay RMR, CRR,
                                    Notary Public,
           23                       State of Florida at large.

           24

           25


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            1   APPEARANCES:

            2   MR. KENNAN G. DANDAR
                DANDAR & DANDAR
            3   1715 North Westshore Boulevard
                Suite 750
            4   Tampa, FL 33607
                Attorney for Plaintiff.
            5
                MR. LUKE CHARLES LIROT
            6   LUKE CHARLES LIROT, PA
                112 N East Street, Street, Suite B
            7   Tampa, FL 33602-4108
                Attorney for Plaintiff.
            8

            9   MR. LEE FUGATE
                ZUCKERMAN, SPAEDER
           10   101 E. Kennedy Blvd, Suite 1200
                Tampa, FL 33602-5147
           11   Attorneys for Church of Scientology Flag Service
                Organization.
           12
                MICHAEL LEE HERTZBERG
           13   740 Broadway, Fifth Floor
                New York, New York  10003
           14   Attorney for Church of Scientology Flag Service
                Organization.
           15
                MR. ERIC M. LIEBERMAN
           16   RABINOWITZ, BOUDIN, STANDARD
                740 Broadway at Astor Place
           17   New York, NY 10003-9518
                Attorney for Church of Scientology Flag Service
           18   Organization.

           19   MR. WILLIAM T. DRESCHER
                DRESCHER & DRESCHER
           20   23679 Calabasas Rd.
                Calabasas, California 91302-1502
           21   Attorney for Church of Scientology Flag Service
                Organization.
           22

           23

           24

           25


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            1             THE COURT:  Thank you all for coming today.  We

            2        had scheduled this, I believe, for next -- was it

            3        Tuesday?

            4             MR. FUGATE:  Next Monday.

            5             THE COURT:  Next Monday.  And that is the week

            6        that -- since Christmas falls on Wednesday, a lot of

            7        folks are planning on taking off Monday and Tuesday,

            8        and this should free those days up for everybody.

            9             What we had agreed to do next Monday were two

           10        motions.  One was what I'm going to refer to as the

           11        RentClub motion, and the other was a request --

           12        Plaintiff's motion to strike defendant's witnesses.

           13        So we're going to try to put those two things in

           14        this morning.  And then as I said, I do not intend

           15        to have that hearing next Monday, okay?

           16             I can take those in any order you want.

           17             Mr. Lirot.  Hello.

           18             MR. LIROT:  Judge, if I may, yesterday I got an

           19        emergency motion.  There's another matter pending in

           20        the case of Robert Minton versus Peter Alexander

           21        related to the -- to the film The Profit that I know

           22        that this court's familiar with.  Mr. McGowan set a

           23        10:00 emergency motion in front of Judge Penick, and

           24        Judge Penick's judicial assistant asked if I could

           25        take a break at 10:00.


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            1             Now, that puts me in an awkward position

            2        because I wanted to work with Mr. Dandar on

            3        certainly the RentClub motion.  But --

            4             THE COURT:  For how long?

            5             MR. LIROT:  I wouldn't imagine more than 15

            6        minutes.

            7             THE COURT:  Sure.  I'll take a break.

            8             MR. LIROT:  Thank you very much, your Honor.  I

            9        apologize for the inconvenience.

           10             MR. FUGATE:  Well, Judge, if that's the case,

           11        then I would suggest we do the RentClub first and it

           12        might be finished by then.  I understood you were

           13        going to do 30 minutes a side.

           14             THE COURT:  To tell you the truth, it's 9:30,

           15        so it's not going to be finished.  Let's do the

           16        other one, which --

           17             MR. FUGATE:  Okay.

           18             THE COURT:  -- I think we can finish by 10.

           19             MR. FUGATE:  Well, Judge, I have two things, if

           20        I could.  I have a motion pro hac vice for

           21        Mr. Drescher, since he is -- had done some of the

           22        research on the RentClub and Mr. Rosen was not able

           23        to be here today, and he's been working with

           24        Mr. Rosen.  And I have that original for the court.

           25             THE COURT:  Okay.


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            1             MR. FUGATE:  And I've given a copy to --

            2             THE COURT:  This is a new name.  Who is

            3        Mr. Drescher?

            4             MR. DRESCHER:  I am, your Honor.

            5             THE COURT:  I gathered you were when you stood

            6        up.

            7             MR. DRESCHER:  I'm a lawyer from California,

            8        your Honor.  I've represented Flag and various

            9        churches for a number of years.  And Mr. Rosen's

           10        asked me to help out, get him up to speed.

           11             THE COURT:  All right.

           12             MR. DRESCHER:  He has been taking some medical

           13        tests, so I'm sort of pinch-hitting for him on these

           14        issues.

           15             MR. DANDAR:  Judge, the only -- the matter that

           16        I would bring to the court's attention is that when

           17        Mr. Drescher came Tampa to represent the Church of

           18        Scientology International in this case, he demanded

           19        from Judge Moody the return of Lisa McPherson's PC

           20        folders, and he also told Judge Moody that if he

           21        ordered -- if Judge Moody made an order for the

           22        production of the PC folders, that he would not obey

           23        the court's order on behalf of the Church of

           24        Scientology International.

           25             THE COURT:  But he did, didn't he?


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            1             MR. DANDAR:  There was no further orders coming

            2        at that time.  They were demanding the PC folders

            3        that I had, the copies, back.

            4             THE COURT:  Oh.

            5             MR. DRESCHER:  If I may, your Honor?

            6             Johnson -- Mr. Paul Johnson actually made the

            7        argument.  My -- as you can see from my application,

            8        because the motion I had sought permission to argue

            9        was denied by Judge Moody as untimely, he considered

           10        my application for pro hac vice admission to be moot

           11        and I got to sit through the argument and not utter

           12        a word.

           13             As your Honor points out, the entire matter was

           14        handled without any curfluffle whatsoever.  And so

           15        I'll stand on what Judge Moody said, which was, if

           16        you want to argue some other motion some other time,

           17        glad to hear it, come on back.  But that was the sum

           18        and substance of it, including my silence during

           19        local counsel's argument to that issue.

           20             MR. DANDAR:  Mr. Drescher is also the attorney

           21        who wrote a letter to my reluctant witness, expert

           22        witness, Bill Franks, after I subpoenaed him.  To

           23        Mr. Franks, it was a threatening letter that he was

           24        going to get sued if he honored the subpoena to

           25        appear in court.


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            1             MR. DRESCHER:  Your Honor, it was neither of

            2        those.  And it was before the subpoena.  In fact,

            3        I'm the one, according to Mr. Franks, who alerted

            4        him to the fact that Mr. Dandar had placed him on

            5        the witness list.  My sum and substance of my

            6        communication with Mr. Franks was that he should

            7        contact Mr. Fugate, since he was on the witness list

            8        and wasn't aware of it when I first contacted him.

            9             THE COURT:  I think the thing that concerns

           10        me -- I'm going to grant the motion, but I think the

           11        thing that concerns me is we've got so many lawyers

           12        in this case pro hac vice -- I do not intend to have

           13        this case handled by nothing but outside-Florida

           14        lawyers.

           15             I mean, in other words, I presume we're going

           16        to have somebody locally representing the church.

           17             And are you it?  Are you the only one?

           18             MR. FUGATE:  I am, your Honor.  But I can -- I

           19        can address two things.

           20             One thing I'd like to tell the court, since I

           21        signed the motion and sponsored Mr. Drescher, I've

           22        worked with him and I found him to be an honest,

           23        ethical lawyer, and I wouldn't sponsor him

           24        otherwise.  Number two, in response to that

           25        observation, we're doing a lot on the fly, and in


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            1        order to keep the process going, we've brought in

            2        Mr. Drescher, we've brought in Ms. Yingling for the

            3        mediation purposes, we've brought in Mr. Rosen.  And

            4        everybody's separated up so we can stay on course.

            5             And for the trial you'll have a limited number

            6        of lawyers, and I will be present as Florida

            7        counsel.

            8             And I think you're going to have -- we haven't

            9        got there yet.  I think that's going to be in our

           10        next pretrial.  We're going to try and determine how

           11        we can do this in an orderly fashion without the

           12        cast that we've had.  But we just -- you know, right

           13        now we're responding to everything.

           14             And I'm asking today, because there's some

           15        issues that he has done, Mr. Rosen couldn't be here.

           16        And you know, I appreciate you granting it.

           17             THE COURT:  All right.

           18             MR. DRESCHER:  Thank you, your Honor.

           19             THE COURT:  That will be granted, I suppose, as

           20        all pro hac vice motions are, subject to change if

           21        there's a reason for it.

           22             MR. DRESCHER:  I understand.  Thank you, your

           23        Honor.

           24             MR. FUGATE:  I have an order which I'll hand

           25        up, Judge.  And at the same time I've handed to


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            1        Mr. Dandar a proposed order on the autopsy photo

            2        negatives that he's had a chance to review.  I don't

            3        know if he has any objection to it.  If he

            4        doesn't --

            5             This is the motion where, because of the --

            6             THE COURT:  I remember you all were in

            7        agreement and some order was going to be drawn up.

            8             MR. DANDAR:  The order -- the order is fine.

            9             THE COURT:  Fine.  Just give me the order.

           10             MR. FUGATE:  I'm going to give it to you to

           11        look at because it may not comport with your --

           12             And this is the copies of the pro hac order.

           13             THE COURT:  Okay.  Looks fine to me.  I think

           14        it's what everybody agreed.

           15             And Mr. Dandar, you're okay with this?

           16             MR. DANDAR:  Yes.

           17             THE COURT:  Today's date is?

           18             MR. FUGATE:  The 18th.

           19             THE COURT:  The 18th.

           20             Mr. Fugate, I'll take the original.  If -- when

           21        we let Mr. Lirot go downstairs, if you'll remind me,

           22        I'll take it, have Mrs. Rudd stamp these copies and

           23        I'll pass them out.

           24             MR. FUGATE:  Thank you.

           25             THE COURT:  On the granting of pro hac vice, as


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            1        I said, and I really do want to make this clear,

            2        I've now had Mr. Moxon in pro hac vice, I've had

            3        Mr. Rosen --

            4             Who, by the way, as I started to look over

            5        things, it dawned on me that Mr. Pope made an

            6        argument in front of me, and one of the things on

            7        consolidation was that there was separate counsel,

            8        now all of a sudden there aren't separate counsel,

            9        everybody's all mixed in together, so -- but

           10        nonetheless we have Mr. Rosen pro hac vice; now we

           11        have Mr. Drescher pro hac vice.

           12             There may come a time where -- this is, I

           13        believe, at my -- at my discretion, as long as I

           14        don't abuse it -- where I may say you just got too

           15        many lawyers, I want to pare it back.  And if you

           16        don't agree to it, I may just take one of these pro

           17        hac vices and say no more.  But for now I'm

           18        perfectly happy to have Mr. Drescher here and/or

           19        anybody else who wants to --

           20             MR. FUGATE:  Thank you --

           21             THE COURT:  -- come in and represent the

           22        church.

           23             MR. FUGATE:  I think then the motion would be

           24        Mr. Dandar's motion to strike all of defendant's

           25        witnesses.


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            1             THE COURT:  Did you tell me it was the 18th?

            2        Is that what somebody --

            3             MR. FUGATE:  Yes, your Honor.  It's the 18th.

            4             THE COURT:  All right.  I've signed both the

            5        originals, I have the copies that you've provided.

            6        I'll have them stamped during the break and return

            7        them.  That's assuming somebody reminds me in case I

            8        forget.

            9             MR. FUGATE:  I will do that.

           10             THE COURT:  Okay.  Mr. Dandar, I noticed that

           11        the original motion you have filed on the pro hac

           12        vice, or is this it, Mr. Fugate?

           13             MR. FUGATE:  That's the original.  I can --

           14             THE COURT:  Better take the motion back 'cause

           15        I --

           16             MR. FUGATE:  And file it with the clerk?

           17             THE COURT:  Yes.

           18             MR. FUGATE:  All right.  We'll do that.

           19             THE COURT:  And how about the original order?

           20             I've got the original order.  That's fine.

           21        I'll have Sue file that.

           22             I noticed that there was a -- some assertions

           23        made in your motion to strike, and then there were

           24        some responses that said not so, and I wondered if

           25        that narrowed the issues.


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            1             MR. DANDAR:  Judge, I don't expect you to

            2        strike all their witnesses, because they did file a

            3        prior witness list when this was set for June of

            4        2002.  However, what I'm really concerned about are

            5        these -- all these new expert witnesses that they

            6        filed late.

            7             THE COURT:  Okay.  Well, look, that's not going

            8        to get it.

            9             Here we go.  They say that this Jane

           10        Kerstetter -- let's see -- Jane Kerstetter, your

           11        assertion that she was not identified before

           12        November 12th is incorrect.  She was identified on

           13        October 28th, Exhibit C.  And I turn to Exhibit C

           14        and sure enough, there it is, dated October 28th,

           15        stamped in, civil court records, October 28th.  And

           16        it's well before November the 12th.  So why do I

           17        have to deal with that?

           18             MR. DANDAR:  You don't.  That's fine.  I

           19        received it --

           20             THE COURT:  Well, then --

           21             MR. DANDAR:  I received it on November 12th.  I

           22        can't imagine why.

           23             THE COURT:  All right.  Well --

           24             MR. DANDAR:  That's what --

           25             THE COURT:  -- in any event, that's not an


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            1        issue.  So -- so we're going to take Jane Kerstetter

            2        and strike her off the list --

            3             MR. DANDAR:  But is she redundant of the other

            4        witnesses?  You said that we're limited on the

            5        expert witnesses to one per specialty.

            6             THE COURT:  That's true.

            7             MR. DANDAR:  And so I'd like to hear how she's

            8        different from all the other ones.

            9             THE COURT:  Well, the truth of the matter is,

           10        is both sides appear to have more than one expert on

           11        some of these more important things.  At some point

           12        in time, we may narrow this and I may say to both

           13        sides, "Who are you going to use for cause of death

           14        and who are you going to use for" --

           15             I saw something yesterday that there was going

           16        to be a dehydration expert.  I don't know about

           17        that.  I mean, to me, you've got your medical

           18        examiners in cause of death and you've got your

           19        vitreous people who -- I'm sorry -- who deal with

           20        dehydration.  I don't know that we need a

           21        dehydration expert.  At some point I'm going to sit

           22        down and say, "Tell me who you think you're going to

           23        call."

           24             I also saw in this -- in this motion, this

           25        opposition to plaintiff's motion, "In accordance


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            1        with the court's earlier comment, defendant's

            2        witnesses Dr. Baden and Wecht will also testify to

            3        discrete issues and will not duplicate each other's

            4        testimony."

            5             The court never made such a comment.  As a

            6        matter of fact, quite to the contrary.  I made it

            7        clear that no matter what his request --

            8             You may have filed this prior to the court's

            9        comment --

           10             MR. FUGATE:  You --

           11             THE COURT:  -- assuming what the court was

           12        going to rule or say.

           13             MR. FUGATE:  Well, actually, Judge, since I

           14        signed off on it, when we had -- it was a hearing

           15        within a hearing.  We just started talking about

           16        experts, I think, and either -- frankly it was

           17        either the vitreous hearings or the beginning of the

           18        omnibus hearings.  And you said something to the

           19        effect that you can have -- and you named out the

           20        number of people we could have, and if there were

           21        people that were going to testify, I believe

           22        something to the effect to particular discrete

           23        issues, you know, that was fine, although they may

           24        not be otherwise admissible.  You were going to

           25        reserve on that.


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            1             But I was also present in the case management

            2        conference last week, and you were pretty clear --

            3             THE COURT:  Okay.

            4             MR. FUGATE:  -- in your comments there.

            5             And I think really the upshot of this whole

            6        thing is that we are identifying witnesses; we have

            7        an obligation to do that; the order says, as they

            8        become known, we're supposed to provide them.

            9        They're notified to Mr. Dandar so he has an

           10        opportunity to depose them.

           11             The fact of the matter is, a lot of witnesses

           12        on both sides of the witness lists may never see the

           13        stand, for a variety of reasons, but they're

           14        notified so that he has an opportunity to depose

           15        them.  And in fact, we're deposing some of these --

           16             THE COURT:  It seems like you're going on and

           17        on.  I just want to point out --

           18             MR. FUGATE:  Yeah.

           19             THE COURT:  -- that what you say in here that

           20        the court said may have been true at some other

           21        point in time.  I clarified it at the case

           22        management pretrial hearing conference.

           23             So Dr. Kerstetter is -- I don't know what she

           24        is, but apparently at some point in time we'll know

           25        exactly what expertise she has and whether there's


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            1        anybody else.  And if there's more than one, I'll

            2        ask both sides to please tell the other.

            3             There's plenty of things to get ready for.  It

            4        would be nice if you knew who -- what witnesses each

            5        was going to call for each speciality.

            6             William Fogarty, it says here that "plaintiff's

            7        assertion that Dr. Fogarty was not on the

            8        supplemental witness list on November 12 was

            9        incorrect.  He was."  Was he?

           10             MR. DANDAR:  No.  He's listed in answers to

           11        interrogatories, according to my motion --

           12             THE COURT:  Well, I know, but as I said, they

           13        responded saying that he's on the 2000 -- or the

           14        November 12th witness list.  So I guess we're going

           15        to have to go look at it.

           16             MR. DANDAR:  I guess so.  I didn't --

           17             THE COURT:  You all say he's on there, so if

           18        you'll find me the page --

           19             MR. FUGATE:  Page 7, your Honor.  I'm sorry.

           20             THE COURT:  Here it is, page 9.  Dr. William

           21        Fogarty.  Is that who we're talking about?

           22             MR. FUGATE:  That's who we're talking about.

           23             THE COURT:  Okay.

           24             MR. FUGATE:  I had a different list.  I'm

           25        sorry, your Honor.


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            1             THE COURT:  I'm on page 9 of the witness list

            2        that was filed on November 12th.

            3             MR. FUGATE:  Yes, Judge.

            4             MR. DANDAR:  November 12th -- they were

            5        supposed to be filed on October 28th, according to

            6        your order.

            7             MR. FUGATE:  I think that --

            8             MR. DANDAR:  What number is he on page 9?

            9             MR. FUGATE:  87, I believe.

           10             MR. DANDAR:  I'm sorry.  Okay.  That was a

           11        service date of November the 12th, not October 28th.

           12        I have it reflected no address, no specialty,

           13        doesn't even say he's an expert witness.

           14             MR. FUGATE:  Well, I can tell you who he is --

           15             THE COURT:  Well, says, "Paragraph 3B sets

           16        another witness list deadline for additional

           17        witnesses to be filed and served 35 days before the

           18        pretrial conference; i.e., November 7th."

           19             Who is this Dr. Fogarty?

           20             MR. FUGATE:  Your Honor, he is an accident

           21        reconstruction expert, and he was discovered after

           22        we took the deposition of Mr. Dandar's accident

           23        reconstruction expert.  And he in fact has

           24        testified -- we did a search and Dr. -- or -- he is,

           25        I think, a PhD -- Dr. Fogarty -- or an engineer --


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                                                                         18

            1        that testified in cases involving Mr. Dandar's

            2        expert.  And we interviewed him, we've given his

            3        name, and I think he's somebody that we may call in

            4        place of the other accident reconstruction, although

            5        we can -- accident reconstructionist, although we

            6        can only call one --

            7             THE COURT:  At this time I am going to make you

            8        do something here.  Seems to me --

            9             I'm looking at page 8 of your witness list.

           10             MR. FUGATE:  Mm-hmm.

           11             THE COURT:  I take it this Fogarty hasn't been

           12        deposed.  I see three accident reconstructionists:

           13        Jay Ferro, Michael Stonelake, Mark Fabianic.  Have

           14        any of those been deposed?

           15             MR. FUGATE:  They're -- they're not -- they're

           16        not accident reconstructionists.  They're --

           17        they're -- one of them is a police officer.

           18             THE COURT:  How many -- has any accident

           19        reconstruction expert been deposed?

           20             MR. FUGATE:  Two have.  Mr. Dandar's and the

           21        person who did the first reconstruction that we

           22        provided to him long ago.  Both of those have been

           23        deposed.

           24             THE COURT:  Okay.  Then I need to know -- are

           25        you going to -- you're only going to call one.  If


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            1        he's already taken the deposition of one, I don't

            2        want lawyers listing extra witnesses they have

            3        absolutely no intention of calling.  Is it your

            4        intention at this time to call this fellow?

            5             MR. FUGATE:  It is.

            6             THE COURT:  All right.  And what is your belief

            7        as far as when this witness list was due?

            8             MR. FUGATE:  Your Honor, I believe it was

            9        mailed and faxed, and I think we conceded in the

           10        motion that it was a day after the due date, and I

           11        think there was a weekend in there.  But that we

           12        received witness lists and exhibit lists from

           13        Mr. Dandar that are untimely.  And in this case, we

           14        presumed that as long as we were notifying each

           15        other and we were -- prior to case management

           16        conference, we were fine.

           17             MR. DANDAR:  That's not true.

           18             And this witness list is dated November the

           19        12th.  35 days is November the 7th, so it's not a

           20        day late; it's a week late.

           21             MR. FUGATE:  I think --

           22             THE COURT:  I think it's late.  However, I may

           23        allow them to call him.  But I do want to hear about

           24        this next one that apparently was listed even later

           25        than that.  This is Dr. Madea or Dr. --


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            1             MR. DANDAR:  Yes.  Dr. --

            2             THE COURT:  Madea?

            3             MR. DANDAR:  He's --

            4             MR. FUGATE:  Your Honor --

            5             Excuse me, go ahead.

            6             MR. DANDAR:  He's from Germany and he wasn't

            7        even listed on the witness list.  He was simply

            8        listed in answers to supplemental expert

            9        interrogatories.  So they never complied with the

           10        court order on the witness list.  And he is a

           11        so-called vitreous expert.

           12             THE COURT:  Okay.

           13             MR. FUGATE:  He indeed is a vitreous expert,

           14        your Honor, and he was discovered on -- late.  He

           15        was discovered -- his name was given to us by

           16        Dr. Knight, who you met briefly in the courtroom.

           17        And Dr. Knight had -- we had sent copies of the --

           18        of your orders.  And he had contacted Dr. Madea.

           19        And he indicated that he had -- he's the only person

           20        that Dr. Knight had come in contact with who was

           21        doing any extensive research on vitreous.  And to

           22        the extent that vitreous -- we don't know exactly

           23        yet, 'cause there are going to be motions in limine,

           24        but to the extent that that is an issue, he is an

           25        expert --


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            1             THE COURT:  Your motions in limine on vitreous,

            2        I don't know what in the world they -- it's

            3        obviously a pretty crucial part of the plaintiff's

            4        case, and I don't know any reason that I can think

            5        of why it isn't going to come in.  So, I mean, I'm

            6        probably not going to hear your motions in limine on

            7        that.

            8             MR. FUGATE:  Well, we're going to file this.

            9             THE COURT:  Well, you can file them, and I've

           10        already told you about that kind of stuff.

           11             MR. FUGATE:  At any rate, that's what his

           12        expertise is.

           13             And Mr. Dandar is doing all -- currently doing

           14        all of the expert depositions by telephone, so the

           15        only hardship that works, if you were to allow him,

           16        is that someone from our side has to go and be with

           17        him for the deposition or we have to bring him to

           18        the U.S. for the deposition.  His testimony would be

           19        strictly limited to the area of vitreous --

           20             THE COURT:  Who is your present expert on

           21        vitreous?  I mean, I heard a whole slew of them when

           22        you had your hearing.

           23             MR. DANDAR:  They have a Sebag, who's an

           24        ophthalmologist MD on vitreous, and I think they

           25        have --


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            1             MR. FUGATE:  Sebag is not testifying, your

            2        Honor.

            3             THE COURT:  Is not testifying.

            4             MR. FUGATE:  He's not testifying.

            5             THE COURT:  Okay.

            6             MR. DANDAR:  Oh.

            7             THE COURT:  Who else did you have on -- seemed

            8        like you had an expert here.

            9             MR. FUGATE:  Well, we had -- we had doctors --

           10             THE COURT:  Baden and Wecht.

           11             MR. FUGATE:  Baden and Wecht.

           12             And in this particular --

           13             THE COURT:  But they are really your forensic

           14        pathologists -- one of them is going to be your

           15        forensic pathologist.

           16             MR. FUGATE:  Yes.

           17             THE COURT:  You could call the other one as

           18        your vitreous expert.

           19             MR. FUGATE:  But we would, at this juncture, be

           20        calling Dr. Madea, with the court's permission,

           21        obviously.

           22             THE COURT:  It seems to me that if you have

           23        now, at this late date, well after the pretrial

           24        order, listed a witness that's in Germany, I would

           25        suspect the reason Mr. Dandar is taking telephone


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            1        depositions is because he simply can't be flying all

            2        over the place.  If you want him, you bring him --

            3        you bring him here, right here to this city, for him

            4        to depose in person.  If you don't do that and if

            5        you don't do that within a reasonable time before

            6        trial, like assuming this trial goes on schedule by

            7        the 10th of January, then you can't use him.  So you

            8        want to use him, bring him over here, set him down

            9        with Mr. Dandar to take his deposition.

           10             MR. DANDAR:  And --

           11             THE COURT:  Otherwise he's late and I'll hold

           12        your feet to the fire.  He wasn't --

           13             You know, you can't use the November the 12th.

           14        It was obviously late.  You have a another expert

           15        you have another expert that you've used, been

           16        deposed.  But if you can bring him here, set him

           17        down, let Mr. Dandar depose him, then there won't be

           18        any prejudice.

           19             MR. DANDAR:  And is an interpreter needed?

           20             MR. FUGATE:  No.

           21             Your Honor, if I could, because of scheduling,

           22        if you would extend that to Monday, which I believe

           23        is the 13th, that gives us a weekend -- an

           24        additional weekend to get him here because the first

           25        week --


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            1             THE COURT:  All right.  The 13th.

            2             MR. FUGATE:  Thank you.  And that's --

            3             MR. DANDAR:  And for the record, we stipulated,

            4        so I can take these depositions without flying all

            5        over the world, that the court reporter is local,

            6        I'm local, I'm on a telephone and the court reporter

            7        does not need to be with the witness to swear the

            8        witness in.

            9             THE COURT:  All right.  But I gather somebody

           10        is telling the witness over the telephone that they

           11        are sworn, what that means.

           12             MR. DANDAR:  Yes.

           13             THE COURT:  And the court reporter is swearing

           14        the witness?

           15             MR. DANDAR:  Yes.

           16             (A discussion was held off the record.)

           17             MR. FUGATE:  Actually, Judge Beach has been

           18        swearing the witnesses --

           19             THE COURT:  Okay.

           20             MR. FUGATE:  As I recall.

           21             MR. DANDAR:  But he's not available after this

           22        Friday, so we're going to be doing them without

           23        Judge Beach.

           24             THE COURT:  Okay.

           25             MR. DANDAR:  But the court reporter here is the


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            1        one that would normally swear in the witness, but

            2        the rules require that the court reporter be in

            3        front of the witness physically, but we stipulated

            4        that's not necessary.

            5             THE COURT:  Okay.  Is that true, Mr. Fugate,

            6        you've stipulated that's not necessary?

            7             MR. FUGATE:  Yeah.  As a matter of fact, as I

            8        said, Judge Beach has done it, but to accommodate

            9        getting this done and --

           10             THE COURT:  Is the answer yes?

           11             MR. FUGATE:  The answer's yes.

           12             THE COURT:  All right.  Thank you.

           13             All right.  So that takes care of the motion to

           14        strike.

           15             As far as the striking of the entire witness

           16        list, that's denied.  And you've had loads of those

           17        witnesses.  As to those three, I think you've dealt

           18        with them, okay?

           19             MR. DANDAR:  Yes.

           20             THE COURT:  All right.  As to your late

           21        witness, I've seen no motion to strike, I don't

           22        expect a motion to strike, but if it were filed,

           23        that'll be denied too.  We've both got one late

           24        witness that means, all right?

           25             Okay.  Now, it's five till 10.  There's no


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            1        point in starting.  If you will now, we'll just

            2        stop, you go down to Judge --

            3             MR. DANDAR:  Judge Penick.

            4             THE COURT:  By the way, there's a transcript

            5        I'd like to see before we do this RentClub motion,

            6        if anybody happens to have it here; and if not, if

            7        somebody could make it available.

            8             It is my belief that one of the issues that I'm

            9        going to be discussing with you all is I believe

           10        that the church is going to have to make an

           11        admission here that RTC and Flag are interwoven

           12        before you can possibly, possibly ask me to exclude

           13        somebody that was an employee of a corporation that

           14        from the very outset of this case you all have

           15        made -- and I say you all -- the Church of

           16        Scientology, Flag Services Organization has

           17        maintained from the very outset that RTC was a

           18        separate corporation; should be treated like a

           19        separate corporation.  They've not only done that in

           20        this case but in every other case, in every other

           21        thing I have read.  That will permeate every single

           22        hearing that we've had, I suspect every single

           23        hearing that Judge Moody has had.

           24             I believe, although I'm not positive about

           25        this, because I didn't have this transcript, that


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            1        one of the things that I had in front of me was a

            2        motion to consolidate wherein I was told that the

            3        reason this case up in Clearwater shouldn't be

            4        consolidated -- which by the way, if it had have

            5        been, it would have been a lot easier for Judge

            6        Baird and I -- was because there were separate

            7        lawyers -- well, of course there are not separate

            8        lawyers anymore -- and because RTC was absolutely a

            9        separate corporation and was in no way a different

           10        defendant altogether, in no way related to Flag.

           11        And I believe that transcript will say that.  I

           12        don't know because I haven't looked at it.

           13             MR. DANDAR:  Not only that transcript, but just

           14        this week, Monday, they argued -- RTC argued the

           15        same thing before Judge Greer on our motion for

           16        stay, and they argued that it's a separate

           17        corporation.

           18             THE COURT:  Well, I have no doubt but they're

           19        going to have to change their tune, I believe.  In

           20        fact I've been waiting for an affidavit from Flag.

           21             I believe that you've got huge problems here.

           22        I don't think you can look at what Mr. -- I mean,

           23        you say everything that Mr. Prince says is a lie,

           24        it's not true, and in your motion you say, by the

           25        way, none of this is accurate, none of this is true,


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            1        but since he said it, why, we want the lawyer

            2        excluded.

            3             I'm looking for an affidavit, and when the

            4        affidavit comes in, if it's sufficient and can't be

            5        agreed to, then I'm looking to have an evidentiary

            6        hearing, as I believe the Florida cases provide.

            7        You better talk about this during this little break

            8        because, number one, I'm going to need something

            9        that says RTC and Flag are in fact interrelated and

           10        all this -- all this to-do that's been going on

           11        throughout in front of all these judges is not

           12        accurate.  If you're not willing to say that, then

           13        Jesse Prince, at best, during this time in question

           14        was an employee of RTC, not Flag, the defendant in

           15        this case.

           16             Number two, Jesse Prince was either a

           17        high-level management officer that was privy to

           18        confidential information or he wasn't.  If you're

           19        not willing to swear under oath that he was, this

           20        motion's over.  You cannot have it both ways.

           21             I mean, the burden is on you, it's as clear as

           22        a bell it's on you, to come forward and prove,

           23        pursuant to Florida law, that, A, he had

           24        confidential information regarding this case and

           25        either -- either -- and it's questionable what it


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            1        is -- the circumstances were such that he probably

            2        revealed it or that he did reveal it, one or the

            3        other.  I've never heard the Church of Scientology,

            4        Flag, which is the corporation in front of me, admit

            5        that Jesse Prince had any information.  You've

            6        called him the janitor at best; somebody that in

            7        1980 something or another lost all power.

            8             So you know, if we're going to take this break,

            9        those are the first questions I was going to ask

           10        you, so you might as well take this break and this

           11        opportunity -- I mean, that's my reading of the

           12        Florida cases.  And my reading is the burden's on

           13        you.

           14             As I said, I've been waiting for this

           15        affidavit, and I expect something to be forthcoming,

           16        either testimony -- and not from Mr. Prince, who you

           17        apparently don't believe anything he says and have

           18        contested everything he says, but from one of your

           19        folks, telling me about RTC and how it is related to

           20        Flag, and what confidential information Jesse Prince

           21        had about the Lisa McPherson case or a case that is

           22        so similar that the leaking of confidential

           23        information, the giving of confidential information

           24        prejudiced you.

           25             And I want to explain something to you and I


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            1        want you to understand it.  Once you do that, then

            2        as far as relevance and as far as similar, don't --

            3        I don't want to hear an argument.  If you lose this

            4        motion, when we get to trial, oh, it's not relevant.

            5        It says it's got to be material to this case.  And

            6        so once you state that it is material to this case,

            7        you're stuck with it.  We're not going to have this

            8        one day we hear one thing and one day we hear

            9        another.

           10             So be prepared to respond to those things or be

           11        prepared to withdraw to your motion when we come

           12        back.

           13             All right.  We'll be in recess until Mr. Lirot

           14        is done.

           15             MR. FUGATE:  Judge, remind you to take the

           16        extra order.

           17             THE COURT:  Thanks.  See, I would have

           18        forgotten it.

           19          (A recess was taken from 10:01 to 10:49 a.m.)

           20             THE COURT:  Oh, I forgot those orders.  They're

           21        stamped, they're on Sue's desk.  I'll get them for

           22        you later.

           23             Okay.  Oh, this is the religious -- the

           24        introspection rundown?

           25             MR. LIROT:  Yes.


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            1             MR. DANDAR:  I filed that.

            2             THE COURT:  Okay.  And I believe you all had so

            3        many days to do that too?

            4             MR. LIEBERMAN:  Yes.  Until Thursday, I think.

            5             THE COURT:  Okay.  So I'll just wait until I

            6        get both of those in.

            7             There was something else.  The death

            8        certificate issue.  I don't know -- were you all

            9        going to brief that or was it -- were we just all

           10        aware that was an issue and we're going to address

           11        it sometime?

           12             MR. LIEBERMAN:  I think the latter was the way

           13        it was last --

           14             THE COURT:  Okay.  All right.  Then I'm not

           15        expecting anything on that.  The only thing I'm

           16        expecting is something on this.

           17             MR. LIEBERMAN:  Yes.

           18             THE COURT:  Is that right?

           19             Okay.  All right.  I did say about a half hour

           20        a side, and let's go ahead and go with that.  And

           21        this is the plaintiff's motion -- I'm sorry -- this

           22        is the defendant's motion, and I will hear you.

           23             MR. HERTZBERG:  Thank you, your Honor.  Your

           24        honor, during the break we -- I think we located

           25        the -- the reference in the transcript of the


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            1        consolidation motion --

            2             THE COURT:  Yes.

            3             MR. HERTZBERG:  -- that you -- the court made a

            4        reference to.

            5             Just so the record is clear, if we've located

            6        the right one, that motion to consolidate was a

            7        motion relating to the FSO case that was pending

            8        before Judge Baird.  It was a motion that Mr. Dandar

            9        made to consolidate that case with this case.

           10             Mr. Pope appeared before this court.  It did

           11        not involve RTC.  Mr. Pope argued that Mr. Dandar

           12        was forum shopping and that the case before Judge

           13        Baird had advanced on completely different issues

           14        into a posture where summary judgment had been

           15        granted, and for all those reasons, consolidation

           16        should not be granted.  And your Honor denied

           17        Mr. Dandar's motion to consolidate.

           18             But again, that had nothing to do with FSO --

           19        with RTC.

           20             Having said that --

           21             THE COURT:  He never mentioned that RTC and FSO

           22        were separate defendants?

           23             MR. HERTZBERG:  I don't believe in the excerpts

           24        that I saw.  I -- I didn't see that.

           25             THE COURT:  Well, somebody provide me with a


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            1        transcript.

            2             MR. HERTZBERG:  Leaving that aside, your Honor,

            3        and responding to the concern that you've

            4        identified, we -- we don't think it's a concern.

            5             THE COURT:  Okay.

            6             MR. HERTZBERG:  And we will -- we will address

            7        it as -- we will get an affidavit from

            8        Ms. Yingling -- Monique Yingling, who as your Honor

            9        knows is overseas, is the attorney who has dealt

           10        with these matters to the extent that they resulted

           11        in findings by the Internal Revenue Service of tax

           12        exemption in 1993 for church entities and

           13        recognition expressly of the separate nature,

           14        corporately and ecclesiastically, of RTC and FSO.

           15             But that's not the issue here.

           16             THE COURT:  So --

           17             MR. HERTZBERG:  That's not the issue.  The

           18        issue --

           19             THE COURT:  But I -- excuse me, if I interrupt

           20        you.  I'll try not to take that off your time.  But

           21        I am correct that that was a big issue with the IRS

           22        and it was the church's position that these were

           23        totally separate entities.

           24             MR. HERTZBERG:  And it remains that, your

           25        Honor.


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            1             THE COURT:  It remains that.

            2             MR. HERTZBERG:  It remains that.  But that, in

            3        our view, is no way a flaw in the arguments that we

            4        advance in this motion.

            5             THE COURT:  But so that I know when I enter my

            6        order and I make some finding, it is agreed by you

            7        that RTC and FSO are entirely separate corporations.

            8             MR. HERTZBERG:  Well, I -- they are corporately

            9        separate.

           10             THE COURT:  All right.

           11             MR. HERTZBERG:  I would like to defer to

           12        Ms. Yingling to give the court the ultimate word on

           13        that.  I am merely a humble attorney for FSO, and I

           14        cannot represent to the court what she can represent

           15        to the court about RTC and, in fact, about all the

           16        Scientology entities and how they have been treated

           17        by the IRS and otherwise.

           18             But what -- the point I want to make is that

           19        the issue here is whether Mr. Prince was privy to

           20        confidences and proprietary information, and whether

           21        he was hired, whether he sold himself and accepted

           22        money to -- to make himself accessible to reveal and

           23        disclose those confidences to the plaintiff.  And we

           24        rely on --

           25             THE COURT:  And I don't disagree with you.  I


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            1        think that is indeed an issue.  But I think what

            2        you're going to have to tell me and what you're

            3        going to have to agree to is what are the

            4        confidences that you agree that Mr. Prince was

            5        indeed privy to.

            6             MR. HERTZBERG:  Your Honor, I'm going to get to

            7        that.

            8             THE COURT:  Okay.

            9             MR. HERTZBERG:  I'm going to get to that in the

           10        argument.

           11             THE COURT:  Okay.  Good.

           12             MR. HERTZBERG:  I want -- I want to try to

           13        address at the outset the -- the points that you

           14        raised before the break.  So you asked what -- what

           15        our feeling is about Mr. Prince.  And I want the

           16        court to be totally clear about the position we've

           17        taken in this litigation and we've taken with

           18        respect to the motion.  It is not inconsistent in

           19        any way, and in fact it is totally consistent with

           20        the way that Judge Kovakevitch not only suggested

           21        but in fact decided the RentClub motion.

           22             And our view is that, yes, Mr. Prince, for a

           23        discrete period of time, had a -- an executive

           24        position that was high enough in rank so that he had

           25        access to --


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            1             THE COURT:  And what is that period of time?

            2             MR. HERTZBERG:  1983 to 1987.  I believe in his

            3        affidavit he describes it as March of 1983 to the

            4        spring of 1987.  And I -- for this moment I'm not

            5        disputing that.

            6             THE COURT:  Okay.

            7             MR. HERTZBERG:  I believe that -- that fairly

            8        accurately represents the parameters.

            9             THE COURT:  And that position was as a --

           10        whatever his position was, in RTC.

           11             MR. HERTZBERG:  That's correct.

           12             THE COURT:  Okay.

           13             MR. HERTZBERG:  That's correct, your Honor.

           14             The key here is that he had this access, which

           15        he has openly bragged about and which Mr. Dandar --

           16        and this is -- this is actually pivotal in terms of

           17        our -- our argument and our hopes for success on

           18        this motion.  It is one of the factors and in fact

           19        it is a principal factor that Mr. Dandar has

           20        testified impelled his hiring of Mr. Prince at a

           21        time when Mr. Dandar already had other former

           22        Scientologists or apostate Scientologists on board

           23        as expert witnesses, such as Mr. Young who

           24        Mr. Dandar identified in his testimony.

           25             And the critical testimony on this appears in


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            1        Exhibit B to our -- to our motion, and in

            2        particular, pages 91 through 93, where Mr. Dandar

            3        speaks to -- or actually 90 to 93, which are -- the

            4        pages appended to our Exhibit B, where Mr. Dandar --

            5             THE COURT:  Are you saying B as in boy?

            6             MR. HERTZBERG:  Yes.  B as in boy.

            7             THE COURT:  Okay.

            8             MR. HERTZBERG:  And on page 90, around lines 10

            9        through 12, your Honor -- your Honor may see -- I

           10        also -- just so I don't forget, your Honor, I want

           11        to interrupt myself to hand up to the court a notice

           12        of supplemental filing of record which we serve this

           13        morning on Mr. Dandar --

           14             THE COURT:  All right.

           15             MR. HERTZBERG:  -- when he came in.

           16             Thank you.

           17             Now, if you'll look at pages -- page 90, we see

           18        at lines 10 through 12 Mr. Dandar talking about

           19        Jesse Prince arriving at the scene, and he tells me

           20        his credentials and his experience in the Church of

           21        Scientology.  And we know in context of the other

           22        testimony in this case that this is -- Mr. Dandar

           23        meets him at that multiday conference in Key West,

           24        Florida.

           25             Your Honor is familiar, from the testimony in


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            1        the omnibus hearing, lawyers who had made their

            2        living litigating what we would call

            3        anti-Scientology cases, lawyers such as Ford Greene,

            4        Dan Leipold from California, conferred with

            5        Mr. Dandar.  And Mr. Dandar's admitted they spent

            6        several days together.  And Mr. Prince was there.

            7        And Mr. Dandar met with Mr. Prince and Mr. Dandar

            8        spoke with Mr. Prince and got acquainted with

            9        Mr. Prince and then flew back, according to

           10        Mr. Dandar, to Tampa with Mr. Prince where they

           11        continued what Mr. Dandar calls talking.  And they

           12        were talking quite a bit.

           13             And in the aftermath of that we now have his

           14        testimony, looking at the top of page 92, that

           15        "That's when I made a decision to contact my client,

           16        Dell Liebreich."  That's important, your Honor.

           17        The -- the personal representative is -- is

           18        contacted.  And she's informed.  And I said, "Look,

           19        I have Jesse Prince here and I told him -- I told

           20        him --" I think it means her -- "all about -- I told

           21        her all about Jesse Prince."

           22             And if you skip down on page 92 to lines 13

           23        through 16, we have him touting to his client that

           24        this person was in charge of litigation previously,

           25        years go, for the Church of Scientology.


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            1             THE COURT:  Is that true?  Are you representing

            2        to me that's true?

            3             MR. HERTZBERG:  I don't know -- as an

            4        episode -- I don't know if he was in charge, but we

            5        are -- we are stating to your Honor -- I'm going to

            6        state two things.  First of all, as an overarching

            7        principle, under RentClub, we believe you have to

            8        accept this testimony as true.

            9             THE COURT:  All right.

           10             MR. HERTZBERG:  But there's a twist here

           11        because it is Mr. Dandar's testimony.  Actually, in

           12        the context of Mr. Dandar's testimony, it almost

           13        doesn't matter whether it's true or not because he

           14        thought that.  This is him telling his client what

           15        he believed based on what Mr. Prince told him.

           16             So what you have here, your Honor, is a stark

           17        concession on Mr. Dandar's part, or acknowledgement

           18        in a candid moment here, in his testimony under

           19        oath, of a motivation, a principle and we would say

           20        overriding consideration for his hiring of Mr.

           21        Prince, as you'll see in a moment.

           22             And to continue to the end of that line, he

           23        went -- he, meaning Mr. Prince, went around the

           24        world hiring law firms; he, Mr. Prince, went around

           25        telling them how to conduct their litigation.


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            1             So this is what Mr. Dandar believes.  Whether

            2        Mr. Prince was lying to him or not or puffing, we

            3        believe -- we are conceding to your Honor that

            4        Mr. Prince, in his position with RTC, had access to

            5        attorney-client information.

            6             THE COURT:  And I'm going to tell you, that if

            7        you're going to prevail in this, you are going to

            8        have to file and tell me what that is.

            9             MR. HERTZBERG:  We -- okay.  Your Honor, may I

           10        address that?

           11             THE COURT:  It is relevant and material to this

           12        case.

           13             MR. HERTZBERG:  Well, your Honor, when get

           14        further in my argument, I'm going to try to persuade

           15        you.  Although you seem to have a very fixed view

           16        of -- of -- of what you -- of what you think or what

           17        you do want at the moment.  But I want to change

           18        your mind about that because I want to speak to you

           19        a little bit later on about the law and the

           20        presumption.

           21             THE COURT:  Counsel, let me tell you something.

           22        You address this as if perhaps when you file these

           23        things I don't read them.  Let me assure you --

           24             MR. HERTZBERG:  I know you do.

           25             THE COURT:  I have read your memorandum.


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            1             MR. HERTZBERG:  Right.

            2             THE COURT:  Let me assure you that I have read

            3        RentClub three or four times.  Let me assure you

            4        that I have also read what you didn't file and what

            5        you didn't allude to and what oftentimes the church

            6        doesn't file, which is contrary Florida law, the law

            7        that this court is bound by, which is district

            8        courts' opinions, particularly the Second District

            9        Court, and if there's nothing from the Second

           10        District, other district courts in Florida, I am

           11        absolutely bound by those decisions.

           12             Now, there are decisions in the state of

           13        Florida that discuss RentClub and distinguish

           14        RentClub.  All one need do is go to Westlaw and go

           15        down and you'll see reviews to follow.  Disagreed

           16        with.  And these are Florida cases.  And you know

           17        what, there's not a one of them cited in your brief

           18        except one where you're suggesting that the Florida

           19        Supreme Court did not deal with the issue in

           20        RentClub that you want dealt with.

           21             And I will grant you that that is true, that

           22        what that Florida Supreme Court case dealt with is

           23        whether or not a lawyer has a right to contact, ex

           24        parte, an employee.  And the Supreme Court said that

           25        RentClub in essence is wrong.  And that isn't really


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            1        the issue here, and I agree with you.

            2             But all I'm suggesting to you is I didn't get

            3        any of this Florida law from your brief.  I did get

            4        some from Mr. Dandar.  And of course, then as I

            5        usually have to do when I have these major motions

            6        from you or from Mr. Dandar, I then have got to

            7        define the law, go research the issue myself so that

            8        I have it all, so that I've read it all and so that

            9        I can figure out pretty much what I think it is.

           10             Now, that's sort of like an appellate judge.

           11        And so, you know, here we are like you're making an

           12        appellate argument.  So you're right to try to

           13        persuade me on things, but you might -- you must not

           14        think that I'm not prepared for this argument and

           15        that I haven't read all these cases that -- which

           16        you cited, which is RentClub and that one other case

           17        from who knows where, California or somewhere,

           18        that -- some --

           19             MR. HERTZBERG:  Right.

           20             THE COURT:  -- opinion that you can't even

           21        find, and of course no copy was provided to me so I

           22        haven't read that case.

           23             MR. HERTZBERG:  Your Honor, we will remedy

           24        that.

           25             THE COURT:  Good.


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            1             MR. HERTZBERG:  I'm not suggesting for a

            2        moment, your Honor, either by implication or in any

            3        other way, that your Honor isn't totally prepared

            4        and knows all the law --

            5             THE COURT:  Well, you have to assume --

            6             MR. HERTZBERG:  When I --

            7             THE COURT:  -- that when I read this law --

            8             MR. HERTZBERG:  We do.

            9             THE COURT:  -- I get some ideas just like

           10        appellate judges do.

           11             MR. HERTZBERG:  We do.

           12             THE COURT:  And when I get some ideas, what I

           13        really think it's important for me to do is to share

           14        where I'm coming from with you, so that you can, as

           15        you would want to do on appeal, address those things

           16        that I have concern about.

           17             I've got two ways I can do this argument for

           18        half an hour.  You can either address my concerns or

           19        you can just go on and talk about whatever it is you

           20        want to talk about.  When you're done, I'm going to

           21        rule.

           22             MR. HERTZBERG:  I will -- I will address -- I

           23        thought I was addressing your concerns.

           24             THE COURT:  Well, you keep saying, When I get

           25        later into my argument I'm going to.  Gee, I was


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            1        taught in moot court when a judge asks a question

            2        you jump to that and answer it.

            3             MR. HERTZBERG:  Your Honor, I thought I had

            4        addressed the first of the two, and I am addressing

            5        right now the matter of Jesse Prince and what we

            6        think -- what we think this court -- how -- how this

            7        court should view Jesse Prince in his role,

            8        according to the testimony of Mr. Dandar, the

            9        testimony of Mr. Prince and some variations.  I'm

           10        dealing with that now as best I can.

           11             THE COURT:  And I'm going to make myself clear

           12        one more time and then I'm going to let you finish

           13        your argument uninterrupted.

           14             I want to know what it is -- it should have

           15        been before me in an affidavit by now -- what it is

           16        the church is going to tell me that Jesse Prince --

           17        what confidential information did Jesse Prince have

           18        that is relevant to this case or is similar in

           19        another case and of the variety that is so similar

           20        that it has some materiality in this case.  What is

           21        it that you all are telling me he has.

           22             MR. HERTZBERG:  I'm going to come -- I'm coming

           23        to that, your Honor.

           24             THE COURT:  All right.

           25             MR. HERTZBERG:  And let me say one thing.  The


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            1        case that we believe is a pivotal case here, which

            2        is a Supreme Court of Florida case, which was

            3        decided three years after the Second DCA case which

            4        your Honor is alluding to, is very important.

            5        That's the State Farm Mutual Automobile Insurance

            6        Company versus K.A.W., K, period; A, period; W,

            7        period, 575 So.2d 630.  And it was decided in 1991.

            8             It is a case that we rely on because of the

            9        irrebuttable -- irrefutable presumption and because

           10        it says, in unequivocal terms, that the appearance

           11        of impropriety standard is alive and well and very

           12        much a part of Florida law and the way attorneys

           13        must conduct themselves.

           14             And that case, incidentally, was cited not only

           15        in RentClub by Judge Kovakevitch, but it was also

           16        cited in the Carnival case which the plaintiff

           17        relies upon.  And that is an important case, and it

           18        was decided three years after that Esquire case, the

           19        Second DCA case, which I will come back to.

           20             What I want to stress to your Honor, when I

           21        talk about Jesse Prince, is while we admit that he

           22        had an executive position that -- that allowed him

           23        to be privy to attorney-client confidences along the

           24        lines that he represented to Mr. Dandar that he had

           25        and which Mr. Dandar believed and which Mr. Dandar


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                                                                         46

            1        used as a motivation to hire him, we do not for a

            2        moment concede that Mr. Prince -- and we never have,

            3        and this is a distinction in this case -- we don't

            4        for a moment concede that Mr. Prince was an expert

            5        or had any ability to testify in this litigation or

            6        any other litigation about Scientology practices, to

            7        interpret the religion of Scientology or any other

            8        aspects of the ecclesiastic nature of Scientology.

            9        That is the position that we maintain.

           10             And yes, he was a janitor afterwards, after he

           11        had dealings with the attorneys and after he -- as

           12        he testified -- and the excerpts are in the

           13        supplement that I've given your Honor this

           14        morning -- after he testified that he had strategy

           15        discussions with myself, with Mr. Lieberman -- two

           16        attorneys who are involved in the defense of this

           17        case on behalf of the church -- with Mr. John

           18        Peterson, who was the in-house counsel for the

           19        Church of Scientol- -- for various Church of

           20        Scientology entities, for -- with Mr. Earle Cooley,

           21        who was national trial counsel and the major outside

           22        counsel for the church, and several other attorneys

           23        who he identifies by name.

           24             And the questions were, "Mr. Prince, did you

           25        discuss strategy with this attorney," and he said,


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            1        "Yes," and, "Did you discuss strategy with that

            2        attorney," and he said, "Yes."  Those excerpts, your

            3        Honor, are on -- in the very first of the -- tab

            4        number 1 there.

            5             THE COURT:  Okay.

            6             MR. HERTZBERG:  Pages 680 through 683.

            7             That's what he in effect is an expert on.  Not

            8        the religion.  And he was defrocked, as your Honor

            9        knows, because he committed gross violations against

           10        the precepts of Scientology.

           11             So there's nothing inconsistent about our

           12        position with respect to Mr. Prince.  Moreover, on

           13        the subject of his knowledge and access to

           14        confidences and proprietary information, under the

           15        analysis of Judge Kovakevitch in RentClub, it is

           16        very clear that she accepted the representations of

           17        the former employee as a given for purposes of

           18        deciding the motion.

           19             And I -- it's very clearly set forth at page

           20        655 of Judge Kovakevitch's --

           21             THE COURT:  I realize that, and I guess that's

           22        what I'm asking you.  Is that what you are asking me

           23        to do?  Is that --

           24             MR. HERTZBERG:  Absolutely.

           25             THE COURT:  -- what you are going to rely on?


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            1             MR. HERTZBERG:  I'm sorry?

            2             THE COURT:  Is that what you are going to rely

            3        on?

            4             MR. HERTZBERG:  Yes.

            5             THE COURT:  You're not going to present an

            6        affidavit stating what these conflicts are, stating

            7        what this confidential information is; you're going

            8        to rely on the statements and -- under oath and

            9        otherwise of Mr. Prince as to what they are.

           10             MR. HERTZBERG:  We are not -- I don't

           11        anticipate -- first of all, we are relying on his

           12        statements under oath for purposes of this motion,

           13        and believe your court -- this court has to accept

           14        them the way Judge Kovakevitch did for purposes of

           15        deciding the motion.

           16             THE COURT:  Okay.

           17             MR. HERTZBERG:  Absolutely.  And we believe --

           18             THE COURT:  And that is your position.

           19             MR. HERTZBERG:  Yes.  And we believe those

           20        representations, in combination with Mr. Dandar's

           21        testimony -- and I didn't get through all of it

           22        because we ended up in -- you and I in colloquy --

           23        but if you go on, on pages 92 and 93, you'll see

           24        that your Honor then clarified the record and asked,

           25        "Is this what you're conveying -- Mr. Dandar, is


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            1        this what you were conveying to your client?"

            2        And -- and he said --

            3             THE COURT:  Tell me where you are again 'cause

            4        I've lost you.

            5             MR. HERTZBERG:  I'm sorry.

            6             THE COURT:  We're back to --

            7             MR. HERTZBERG:  Back to Exhibit B, your Honor.

            8             THE COURT:  Exhibit B.  Thank you.

            9             MR. HERTZBERG:  Back to Exhibit B.  After

           10        Mr. Dandar testifies on page 92, in the middle of

           11        the page, this person was in charge of litigation,

           12        he went around hiring -- around the world hiring law

           13        firms, he went around telling them how to conduct

           14        their litigation, the court then says, in response

           15        to Mr. Weinberg's objection -- court clarifies it --

           16        and on the next page as well, page 93, where the

           17        court says, "I'm assuming that he's saying Jesse

           18        Prince told him this."  At this point in time he --

           19        he, meaning Mr. Dandar, called his client, and he

           20        was reviewing what he had learned to his client, and

           21        the witness, which is Mr. Dandar, says, "Right."

           22        That's on page 10.

           23             So this is what Mr. Dandar told Ms. Liebreich,

           24        and he told her that when he was giving her the

           25        reason for hiring Mr. Prince.  And this is the


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            1        prelude, of course, to payments of huge sums of

            2        money by Mr. Dandar directly to Prince --

            3        Mr. Prince, in excess of $60,000, in the context of

            4        payments afterwards made by Mr. Dandar's at that

            5        time collaborator, Mr. Minton, both before and after

            6        through the LMT and through all the other means that

            7        your Honor has become acquainted with during the

            8        omnibus motion hearing; we're talking about a total

            9        of over $300,000.

           10             And the reason -- and then Mr. -- Mr. Dandar --

           11        this is important too -- Mr. Dandar felt clearly

           12        that Mr. Prince occupied a special position.  And we

           13        have excerpted testimony for you there where he

           14        says, "Vaughn Young -- I had Vaughn Young, but he

           15        didn't know what Mr. Prince knew."  That's in

           16        Exhibit C to the motion, your Honor, where he says,

           17        "But Jesse Prince was --" as far as being in an

           18        executive position "-- was far more advanced in the

           19        position of executive of Scientology."  And he

           20        compares him -- and he uses the term "inside

           21        knowledge."  "He was -- he also was the only one

           22        that had inside knowledge," Mr. Dandar's term, "as

           23        to the executives of Scientology," and he goes on to

           24        describe Mr. Miscavige and to name Mr. Miscavige and

           25        others who then were promptly sued in contravention


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                                                                         51

            1        of the agreement that had been signed by Mr. Dandar

            2        two years prior and the agreement which now has been

            3        found by two courts, one through a trial and verdict

            4        and one the local one in Florida through summary

            5        judgment -- through summary judgment, to have been

            6        breached.

            7             And what we have here, your Honor, is a picture

            8        of Mr. Dandar hiring him for this reason, among

            9        others.  And you know, on the appeal of the RentClub

           10        case, the lawyers who were -- had been disqualified

           11        appealed, and they said well, he was the employee we

           12        brought on board and we paid and we bought his

           13        testimony, was the only one who knew certain things.

           14        Well, this is reminiscent of that.  But that's not

           15        an excuse, the 11th Circuit said.  Mr. Prince could

           16        have been the last man on earth who knows certain

           17        things that Mr. Dandar may have valued in this case,

           18        even apart from the confidences, and you cannot have

           19        this kind of situation where you buy and purchase

           20        access to a former employee who had communications

           21        and access to discuss strategy with a pantheon of

           22        lawyers, including two lawyers who are involved in

           23        this very case now defending FSO.

           24             Now --

           25             THE COURT:  So you're not --


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            1             MR. HERTZBERG:  -- what is the relationship.

            2             THE COURT:  You're not going to tell me what it

            3        is the church's position is as to what strategy was

            4        discussed between Mr. Prince and --

            5             MR. HERTZBERG:  I'm going to answer --

            6             THE COURT:  -- those lawyers --

            7             MR. HERTZBERG:  Okay.

            8             THE COURT:  -- regarding something that is

            9        important to this case.

           10             MR. HERTZBERG:  I'm going to answer that now.

           11             At the moment, I'm not, your Honor.  I'm going

           12        to -- we're going to have to -- I will confer with

           13        my co-counsel.  I am not lead counsel in this case,

           14        as your Honor knows.  I'm going to have to speak

           15        with the client.  But I am telling you why I don't

           16        think we have to at all, and I'm not going to -- I'm

           17        not going to tell your Honor that the affidavit or

           18        affidavits we may submit after this morning's

           19        hearing --

           20             THE COURT:  I have news for you.  I'm prepared

           21        to rule.  We're going -- I'm going to start ruling

           22        on these cases.

           23             You have no affidavit here today.  This is your

           24        presentation.  You have no affidavit and there is

           25        nothing that you're prepared to state to me or put a


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            1        witness on this stand under oath to tell me what

            2        confidential information it is --

            3             MR. HERTZBERG:  I'm going to tell you why I

            4        don't think --

            5             THE COURT:  -- he's privy to.

            6             MR. HERTZBERG:  -- under the law, under the

            7        State Farm case, I don't believe we have to.

            8             And the State Farm case --

            9             THE COURT:  Your answer then, is you're not

           10        going to do that, is that correct?

           11             MR. HERTZBERG:  We're not going to do it today.

           12             THE COURT:  Okay.  Go ahead.

           13             MR. HERTZBERG:  Under the State Farm case, your

           14        Honor, the appearance of impropriety was -- was a

           15        standard that was -- and Judge Kovakevitch used the

           16        State Farm case appearance of impropriety standard

           17        in deciding the RentClub case.

           18             And the Supreme Court of Florida, which is the

           19        authority we're relying on here, stressed two

           20        reasons why the appearance of impropriety and the

           21        concomitant, irrefutable presumption that arose when

           22        there was an appearance of impropriety, should be

           23        applied to these situations.  And one of them was

           24        because it would be very difficult to -- to show

           25        that a specific confidence was violated.


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            1             And the second reason, and I think it's a very,

            2        very important one, and it guided us here in --

            3        today, aside from the short -- short notice in the

            4        schedule -- is the court -- the Supreme Court of

            5        Florida --

            6             THE COURT:  Let's not kid ourselves.  We had it

            7        scheduled for next Monday.  Actually, we had it

            8        scheduled for last week, did we not?

            9             MR. HERTZBERG:  Yes, your Honor.

           10             THE COURT:  We had it scheduled for at the end

           11        of the pretrial conference.

           12             MR. HERTZBERG:  Yes.

           13             THE COURT:  So you were supposed to be ready

           14        before today.

           15             MR. HERTZBERG:  Right.

           16             THE COURT:  Fully ready.  So this is no short

           17        notice.  I'm not going to hear that.

           18             MR. HERTZBERG:  Okay.  Your Honor, I --

           19             THE COURT:  Right?

           20             MR. HERTZBERG:  Yes.  Yes, your Honor.

           21             THE COURT:  All right.  Move on.

           22             MR. HERTZBERG:  Your Honor, the -- the

           23        principal reason -- rationale behind the ruling of

           24        the Supreme Court of Florida in the State Farm case

           25        had to do with not having to disclose your


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                                                                         55

            1        confidences in the course of vindicating your

            2        entitlement to the disqualification.  They thought

            3        that that would be an exercise in futility.

            4             And that's what we're relying on.  If we come

            5        in to court, by affidavit, by testimony or

            6        otherwise, and we say, well, there's this and

            7        there's that, if -- the cat is out of the bag.

            8        What -- what I think is important is that Mr. Dandar

            9        clearly thought that Mr. Prince could convey that

           10        kind of information to him and to provide it.

           11             THE COURT:  I'm --

           12             MR. HERTZBERG:  And I want to --

           13             THE COURT:  I'm --

           14             MR. HERTZBERG:  -- and I want to talk

           15        generically about it.

           16             THE COURT:  Excuse me, Counsel, lord have

           17        mercy, please, when a judge starts to talk, that

           18        really is time for a lawyer to stop.

           19             MR. HERTZBERG:  Yes.

           20             THE COURT:  At least in my courtroom it is.

           21        Perhaps other judges allow you to continue to talk.

           22        I do not.

           23             Now, I might tend to agree with you were this a

           24        situation where you are coming in and you are

           25        stating to me, without my knowing who -- much --


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                                                                         56

            1        very much about Jesse Prince except that he worked

            2        for Flag, I would assume, the right corporation who

            3        is the defendant in this particular case, or RTC,

            4        if -- if in fact they're so interrelated, which has

            5        always been the plaintiff's position, had been very

            6        contrary to the defendant's position throughout this

            7        and every other litigation I'm aware of.

            8             I would understand that if you said, "This guy

            9        has got confidential information.  We don't feel

           10        like we should have to disclose it because by virtue

           11        of the very fact that we have to disclose it this is

           12        something we shouldn't have to do."  That's not the

           13        case here.  You have challenged Jesse Prince --

           14             When I say you, please understand I'm talking

           15        about the defendants in this case.

           16             MR. HERTZBERG:  That's right.

           17             THE COURT:  The counterplaintiffs have

           18        challenged Jesse Prince at every turn.  You have

           19        challenged his position as an expert; you have

           20        challenged his veracity at every turn.  You have

           21        said that he is not to be believed; that he is so

           22        biased and so tainted that he should be excluded as

           23        a witness.  I have said myself he's so biased if

           24        were under the federal system I'd throw him out as a

           25        witness.  Can't do that in the state court.  I've


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                                                                         57

            1        talked about bias.

            2             I mean, this has been your position all along.

            3        And then I go to your motion, where I'm looking for,

            4        in your motion, having read these cases, I'm looking

            5        for your conflict, what it is -- where you -- where

            6        you admit that there is a conflict; that Jesse

            7        Prince is a high-ranking official that has

            8        information, valuable information, attorney-client

            9        information, work product information, and you say

           10        it's true, and he's gaining an unfair advantage for

           11        it, whether you have to disclose it or not.

           12             And I don't see that.  What I see is something

           13        quite to the contrary.  What I see is the only place

           14        where this is mentioned, the church by this motion

           15        does not concede the veracity or accuracy of the

           16        various claims made by Mr. Prince.

           17             In RentClub the trial court characterized the

           18        assertions made by former employees regarding his

           19        credentials as, quote, claims, end quote, and

           20        accepted them as such for purposes of rendering her

           21        ruling.  And so that's what I see, and that's why

           22        I'm trying to give you every opportunity to back off

           23        of that position or stick with it.  And I think what

           24        you're telling me here in this oral argument is

           25        you're going to stick with that, that's what you


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                                                                         58

            1        believe you can do, that's what Judge Kovakevitch

            2        did and that's what you're doing.

            3             MR. HERTZBERG:  I am, except there's a --

            4        there's a refinement.  We have said explicitly to

            5        your Honor this morning, or I have, that we concede

            6        that Mr. Prince had access to --

            7             THE COURT:  He was a high-ranking official.

            8             MR. HERTZBERG:  To attorney-client -- that he

            9        was of sufficient rank that he had access to

           10        attorney-client information and proprietary

           11        information.

           12             THE COURT:  That pertains to this case.

           13             MR. HERTZBERG:  Yes.

           14             THE COURT:  Okay.

           15             MR. HERTZBERG:  And that -- and that would be

           16        an advantage to the plaintiff in this case, your

           17        Honor.

           18             THE COURT:  Okay.

           19             MR. HERTZBERG:  And that is because --

           20             THE COURT:  And he left in '87 and Lisa

           21        McPherson died in --

           22             MR. HERTZBERG:  And I --

           23             THE COURT:  -- '95.

           24             MR. HERTZBERG:  That's right.

           25             THE COURT:  And you're still alleging that


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                                                                         59

            1        whatever information he got from '83 to '87 is

            2        somehow or another confidential as to the Lisa

            3        McPherson case, when all you've ever told me is that

            4        RTC deals with trademark.

            5             MR. HERTZBERG:  No.  I haven't, your Honor.

            6             THE COURT:  Well, maybe you haven't, but

            7        you're --

            8             MR. HERTZBERG:  Well --

            9             THE COURT:  -- one of the many lawyers -- the

           10        many, many, many lawyers that I deal with, you're

           11        not here all the time.  Frankly, when the church

           12        says it through one of the lawyers, it's as if you

           13        say it.

           14             RTC deals with trademarks, doesn't it?

           15             MR. HERTZBERG:  It does, but that's far from --

           16        that's far from the exclusive focus of RTC.  RTC in

           17        the largest sense -- and I don't want to usurp

           18        Ms. Yingling's role here, because she is the one to

           19        properly address this.

           20             THE COURT:  This is your day for this motion.

           21        I'm not even telling you that I'm going to accept an

           22        affidavit from Ms. Yingling.  You're here today to

           23        do this motion.  If I'm prepared to rule at the

           24        conclusion of this case, we're not going to have an

           25        affidavit from Ms. Yingling.


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            1             MR. HERTZBERG:  Right.

            2             THE COURT:  I gave you an opportunity during

            3        the break to give an affidavit or put somebody on

            4        the witness stand or something.  You've elected not

            5        to and you're asking me, I guess, to wait for

            6        Ms. Yingling, another lawyer, out-of-state lawyer,

            7        to tell me what?  That RTC is separate from Flag.

            8             MR. HERTZBERG:  No --

            9             THE COURT:  I know that.

           10             MR. HERTZBERG:  -- there's more to it than

           11        that, your Honor.  And I -- the important part of

           12        that is that RTC has a larger function, and that is

           13        to protect the religion of Scientology.  It's not

           14        just a question of making sure that the ecclesiastic

           15        doctrines are properly applied; that the trademarks

           16        are --

           17             THE COURT:  Protected.

           18             MR. HERTZBERG:  -- utilized properly.

           19             THE COURT:  And protected.

           20             MR. HERTZBERG:  I'm sorry?

           21             THE COURT:  And protected.

           22             MR. HERTZBERG:  And protected.

           23             And a lawsuit such as the one here is -- and I

           24        will tell you in a moment why I'm saying this -- but

           25        a lawsuit such as the one here is a lawsuit which


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                                                                         61

            1        involves a defense by lawyers who are familiar with

            2        how to deal with what I call anti-Scientology cases.

            3        And those cases existed, there were -- there were

            4        scores of them in the period where Mr. Prince was

            5        saying that he was discussing strategy with myself,

            6        Mr. Lieberman and at least four or five other

            7        lawyers that he named who are --

            8             THE COURT:  On the McPherson case?

            9             MR. HERTZBERG:  No.  Because Ms. McPherson was

           10        alive at the time.

           11             THE COURT:  Okay.

           12             MR. HERTZBERG:  So obviously, if the standard

           13        is -- and I don't believe it is, under the law --

           14        that the case had to have existed at the time, then

           15        we're out of luck.  But that's not --

           16             THE COURT:  Well, related --

           17                     (Simultaneous speakers.)

           18             MR. HERTZBERG:  -- the standard.

           19             THE COURT:  -- I'll --

           20             MR. HERTZBERG:  It's related.

           21             THE COURT:  -- grant you --

           22             MR. HERTZBERG:  It's similar.

           23             THE COURT:  Similar, related to; something.

           24             MR. HERTZBERG:  It's similar, and it is

           25        related.


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                                                                         62

            1             And it is precisely the kind of scenario where

            2        RTC, in its role of protector of the religion, will

            3        be concerned where the religion of Scientology is

            4        being attacked from any source, including a lawsuit.

            5        And that's exactly the kind of lawsuit that has been

            6        maintained here, in particular since Mr. Prince's

            7        involvement.

            8             This has become -- become an attack on the

            9        ecclesiastic leadership of the church, on

           10        Mr. Miscavige in particular.

           11             Let's not forget that right after Mr. Prince

           12        was hired and began to sell his testimony to

           13        Mr. Dandar's firm, Mr. -- in contravention of that

           14        agreement, RTC was sued; they tried to bring RTC in;

           15        they tried to bring Mr. Miscavige in as a defendant.

           16        And they succeeded for a while.  And they named

           17        Mr. Rathburn as a putative defendant.  They then

           18        abandoned the course of action as to RTC and

           19        Mr. Rathburn, but Mr. Miscavige was in the case for

           20        a while.

           21             That was a direct attack on the leadership of

           22        the church, the leadership of the religion, the --

           23             THE COURT:  And RTC.

           24             MR. HERTZBERG:  And RTC.  That's exactly right.

           25             THE COURT:  The head of RTC.


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                                                                         63

            1             MR. HERTZBERG:  That's correct.

            2             THE COURT:  And that's what I've been told.  He

            3        doesn't head up the Sea Org.  You all deny that.

            4             MR. HERTZBERG:  The Sea Org has nothing to

            5        do --

            6             THE COURT:  Sea Org has nothing to do with it.

            7             MR. HERTZBERG:  That's right.

            8             THE COURT:  Mr. Miscavige is the ecclesiastical

            9        leader of the church through his position as

           10        chairman of the board of RTC.

           11             MR. HERTZBERG:  That's right.

           12             THE COURT:  Okay.  Not Flag.

           13             MR. HERTZBERG:  That's correct.

           14             THE COURT:  Okay.

           15             MR. HERTZBERG:  And your Honor, it was an

           16        attack on the religious doctrine of the church, a

           17        central focus of the trial, and of this church -- of

           18        this case has been the introspection rundown.

           19        Mr. Dandar made the introspection rundown a focus of

           20        his complaint.  Numerous Scientology practices are

           21        the focus of the complaint.  These have been

           22        elaborated upon since Mr. Prince's involvement.

           23             So there can't be any question.  This is not --

           24        you know, if this case, the McPherson case or the

           25        Liebreich case --


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                                                                         64

            1             THE COURT:  Well, the other day, if I

            2        remember --

            3             Just let me stop you for just a minute.

            4             If I remember correctly, Mr. Dandar said, well,

            5        really, no, there wasn't any introspection rundown.

            6        It was the church that was quite adamant that there

            7        was an introspection rundown.

            8             MR. HERTZBERG:  He alleged it in his complaint,

            9        your Honor.  And that issue will be resolved --

           10             THE COURT:  But I mean, I know --

           11             MR. HERTZBERG:  -- shortly.

           12             THE COURT:  Maybe you weren't present, but I do

           13        recall that Mr. Dandar was saying that issue isn't

           14        resolved; I don't think Lisa McPherson was in an

           15        introspection rundown.  And the church is quite

           16        adamant saying that she was.

           17             MR. HERTZBERG:  Your Honor --

           18             THE COURT:  And the church has always

           19        maintained that she is This isn't Mr. Prince; this

           20        is the church's position, isn't it?

           21             MR. HERTZBERG:  It is -- it is the church's

           22        position, your Honor.

           23             But there are -- this lawsuit -- let me put it

           24        in as stark terms as possible.  If this were a case

           25        that were devoid of all the trimmings and the


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                                                                         65

            1        essence of an attack on the religious practices of

            2        Scientology, the trial in this case might last

            3        perhaps a week.  You put a couple of doctors on the

            4        stand, they put theirs on, we put ours on, and

            5        they'd have a grand --

            6         (There was an interruption in the proceedings.)

            7             MR. HERTZBERG:  Your Honor, this -- if --

            8        devoid of the trappings of the attack on the

            9        religion that has occurred to date and which is

           10        forecast for the trial.

           11             THE COURT:  There isn't going to be that

           12        forecast for the trial.  You all have told me eight

           13        weeks with nothing forecast for the trial except

           14        what I perceive to be necessary as a brief

           15        explanation of the introspection rundown to a jury

           16        and my telling them they have to accept that as

           17        gospel and fact and not to intrude on it because

           18        that's a religious doctrine.  Now apparently

           19        Mr. Lieberman and others don't like that because

           20        they seemed to make that an issue on a writ of

           21        certiorari.

           22             However, I don't much plan to have a bunch of

           23        religion in this trial, because it's a wrongful

           24        death case.  I'm perfectly willing to tell the jury

           25        or allow your lawyers or your witnesses to explain


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                                                                         66

            1        your religious practice.  I thought it would be much

            2        better coming from me telling the jury, this is a

            3        religious practice, and they're to stay out of it.

            4        If the lawyers don't want that and they want to put

            5        witnesses on to explain that, perfectly all right

            6        with me.

            7             But I guarantee you, I guarantee you, the

            8        plaintiff is not going to put the church on trial.

            9        They're going to do a wrongful death case.  And I

           10        further guarantee you that it's going to be your

           11        side that's going to be putting the religion in the

           12        case.  There is not a doubt in my mind, unless

           13        Mr. Dandar doesn't have a clue on how to try a case.

           14             MR. HERTZBERG:  Your Honor --

           15             THE COURT:  I don't care what he said and I

           16        don't care what he's doing, but you're not going to

           17        hear him put the church religion on trial.  Not in

           18        the wrongful death.  Maybe in your complaint, in

           19        your counterclaim, where you talk about abuse of

           20        process -- and that was all the way along in that

           21        35-day hearing -- yes, indeed, the practices of the

           22        church are indeed going to be relevant to defend

           23        that case.  That's your complaint, not his

           24        complaint.  His complaint's a wrongful death

           25        complaint.


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                                                                         67

            1             MR. HERTZBERG:  Your Honor --

            2             THE COURT:  You watch, you watch, Counselor,

            3        and see who makes religion an issue in this case.

            4             MR. HERTZBERG:  Your Honor --

            5             THE COURT:  And as I said, well, I was willing

            6        to take the lead for the church and present that to

            7        the jury rather quickly and rather absolute;

            8        apparently that isn't wanted by the church.  So

            9        they're going to have to parade the witnesses into

           10        the courtroom with me being very quiet while they do

           11        that for the benefit of the jury.

           12             Now, that's who's making religion an issue.

           13             And of course, since Mr. Lieberman took

           14        exception to my suggestion that that would be a very

           15        short matter, shouldn't need to be dealt with much

           16        at all, then I have to assume that's the way the

           17        church is going to try this case.  They want no help

           18        from me except in jury instruction.  They're going

           19        to put on their own case, and that's perfectly okay.

           20        I just was going to do it for them.

           21             MR. HERTZBERG:  Judge Schaeffer, irrespective

           22        of how the trial is going to play out, the fact is

           23        that this was not framed as a simple wrongful death

           24        case.  This -- this case has been litigated, in

           25        particular since Mr. Prince's involvement, as an


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                                                                         68

            1        anti-Scientology case, and he has injected -- he

            2        injected the end cycle and -- and -- and greatest

            3        good for the greatest number and all those theories

            4        that you heard about --

            5             THE COURT:  You don't expect to hear that in

            6        the wrongful death case, do you?

            7             MR. HERTZBERG:  No.  But it has been --

            8             THE COURT:  No.  You expect to hear --

            9             MR. HERTZBERG:  -- part -- your Honor -- your

           10        Honor --

           11             THE COURT:  You expect to hear --

           12             I mean, this was interjected because of, number

           13        one, an affirmative defense that you raised and,

           14        number two, a counterclaim that you raised.  There's

           15        not going to be any greatest good for the greatest

           16        number.  There isn't going to be any fair game.

           17        There isn't going to be anything --

           18             MR. HERTZBERG:  But there has been --

           19             THE COURT:  -- in the wrongful death case.

           20             MR. HERTZBERG:  Judge Schaeffer, the answer is,

           21        however, that we cannot ignore what has happened to

           22        date.  What has happened to date is, that this case

           23        was not litigated, since Mr. Prince's involvement in

           24        particular, as a straightforward wrongful death

           25        case.  It was litigated as an attack on Scientology


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                                                                         69

            1        and its ecclesiastic leadership, and there are

            2        remnants of it even in the aftermath of the

            3        amendment to the complaint which -- the amended

            4        complaint which Mr. Dandar just filed.  There still

            5        are remnants about the command lines which --

            6             THE COURT:  There is evidence about the command

            7        lines.  Quite frankly, there is evidence enough to

            8        give to the jury that the reason for the delay in

            9        getting attention for Lisa McPherson is because,

           10        clear up to the top -- there's plenty of evidence,

           11        if he elects to put it on, that Mr. Miscavige was

           12        indeed somehow notified.

           13             What I made clear is there is no evidence in

           14        the record, other than the pure speculation of Jesse

           15        Prince, that Mr. Miscavige in any way, shape or form

           16        ordered the death of Lisa McPherson.  That -- there

           17        is none of that and I said take it out.

           18             However, as far as this -- what I consider to

           19        be a rather ridiculous motive, there is evidence in

           20        the record where they can pursue that if they want

           21        to.  There is also evidence in the record, quite a

           22        bit of evidence in the record, that suggests that

           23        this was indeed reported up-line and indeed people

           24        up-line were making decisions.  Now that can very

           25        well be litigated.  I have not removed that from


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                                                                         70

            1        this case, and quite frankly there's evidence of it.

            2        There's evidence against it.  That's what trials are

            3        all about.

            4             MR. HERTZBERG:  Your Honor, I'm going to move

            5        on.  I just want to -- I want to reiterate,

            6        though --

            7             THE COURT:  Talk to me a little bit about

            8        laches.  Why did you wait so long to file this?

            9             MR. HERTZBERG:  Well, we didn't.  In the

           10        general scheme of things we did not.

           11             THE COURT:  Okay.

           12             MR. HERTZBERG:  And I just want, as a point of

           13        departure for -- for -- for that, I want to bring

           14        your attention to Exhibit A to our motion --

           15             THE COURT:  All right.

           16             MR. HERTZBERG:  -- and page 999.

           17             It's ironic, Mr. Dandar is complaining to this

           18        court in May of this year, at lines 14 through 17,

           19        "But I'll also tell you that RentClub case they cite

           20        over and over again has been superseded."  And then

           21        he refers to the HCA Management, which is actually

           22        HBA Management case.  Which we distinguish at

           23        footnote 1 of our brief.

           24             But here is Mr. Dandar complaining to the court

           25        about our citing RentClub over and over again.


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            1             And the context for that, your Honor, is from

            2        the very -- virtually the inception of the time that

            3        Mr. Prince filed an affidavit in this case, shortly

            4        thereafter we began to complain that he was a paid

            5        fact witness.  And you know, we've been focusing

            6        almost exclusively, and in fact exclusively during

            7        this argument, on the confidentiality portion of the

            8        RentClub decision.

            9             There are two separate prongs for Judge

           10        Kovakevitch's decision, either of which are grounds

           11        for the disqualification which we seek by our

           12        motion.  And the other is the appearance of

           13        impropriety that arises from the payment of a fact

           14        witness, and we maintain that Mr. Prince is a fact

           15        witness.  There is no dispute with the fundamental

           16        precepts that underpin our argument in our brief, in

           17        their reply.  They don't dispute the payments which

           18        are cataloged in excruciating detail in the

           19        ancillary motion based on the Golden Door case --

           20             THE COURT:  And previously you filed a motion,

           21        if I remember correctly, to disqualify Mr. Prince on

           22        the basis that he was a paid fact witness, is

           23        that --

           24             MR. HERTZBERG:  That's correct, we did.

           25             THE COURT:  -- true?  So --


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            1             MR. HERTZBERG:  And he was withdrawn -- for a

            2        large period of time he was withdrawn as a witness

            3        entirely.  We don't believe there are any -- there's

            4        laches.  We started -- we started --

            5             THE COURT:  Well, let me ask you, because this

            6        concerns me --

            7             MR. HERTZBERG:  Sure.

            8             THE COURT:  -- have you, before you filed the

            9        present motion, filed a motion to disqualify

           10        counsel -- which is what I am looking at for

           11        laches -- to disqualify counsel based on this issue

           12        prior to the time you filed your motion?

           13             MR. HERTZBERG:  No.

           14             THE COURT:  Yes, you have filed a lot of

           15        stuff --

           16             MR. HERTZBERG:  No.

           17             THE COURT:  -- by Jesse Prince and paid fact

           18        witness.

           19             MR. HERTZBERG:  We didn't, your Honor, and --

           20             THE COURT:  Why not?

           21             MR. HERTZBERG:  Because what really brought

           22        this home and triggered this and gave us what we

           23        believe is a solid foundation, more solid in our

           24        belief than apparently in yours, was the testimony

           25        of Mr. Dandar during the course of the omnibus


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            1        hearing; that this is -- this motivated him to a

            2        point to where he bragged to -- to his client, "I

            3        got the guy who hired the lawyers, who dealt with

            4        them, who ran the litigation, who knows everything

            5        about their litigation."  That came out this summer,

            6        your Honor.

            7             THE COURT:  So if I read your RentClub

            8        motion -- and I haven't read it in some time because

            9        I don't think it's been called for hearing, maybe it

           10        has -- your RentClub motion regarding Mr. Prince

           11        being disqualified because he was a paid fact

           12        witness -- I'm not going to see any of this stuff.

           13        I'm not going to see any of this stuff about how he

           14        was giving confidential information to the lawyers

           15        or anything like that.  That just became clear.

           16             MR. HERTZBERG:  I'm sorry.  I'm not

           17        understanding your Honor's question.

           18             THE COURT:  Okay.

           19             MR. HERTZBERG:  I'm sorry.

           20             THE COURT:  I -- I think Mr. Dandar has raised

           21        two issues; one is substantive and one is laches --

           22             MR. HERTZBERG:  Right.

           23             THE COURT:  -- which is that you waited till

           24        the eve of trial and you filed this motion to

           25        disqualify knowing, full well whatever ruling I


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            1        make, if I rule against you, you take a motion, you

            2        take a writ of certiorari, which is the only way to

            3        do a disqualification, and that becomes one that

            4        must be heard before trial.

            5             Therefore, as matter of course, if you -- if

            6        you lose this motion, you will have this trial

            7        continued.  No question about it.  Because there's

            8        no way, there is absolutely no way the district

            9        court of appeal is going to be able to decide this

           10        prior to the scheduled trial date.

           11             So he's saying he's prejudiced once again; this

           12        thing's been set for trial umpteen million times,

           13        and you have never raised a disqualification motion

           14        on RentClub.  Forget the omnibus motion for the

           15        moment.  That may be something you might want to

           16        think about.

           17             However, on the RentClub issue, you haven't

           18        raised disqualification till the eve of trial,

           19        knowing full well, if you win, he has to take an

           20        appeal if he wants to stay on the case; if you lose,

           21        you will take an appeal, either of which will

           22        postpone this trial once again.  Which he has always

           23        maintained you've wanted to do, postpone it ad

           24        infinitum.  He has always wanted to get it to trial.

           25             That's the issues that he -- that's the


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            1        position he takes.

            2             So my question is why didn't you file this

            3        motion to disqualify; why didn't you file it when

            4        you filed the omnibus motion so that we could have

            5        asked Mr. Prince --

            6             MR. HERTZBERG:  The omnibus motion preceded --

            7             I understand your Honor's question.

            8             First let me make a categorical statement as an

            9        officer of the court.  We did not file this motion

           10        as a ploy to defer the trial.  I am telling you that

           11        as an officer of the court.  Admitted under -- under

           12        the grace of this court, as I have been in courts

           13        around this country, and I'm in good standing

           14        everywhere.  And your Honor, I am telling you this

           15        is --

           16             THE COURT:  Well, I've never seen --

           17             MR. HERTZBERG:  -- the scenario that you are

           18        describing is nothing that occurred to us or -- and

           19        is -- definitely was not a motivation for the time

           20        of the filing of this.

           21             THE COURT:  I understand that.

           22             MR. HERTZBERG:  And --

           23             THE COURT:  I understand that all the lawyers

           24        in this case stand up and say how that they're in

           25        good standing, and yet I understand that you've


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            1        accused Mr. Dandar of perjury and suborning perjury.

            2        I understand Mr. Dandar has accused you and the

            3        lawyers of the church of extortion and blackmail.

            4        It has not been pretty in this case.  Therefore, I

            5        don't expect just because you say something for

            6        Mr. Dandar to agree with you.  I certainly don't

            7        expect when he says something for you to agree with

            8        him.  It has never happened.  I believe one time in

            9        this whole case since I've been in it both sides

           10        have agreed with each -- I mean, I can't even get a

           11        simple order signed very often without a huge

           12        dispute.

           13             So I appreciate what you're saying.  I don't

           14        expect Mr. Dandar will necessarily agree.

           15             He is saying and has said in his pleading this

           16        late file is a huge prejudice to him.

           17             MR. HERTZBERG:  Right.

           18             THE COURT:  The reason being it's going to

           19        continue the trial.

           20             MR. HERTZBERG:  Well, I have further answers.

           21        I -- I said that I was going to initially make a

           22        representation as an officer of the court.

           23             THE COURT:  And I accept that as an officer --

           24             MR. HERTZBERG:  Well, I want to go beyond that.

           25             THE COURT:  And I accept his as an officer of


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            1        the court.

            2             MR. HERTZBERG:  All right.

            3             THE COURT:  And his will be different --

            4             MR. HERTZBERG:  Your Honor, the fact is that

            5        the testimony --

            6             THE COURT:  And you know, you interrupt, you

            7        interrupt me and interrupt me.  The truth of the

            8        matter is, have you ever been to an appellate

            9        argument where you never got to say a word, where

           10        the judges ask all the questions and when your time

           11        is up they said sit down?  If you, haven't you

           12        haven't lived.  So stop interrupting me when I'm

           13        asking you questions.

           14             MR. HERTZBERG:  I apologize, your Honor.

           15             THE COURT:  And you know what, I was going to

           16        give you more time, but you've just interrupted me

           17        for the last time.  You've been going on for 35

           18        minutes, and because apparently you don't care about

           19        my questions and you don't want to answer my

           20        questions, your time is up.  Thank you, Counsel.

           21             Mr. Dandar?

           22             MR. LIROT:  May it please the court, your

           23        Honor --

           24             THE COURT:  Mr. Lirot.

           25             MR. LIROT:  -- I'd like to respond to this


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            1        argument.

            2             THE COURT:  And by the way, it's 25 minutes

            3        till 12.  And after I asked my initials questions, I

            4        looked at the clock and it was five minutes after

            5        12.  So it's been 30 minutes.  You're starting, and

            6        if there's something I want to know right off the

            7        bat, which there will be, your clock is starting and

            8        you're going to get a half an hour.  Go ahead.

            9             MR. LIROT:  Excellent.

           10             Judge, there comes a point when I think that

           11        the defendant's continuous attempt to take

           12        diametrically opposed positions throughout the

           13        history of this case should result in a denial of

           14        the relief that they request.  And candidly, Judge,

           15        I think that to start off with the last issue

           16        discussed, I'm going to track Mr. Dandar's response

           17        in opposition to their motion to disqualify.  He

           18        starts off by saying Jesse Prince never disclosed

           19        any attorney-client privileged communications and

           20        work product, trade secrets or proprietary

           21        information of the church.

           22             Now, you've already given me every reason to

           23        believe that you've read the RentClub case and you

           24        understand that RentClub does not follow Florida

           25        law.  It makes some -- some unique observations, and


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            1        obviously in that case it was found that the -- the

            2        knowledge that was gained by the hiring of an

            3        individual that was part of an organization during

            4        the pendency of litigation -- they hired this guy

            5        after the case had already been filed, and he became

            6        their expert witness I think five days after he left

            7        the adversary's employ.

            8             Judge, in this case --

            9             THE COURT:  But he was employed by the

           10        adversary at the time this was all going on.

           11        Whatever was going on, he was an employee of the

           12        defendant, or of the plaintiff, or whatever it was,

           13        was he not?

           14             MR. LIROT:  That's exactly correct.

           15             THE COURT:  Right, quite different from how

           16        many years past in this case?

           17             MR. LIROT:  Well, Judge, we --

           18             THE COURT:  At best, the one admission we did

           19        get was 1987, I believe, was the last time that

           20        Mr. Prince had any executive position.  And this

           21        case could not have occurred until Lisa McPherson

           22        died, which would have been 1995.  I think it was --

           23        it was --

           24             MR. LIROT:  That's exactly correct.

           25             THE COURT:  -- 1997 or something like that.


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            1             MR. LIROT:  That's exactly correct.

            2             THE COURT:  And when did Mr. Prince come on the

            3        scene?

            4             MR. DANDAR:  December of '98.

            5             MR. LIROT:  December --

            6             THE COURT:  When was this -- when was this --

            7        this apparently -- this meeting in Key West?

            8             MR. DANDAR:  July, '99.

            9             THE COURT:  Okay.  So I believe I heard the

           10        church lawyer indicate that the -- the date,

           11        apparently as far as they know, that Mr. Prince

           12        first came on the scene was '99.  Now for laches

           13        purposes, what we need to look at is when was the

           14        first time they became aware of the fact that

           15        Mr. Prince was being used as an expert witness or he

           16        was being used as a fact witness.  They clearly knew

           17        what his position was; they clearly knew whether or

           18        not he was subject to confidential information.  And

           19        the law seems to suggest that once they know that

           20        they have an obligation to present their motion and

           21        not delay it.

           22             So I would ask you when was it either, A, that

           23        Mr. Prince filed his affidavit or, B, when was it

           24        that the first request to let Mr. Prince examine the

           25        PC folders of Lisa McPherson was filed.  What month


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            1        and year, if you can tell me that?

            2             MR. DANDAR:  December, '98.

            3             MR. LIROT:  It was December of 1998, your

            4        Honor.

            5             THE COURT:  So as of December, 1998 it is your

            6        position that the church was well aware that Prince

            7        had been hired; they knew who he was; they knew what

            8        confidential information he had about this case and

            9        they could have filed their motion.  Is that in

           10        essence, sum and substance the laches part of this?

           11             MR. LIROT:  It is, your Honor, and I think that

           12        with much more specificity, if you have Mr. Dandar's

           13        motion on page 7 of that pleading, we go through

           14        chapter and verse of whether or not the church knew

           15        in 1998.  Clearly there are pleadings that arise as

           16        of August of 1999 --

           17             THE COURT:  When did he file his affidavit, the

           18        affidavit that they say is a fact affidavit?

           19             MR. LIROT:  It was September of 1999, Judge.

           20             THE COURT:  So clearly as of that date if they

           21        didn't understand before what was going on, they had

           22        the affidavit in hand of Jesse Prince which accused

           23        David Miscavige, as I recall, of -- of murdering

           24        Lisa McPherson, or whatever, end cycle and all that

           25        sort of stuff, which gave rise to the fifth amended


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            1        complaint.

            2             MR. LIROT:  Understood, Judge.

            3             THE COURT:  December of '99, is that it?

            4             MR. DANDAR:  No.

            5             THE COURT:  September of '99?

            6             MR. DANDAR:  September.

            7             MR. LIROT:  September, 1999, Judge.

            8             THE COURT:  What happened in December of '98?

            9             MR. DANDAR:  Examination of the PC folders of

           10        Lisa McPherson.

           11             THE COURT:  And I take it that you filed some

           12        sort of a motion?

           13             MR. DANDAR:  Motion, order, hearing; they were

           14        present watching Mr. Prince and Stacy Brooks

           15        examine --

           16             THE COURT:  What did you say about it?  I mean

           17        did you make it real clear that he was your expert

           18        witness on this PC folder?

           19             MR. DANDAR:  He was a -- no.  Not expert.  I

           20        did not use the word "expert."  But he was --

           21             THE COURT:  Consultant.

           22             MR. DANDAR:  He was a consultant reviewing the

           23        PC folders.

           24             THE COURT:  Okay.  Were they present when

           25        you -- I mean is there any question that they knew


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            1        that as of December of '98, that --

            2             MR. DANDAR:  Yes, there was a --

            3             THE COURT:  -- you were using Jesse Prince?

            4             MR. DANDAR:  There was a hearing about it, and

            5        I'm -- there could have been -- even have been an

            6        appeal of the order.  There's so many appeals, I get

            7        lost.

            8             But Jesse Prince -- Len Stylo, their

            9        representative who signs the answers to

           10        interrogatories early on in the case, I believe he's

           11        from OSA, he was present in my office.  He -- when

           12        the PC folders were being looked at, the

           13        originals --

           14             THE COURT:  I don't care about that date,

           15        Mr. Dandar.  The date that I care about is when was

           16        it that you made your request to allow Jesse Prince,

           17        their previous employee, that they say was in an

           18        executive position and had confidential information

           19        that should not have been revealed to you, they now

           20        know you've got him in your employ, when you file

           21        your motion I guess saying Jesse Prince is my expert

           22        or my something to look at these PC folders.

           23        What --

           24             MR. DANDAR:  That would have been in November

           25        of '98.  He looked at them in December of '98.


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            1             THE COURT:  All right.  So in November of '98

            2        the church knew this could be dangerous.

            3             MR. DANDAR:  Yes.

            4             THE COURT:  And they waited until when to file

            5        this?

            6             MR. DANDAR:  September of 2002.

            7             THE COURT:  Okay.  And your argument is that's

            8        too late.

            9             MR. DANDAR:  Way too late.

           10             THE COURT:  All right.  I understand that

           11        argument.  I'll make a ruling on it.  And I

           12        understand the church's position is they didn't know

           13        the extent to which you were going to use him until

           14        they heard your own testimony about you were going

           15        to use him because he knew strategies and trial

           16        strategies -- you did say that, didn't you?

           17             Mr. Lirot, I guess I should be addressing you.

           18        You're the lawyer here arguing this motion.  Mr. --

           19             MR. LIROT:  Judge, I think, if you look at the

           20        deposition transcripts and whatever concerns they

           21        would have had with Mr. Prince --

           22             THE COURT:  No, no, no, we're past that.  We're

           23        talking about laches, and then I'm going to get you

           24        get to the rest of your motion.

           25             On laches, their argument is the reason why


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            1        they didn't file the RentClub motion to disqualify

            2        counsel is because they didn't realize the extent to

            3        which Mr. Dandar even went to tell his client what

            4        he was really using him for until the omnibus

            5        hearing, and at the omnibus hearing they quote

            6        Mr. Dandar and they quote what he says and what he

            7        was telling his client.  What tab was that,

            8        Counselor?

            9             MR. HERTZBERG:  Tab B, your Honor.

           10             THE COURT:  Tab B.

           11             And it is where Mr. Dandar is saying in his

           12        testimony, "So that's when I made a decision to

           13        contact my client, Dell Liebreich, and I said, look,

           14        I have Jesse Prince here, I told him all about --

           15        told her all about Jesse Prince."  And then you go

           16        down to the next thing they've highlighted, "And

           17        this person was in charge of litigation previously,

           18        years ago for the Church of Scientology, went around

           19        the world hiring law firms.  He went around telling

           20        them how to conduct their litigation."

           21             So what they're stating is that and perhaps

           22        other things in here that I maybe haven't read, "And

           23        that's when he came up and told me he was the number

           24        two worldwide in the Scientology hierarchy of

           25        executives.  He was an executive officer -- I'm


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            1        forgetting what officer, what position -- of the

            2        RTC, which is corporately --"  I don't know what

            3        that has to do with anything.  But the other thing

            4        that I read to you.

            5             That's when they realized that Mr. Dandar was

            6        hiring him exactly for why they think he shouldn't

            7        have hired him, which was to tell him how to conduct

            8        litigation because he had that insider information

            9        when he worked for RTC and was around their lawyers.

           10        That's why they were late.

           11             What do you want to say to that?

           12             MR. LIROT:  Judge, that -- that just doesn't

           13        ring true based on the deposition testimony.  They

           14        took Mr. Prince's deposition far in advance of that,

           15        and they asked him who he had worked with and what

           16        he had done, and basically --

           17             THE COURT:  When did they take it?  Can you

           18        tell me that?

           19             MR. LIROT:  It was in 1999, Judge.  And I

           20        believe that there is actually an excerpt.  And this

           21        was the -- actually the church's supplemental

           22        filing -- give me just a second, Judge.  Let me find

           23        it here.  Just -- again, just looking at the page,

           24        it's on page 683 of this deposition from -- well --

           25             THE COURT:  Apparently he was deposed at least


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                                                                         87

            1        in part November 17th and 18th of '99.

            2             MR. LIROT:  '99.  That's it, Judge.

            3             THE COURT:  Okay.

            4             MR. LIROT:  So I mean, clearly that --

            5             THE COURT:  That's where he says you discussed

            6        strategy with Mr. Hertzberg; you discussed strategy

            7        with -- you discussed strategy about pending case

            8        with Eric Lieberman; you discussed strategy of

            9        pending cases with Earle Cooley.  Name some of the

           10        other lawyers you discussed strategy with.  And he

           11        goes on to talk about Mr. Hertzberg and others.

           12             Does it say in here anywhere whether or not he

           13        discussed those strategies with Mr. Dandar?

           14             MR. LIROT:  If it did I would trust our

           15        opponents to have included that excerpt.

           16             THE COURT:  Well, I wouldn't necessarily,

           17        because that would kind of defeat your laches -- I

           18        mean, this is such a two-edged sword; this is such a

           19        fine line.

           20             And when I say not necessarily, I'm not saying

           21        anything unkind.  The church is walking an extremely

           22        fine line in this RentClub motion.  I don't know if

           23        they're aware of it, but I suspect they are.

           24        Because they want to take one position and then they

           25        want to take another position here.  They don't want


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            1        to file an affidavit, I know that.  They certainly

            2        don't want to admit that RTC and Flag are in any way

            3        related.  They have always taken the position that

            4        they're separate.

            5             But nonetheless, it's very important to every

            6        single case they discuss here that Jesse Prince is

            7        an employee of the party.  And of course, RTC is not

            8        a party, by virtue of their request to get them out.

            9        So they are not a party; they fought bringing them

           10        in as a party; they prevailed in not allowing them

           11        to be brought in as a party; they sued to assess

           12        damages.  And all this time it's been that RTC is

           13        separate.

           14             Well, if that's true, that Jesse Prince was an

           15        employee of RTC, then all these cases really have

           16        very little to do with this, seems to me.  So I

           17        guess then what they have to say, that doesn't

           18        matter -- that's what they've said -- because he had

           19        confidential information which related somehow to

           20        the Lisa McPherson case.

           21             And what's the best they've come up with?

           22        'Cause they're not going to file an affidavit

           23        telling us that Mr. Prince is a high-and-mighty with

           24        all kinds of great information, because they've said

           25        so many other times that he is not and does not, and


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            1        they want to be able to attack him without any

            2        question, in the event you call him as your expert

            3        witness.  Which I've indicated I will allow you to

            4        do, but don't believe in a million years you will.

            5             So that's the fine line they're working.

            6             So what they're squawking, what they're saying,

            7        is that he has strategy that he shared with you all.

            8        So the problem is, of course, the strategy, it seems

            9        like, came out in his deposition in 1999.  So

           10        they're still a little late in filing this, I guess

           11        is your position.

           12             MR. LIROT:  It is, Judge.  And one of the

           13        things that caused us concern is that we seem to

           14        have this shifting description of RTC as what is

           15        today this blanket protector of the ecclesiastical

           16        beliefs of the church; earlier on they were simply

           17        there to protect trademark and copyright issues --

           18             THE COURT:  What I remember, at least certainly

           19        in part, and in large part and in important part,

           20        but I don't doubt that RTC has something that it

           21        does beyond that, although perhaps it -- they have

           22        alleged before it doesn't.  I really don't know

           23        because I never paid much attention to RTC.  I

           24        believed them when they said it was not related to

           25        Flag, it was a totally separate corporation.  Judge


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            1        Moody apparently found that it was.  That had been

            2        their position right along until now.

            3             And so you know, somebody's going to have to

            4        help me to understand that.

            5             And Mr. Hertzberg's done the best he can by

            6        telling me, I guess, that Ms. Yingling will provide

            7        an affidavit, although she certainly didn't provide

            8        one here, and you would have thought Mr. Hertzberg

            9        might have known that would be a question, but my

           10        first question out of my mouth.

           11             But go on ahead.

           12             So the laches argument, I understand.  I'll

           13        rule on it.  I understand the positions of the

           14        various sides.  And I -- I'll ferret that out and

           15        make a decision.

           16             MR. LIROT:  Very good, Judge.  I won't take any

           17        more time, but I -- we've listed all the factual

           18        assertions that support that argument.

           19             To get into the case law and why we --

           20             THE COURT:  Tell me why I shouldn't follow the

           21        RentClub case.  I've read all these cases.  I've

           22        read some cases that you've submitted and I've read

           23        some you haven't submitted.  And quite frankly, I'm

           24        pretty comfortable with what the test is in Florida.

           25             I think that the test in Florida is that they


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            1        have to -- it's their burden; it's their burden to

            2        come forward and tell us that there's confidential

            3        information.  They have -- they can't do it in

            4        generalities; they can't have some lawyer stand up

            5        here and say it.  They have to file an affidavit.

            6        You can then file a contrary affidavit, in which

            7        case we're going to have an evidentiary hearing and

            8        I'm going to resolve issues of fact.  They haven't

            9        even asked me to do that.  They don't have an

           10        affidavit, therefore I'm afraid they're going to

           11        fail bitterly in their burden of proof.  And the

           12        burden of proof is indeed theirs pursuant to Florida

           13        law.

           14             MR. LIROT:  That's correct, Judge.

           15             THE COURT:  You would agree with that.

           16             MR. LIROT:  Absolutely.

           17             THE COURT:  All right.  But there is this case

           18        of RentClub, which is Judge Kovakevitch.

           19             Who, by the way, is a district judge, trial

           20        judge, just like me.  As far as I know, I'm not

           21        bound by anything Judge Kovakevitch does.  I've

           22        never been told by the Florida Supreme Court or any

           23        district court that I am bound by anything Judge

           24        Kovakevitch rules.  She's a trial judge in a

           25        different forum.


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            1             The 11th Circuit, of course, as they're

            2        required to do, take a petition for cert, just like

            3        whoever loses this one the appellate court is going

            4        to do.  It's an abuse of discretion review.  The

            5        11th Circuit case is clear as a bell.  It's short,

            6        to the point, and what they said, they can't find,

            7        based on the record, that Judge Kovakevitch abused

            8        her discretion.  That's all the 11th Circuit case

            9        stands for.

           10             So the real question is, am I obliged to follow

           11        Judge Kovakevitch's ruling or is that -- is that one

           12        of those cases that can be persuasive or otherwise?

           13        I suggest unless the church can find me some case

           14        that says it's binding on me, that it isn't.  It's

           15        persuasive only.

           16             What is binding on me, however, are cases out

           17        of Florida district courts; in particular, the case

           18        that seems to me to be on the money here, as close

           19        as anything that I could find, which is the Carnival

           20        case out of the Fifth District, which distinguishes

           21        RentClub, sets out some facts that would seem to be

           22        somewhat similar and seems to set the standard,

           23        seems to set the standard.  There are differences,

           24        and granted I'll have to deal with those

           25        differences.


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            1             Counsel elected not to deal with the Florida

            2        case; to deal with the RentClub case.  There's

            3        nothing in their brief about these Florida cases so

            4        there'll be nothing to help me.  So I'm going to

            5        have to once again do it myself.

            6             But in this case, there was an affidavit filed

            7        by Carnival to begin the motion, and the affidavit

            8        stated what the employees did and what the employees

            9        knew.  And I think that as I -- as I read this case,

           10        it -- for example, says here -- distinguishes

           11        RentClub, completely distinguishes RentClub.

           12             And it says, "The burden of establishing the

           13        existence of the attorney-client privilege rests on

           14        the party asserting in the privilege."  So I'm bound

           15        by that.  Doesn't matter what Judge Kovakevitch

           16        said; it doesn't matter that she looked at claims or

           17        anything of the sort.  It says the burden is on the

           18        party.  And thus far all we have is a lawyer who

           19        says there was a conflict.  Nothing, no affidavit,

           20        and no suggestion of what it is; no suggestion how

           21        to tell me in camera so that you don't know about

           22        it.  Although you must know about it, because they

           23        suggest that Mr. Prince would have told you about

           24        it.

           25             Go ahead.  Keep going.


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            1             MR. LIROT:  Well, Judge, I think in our --

            2             THE COURT:  Is that your argument, that this

            3        Carnival case and the Second DCA case are binding on

            4        me?

            5             MR. LIROT:  Absolutely, Judge.  No question

            6        about it.

            7             THE COURT:  Okay.

            8             MR. LIROT:  And then again, Carnival's decided

            9        six years after RentClub federal decisions.  And I

           10        think one of the things that we haven't mentioned is

           11        that there was a significant change in the ethical

           12        rules that the court is to look to.

           13             And I think one of the later cases that we

           14        cited goes through a rather -- I think a pretty

           15        succinct analysis of that; that when RentClub was

           16        decided you're working under canon 9, and that

           17        before there was simply a presumption of

           18        impropriety.  And that these later cases actually

           19        asked the court to look at the evidence to show that

           20        the other side has gained some sort of unfair

           21        advantage, and no, you can't simply get by by making

           22        these general assertions of some sort of conflict

           23        being created.

           24             The court's got to be apprised of the facts

           25        that create a material impropriety.  There's got be


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            1        some kind of material and relevant knowledge that's

            2        been imparted from the individual who's been

            3        asserted as having this confidential information.

            4        And not only that, they have to show that it creates

            5        an unfair advantage.

            6             And we don't have anything to go by.  I don't

            7        know what to respond to because we don't have any

            8        specifics other than this guy, contrary to what

            9        was -- was -- was told us before, he wasn't just a

           10        janitor.  He talked to lawyers from all over the

           11        world.  Well, you know, what is it that he talked

           12        about to make these copyright cases or any other

           13        ecclesiastical case bear any similarity to the

           14        wrongful death cases before this court at this

           15        point.

           16             THE COURT:  I think what they're saying is it's

           17        trial strategy; it was the best they've come up

           18        with.  It isn't just the lawyers.  The best the

           19        lawyers come up with is that Mr. Prince, through his

           20        own testimony, is aware of trial strategy.  I don't

           21        know what trial strategy.  They don't want to tell

           22        me.  But some trial strategy.

           23             Now I take it I take it -- I take it -- and I'm

           24        guessing this from other things that I've heard the

           25        church say on numerous occasions -- this trial


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            1        strategy being join David Miscavige and it'll bring

            2        you a settlement.  That's what I think they might be

            3        talking about; I have heard this said before.  They

            4        can get David Miscavige -- not them, but this is

            5        what the philosophy is of these antilitigation

            6        lawyers.  You can join David Miscavige, the church

            7        will settle, they don't want him deposed, they don't

            8        want this and that and the other thing.  So the

            9        strategy is --

           10             But of course every lawyer doing

           11        anti-Scientology litigation would know that, so I

           12        can't imagine that that's anything that Jesse Prince

           13        would have added to this mix that wasn't already

           14        quite well known.

           15             So I don't know beyond that.  That's the only

           16        thing I can think of.  But I guess what you're

           17        saying is some sort of trial strategy.

           18             MR. LIROT:  We don't know what that could be,

           19        Judge.

           20             THE COURT:  Can you respond to that general,

           21        broad category of trial strategy?

           22             MR. LIROT:  Well, Judge, candidly, somebody

           23        they allege is a janitor in 1987 cannot bring

           24        anything to the table as far as trial strategy; plus

           25        he's not counsel, he's not a party.  He's a guy


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            1        that's -- that's there, at best, maybe supervising

            2        issues involving copyright.  I think when we saw the

            3        videotape when he had his uniform on talking about

            4        being able to ferret out squirrel groups or people

            5        that I think have engaged in the unauthorized

            6        practice of Scientology, that's really what he's

            7        focused on.

            8             There's nothing about that other than what we

            9        certainly perceived as the trial strategy of our

           10        opponents with the late filing of motions like this.

           11        There's nothing there that even in any way would be

           12        any kind of confidential information.  They make us

           13        work hard.  That's about all he's able to tell us,

           14        other than whatever he brought to the table on

           15        issues that are no longer part of this case.

           16             The issue with Mr. Miscavige and anything about

           17        Mr. Dandar's intent to make this case perhaps more

           18        susceptible to settlement by adding parties --

           19             THE COURT:  Well --

           20             MR. LIROT:  -- all those allegations are

           21        meaningless at this point.

           22             THE COURT:  Don't forget, Counselor, that I've

           23        ruled -- and I told you all this orally, and I'm

           24        getting ready to do an order on it -- that -- that

           25        in fact the addition of David Miscavige did come


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            1        about from Jesse Prince and Jesse Prince's

            2        affidavit.  There was more than that to it, which is

            3        why I said it wasn't a sham pleading.  You had

            4        Vaughn Young; you had Stacy Brooks, who even

            5        admitted in this hearing that we had that she sort

            6        of thought that perhaps those were some ideas.  And

            7        if she even thought it when she was trying her very

            8        best to recant from her testimony.  I'm sure she was

            9        a little more stringent about it when she was

           10        talking with Mr. Dandar when she was his consultant.

           11             So for those reasons I'm not willing to say

           12        that Mr. Dandar should have realized that Mr. Prince

           13        didn't have a clue except for what I consider to be

           14        the sort of wild speculation.  Because others

           15        apparently were wildly speculating in the same vein.

           16        And there's three folks, three insider folks, who

           17        supposedly knew something, and as it turns out they

           18        really didn't.  At least Mr. Prince can't put his

           19        finger on any fact.

           20             MR. LIROT:  Judge, I think Ms. Brooks was the

           21        primary proponent of that --

           22             THE COURT:  She was.  There's no question about

           23        it.  She was.  But she didn't file an affidavit or

           24        anything, but she absolutely was.

           25             MR. LIROT:  It's clear on this record.


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            1             THE COURT:  So -- so maybe what they're saying

            2        is she had a high position too.  I don't know.  See,

            3        I'm having a hard time saying what it was, but I

            4        think it was trial strategy, add Miscavige.  I don't

            5        know of any other trial strategy.

            6             Can you -- I guess what I'm asking you is can

            7        you respond to their allegation in the general

            8        sense -- this case is not about specifics, but it's

            9        a generality -- can you respond to the general

           10        allegation that you've heard here today or that you

           11        see raised in their motion?

           12             They're relying on the fact, and they've said

           13        it here today, that I should, when I look, not look

           14        to an affidavit prepared by them telling me what is

           15        confidential and what therefore may have been

           16        revealed.  What they are saying I should look to is

           17        what Mr. Prince has said and what Mr. Dandar has

           18        said.  And their authority for that is RentClub.

           19             And I don't discount RentClub.  I mean, I know

           20        Judge Kovakevitch very well.  She's a dear lady,

           21        fine judge, and I'm most happy to read her opinions

           22        and follow them if they're not totally obscured by

           23        Florida law.  Which nobody in Florida has filed a

           24        RentClub.  And of course, the circuit courts of

           25        appeal haven't either, when you get into researching


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            1        this, you'll find.

            2             However, Judge Kovakevitch did seem to talk

            3        about claims and the claims being what was being

            4        claimed by the employees.

            5             MR. LIROT:  Correct.

            6             THE COURT:  So that is their position.  And I

            7        understand that position.  And that is the position

            8        Judge Kovakevitch took.

            9             So how do you respond to that?  Just that

           10        Florida law doesn't seem to do that; or what is your

           11        response?

           12             MR. LIROT:  Well, I think most of the Florida

           13        decisions, Judge --

           14             And if I could just put those on the record,

           15        the authorities that we're relying on, I think it

           16        would be important.

           17             You obviously recognize the case of Carnival

           18        Corporation versus Ramero.  That's 710 So.2d 690, a

           19        Fifth DCA case from 1998.  That talks about the

           20        distinction with Rent Club as far as the using, you

           21        know, nonattorney employees that were not part of

           22        the claim.  They weren't privy to any confidential

           23        information about a case that was already in

           24        process.

           25             Judge, the other case that we'd cite --


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            1             THE COURT:  You don't have to tell me what

            2        these cases say because I dare say you're not going

            3        to give me one that I haven't read and I don't know

            4        what it stands for.  And whatever it is I do here

            5        somebody's apt to take an appeal and you can put it

            6        in your brief.

            7             MR. LIROT:  Fair enough, Judge.  And I'll --

            8             THE COURT:  And I'll give the clerk the -- give

            9        her the citation, but you don't have to tell me what

           10        they stand for.

           11             MR. LIROT:  All right.  Can I just get these on

           12        the record?

           13             THE COURT:  Yes.

           14             MR. LIROT:  Esquire Care versus Maguire, 532

           15        So.2d 740.  That's a 1988 case.

           16             The HBA Management case which was the Florida

           17        Supreme Court case that was cited by Mr. Hertzberg

           18        and I think supports our position more, 693 So.2d

           19        541, 1997 case.

           20             Stewart versus BeeDee Neon Signs, a 2000 case

           21        from the first DCA, 751 So.2d 196.

           22             And Judge, the one that we talked about, I

           23        think with the secretary that you might have

           24        mentioned, was Lackow versus Heller at 466 So.2d

           25        1120, a Third DCA case.


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            1             Judge, what these cases talk about is, the

            2        burden's on them to give us something specific to

            3        respond to, and there either has to be some

            4        knowledge of that specific case or some knowledge of

            5        a case that has such great similarities as far as

            6        the claims.  I think the Carnival cases you've got

            7        people that are -- that are suffering some mishap on

            8        a cruise line.  So you can see where there might

            9        be -- possibility there might be some repetition of

           10        similar claims, so there might be some repetition of

           11        similar strategies.

           12             The Lisa McPherson case is nothing and there

           13        has been no case that we could even speculate on

           14        that would be anywhere similar in the early '80s

           15        that Mr. Prince would have ever had any information

           16        on.  This is a very unique case, Judge.  I think

           17        that's something I don't even need to stress to this

           18        court.

           19             But as far as the similarity of claims or

           20        anything that Mr. Prince would do to give us any

           21        kind of unfair advantage, I think that's really the

           22        critical analysis.  There's nothing that could come

           23        to mind, and I would certainly submit there's

           24        nothing that the defendants could possibly offer

           25        this court to show that anything he knew had any


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            1        basis to give us an unfair advantage on the analysis

            2        or legal strategy of a similar claim.

            3             THE COURT:  How do you respond to their

            4        argument that K.A.W. -- I can't remember the first

            5        part of it, but K.A.W., which is a Florida Supreme

            6        Court case, talks about even though the canons did

            7        away with the appearance of impropriety, as far as

            8        disqualification is concerned that is still a test.

            9             MR. LIROT:  The appearance of impropriety test,

           10        though, is backed up by the evidentiary analysis.

           11        The appearance creates a presumption.  But they've

           12        got to carry their burden to support that

           13        presumption, and if they don't, we don't have to do

           14        anything to rebut.

           15             Now, if -- I think the later cases talk about

           16        the different situations; hiring a secretary from a

           17        law firm or getting an employee that's already been

           18        working on similar issues.  I understand that

           19        analysis.  But here you're talking about a guy that

           20        hasn't been there for well over 10 years.  I just

           21        don't think --

           22             THE COURT:  Yeah.  But does it matter?  If

           23        somebody's privy to confidential information -- and

           24        one thing we do not address, although it's part of

           25        the information that is filed by the church, and I


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            1        will accept it as such, was that Mr. Prince did sign

            2        a document, and it certainly is a lot more than a

            3        confidential agreement, but it does seem to say that

            4        he's not supposedly to be revealing anything.  He's

            5        not supposed to be litigating or helping anybody to

            6        litigate.  I mean, the thing goes on and on and on.

            7             There are cases where they seem to talk about

            8        the fact that such an animal didn't exist in that

            9        case, and I guess such an animal does exist in this

           10        case.

           11             MR. LIROT:  But, Judge --

           12             THE COURT:  Now Mr. Dandar says that some judge

           13        somewhere threw it out, but I notice that he didn't

           14        give me an order.  And so I figure if he had one, he

           15        would have provided it.  He didn't have one so it

           16        must be that either there wasn't one or it wasn't

           17        exactly as he said it was.

           18             MR. HERTZBERG:  It wasn't.

           19             THE COURT:  Well, that's what I figured.

           20        Because if he'd have had one that said that it would

           21        have been real simple, then I could have just very

           22        quickly relied on that.  And so I don't have an

           23        order so that isn't proved either.

           24             MR. DANDAR:  But we do have the deposition that

           25        Sandy Rosen took of Mr. Prince.


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            1             All I have is Mr. Leipold telling me that's

            2        what happened.  They argued the agreement and --

            3             THE COURT:  Well, that's really good.  I'd go

            4        ahead and try to use that for something factual.

            5             Okay.  Tell me about this -- this -- what is --

            6             MR. LIROT:  Judge --

            7             THE COURT:  There is a document signed by

            8        Mr. Prince that seems to say -- I mean, it says what

            9        it says.

           10             MR. DANDAR:  Yes.

           11             THE COURT:  And you will agree that there are

           12        some cases that seem to say that is one of the

           13        factors the court ought to look at.

           14             MR. LIROT:  They are indeed, Judge, but that's

           15        the beginning of the analysis.  And Carnival talks

           16        about that K.A.W. case.  What they say is that if

           17        you're going to look at this from the perspective of

           18        an appearance of impropriety, you have to look at

           19        the context of, and I quote from the case, "If the

           20        representation will deprive the other party

           21        litigants of an impartial forum."  And we don't have

           22        that with Mr. Prince.

           23             Carnival looked at K.A.W. and basically

           24        elaborated on that decision and essentially said

           25        that if there's no clear showing -- there has to be


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            1        a clear showing made that what this person brings to

            2        the table or provides to the -- to the adverse party

            3        is of such critical nature that it does provide the

            4        unfair advantage.

            5             And without some specific showing, as these

            6        cases all say, you know, they've got to trigger this

            7        evidentiary hearing.  There's got to be something

            8        more there than, hey, this guy used to work for us

            9        and he might have talked to some of our lawyers in

           10        trying to do issues that truly, under anybody's

           11        assessment, don't have any similarity to this case.

           12             Judge, it doesn't just stop at that

           13        particular --

           14             THE COURT:  I guess if they prevail on this,

           15        that kind of does in Mr. Prince, doesn't it?

           16             MR. LIROT:  It would seem that it might have --

           17        it might serve both those purposes, Judge.

           18             THE COURT:  It certainly would.  This would be

           19        one way to make sure that Mr. Prince --

           20             Well, I can't say another judge would follow my

           21        ruling as precedent any more than I'm obliged to

           22        follow Judge Kovakevitch's, just a federal trial

           23        judge, just like I'm a little old state trial judge.

           24        I don't know of anything that says that I'm -- I

           25        know for a fact that I'm not obliged to follow any


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            1        other state trial judge, and I can't imagine some

            2        law out there that says I'm obliged to follow some

            3        federal trial judge either.  Certainly not that's

            4        been pointed out to me.

            5             MR. LIROT:  There is none, Judge.  In fact

            6        there's case law, and quite specifically, that says

            7        the Florida courts can disavow any federal ruling

            8        that they want to if they feel that there are more

            9        persuasive or more binding arguments from Florida

           10        state courts.  And I think the case is Miami Health

           11        Studios that specifically says that.

           12             THE COURT:  All right.  Thank you very much.

           13        Your time's up.

           14             MR. LIROT:  Thank you, Judge.

           15             THE COURT:  And this is an interesting --

           16        interesting argument.

           17             And I will tell you that I did not have a

           18        chance to finish reading all the case law till very

           19        early this morning, so that's why I was -- if I'd

           20        have known what I wanted to hear from you all

           21        earlier I'd have called you, but I figured you

           22        didn't want to hear from me at 2:00 this morning.

           23             MR. DRESCHER:  Your Honor, if I may for one

           24        moment --

           25             THE COURT:  Yes.


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            1             MR. DRESCHER:  You've been very gracious, and

            2        I'd like to ask your indulgence to speak to

            3        something I heard, as someone making a first

            4        appearance here.  Just take a couple minutes of your

            5        time, if I may do so, related to the motion.

            6             THE COURT:  You can go ahead and begin, and if

            7        I don't want to hear it, I'm going to tell you

            8        that's the end of it.

            9             MR. DRESCHER:  That's --

           10             THE COURT:  I have no idea what you want to

           11        talk about.

           12             MR. DRESCHER:  Well, here's what I'd like to

           13        try and put --

           14             THE COURT:  If it has something to do with this

           15        motion, the answer's no.

           16             MR. DRESCHER:  Okay.  It does --

           17             THE COURT:  Because you have a lawyer --

           18             MR. DRESCHER:  -- indeed have something to do

           19        with the motion, but it comes from the fact that

           20        I've represented these parties on this side of the

           21        table 15 years come next month.

           22             THE COURT:  Well --

           23             MR. DRESCHER:  And -- and I --

           24             THE COURT:  -- Mr. Hertzberg has represented

           25        them for how long?


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            1             MR. DRESCHER:  Oh, even longer.  But on the

            2        sorts of issues we're talking about here, I dare say

            3        I think I've had more experience.

            4             And I just want to put one thing in

            5        perspective:  The burden of proof that's being

            6        talked about here does not take into account that it

            7        would require, at least from what I'm hearing from

            8        Mr. Lirot, for someone on this side of the table to

            9        reveal confidences as part of a burden of proof.

           10             THE COURT:  Counsel, you're arguing this

           11        motion.  I've given both sides the same amount of

           12        time.  I have read this, I have read these cases, I

           13        am perfectly capable of deciding what the burden of

           14        proof is.  And if you don't like the ruling that I

           15        make or the burden of proof, that's what you get to

           16        take the cases to an appellate court.  The time is

           17        up.

           18             MR. DRESCHER:  I understand.

           19             THE COURT:  I gave each side a half an hour.

           20        You had a fine lawyer arguing it, and your time is

           21        up.

           22             MR. DRESCHER:  Thank you.

           23             THE COURT:  All right.

           24             MR. HERTZBERG:  May I just make one

           25        observation -- respond to one aspect of the laches


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            1        argument?  Just one?

            2             THE COURT:  Well, what do you need, five

            3        minutes or --

            4             MR. HERTZBERG:  Yeah.  Or less.

            5             THE COURT:  Well, then whatever you get, he

            6        gets.  I mean, this is why --

            7             MR. HERTZBERG:  I just want to inform the court

            8        of one thing that's not in the record.

            9             THE COURT:  Okay.

           10             MR. HERTZBERG:  It's in response to, you

           11        haven't gone over the dates.

           12             We cited the Golden Door case in an argument

           13        before Judge Moody on October 8th of 1999, which

           14        followed as quickly as we could get into court on

           15        the heels of the use by plaintiff of Mr. Prince's

           16        affidavit.  When he came out and he submitted his

           17        affidavit, which we thought was a fact-based

           18        affidavit, we made reference in our brief and I

           19        mentioned in oral argument on an omnibus motion to

           20        strike Mr. Prince on many grounds to Judge Moody the

           21        Golden Door case which is the prong of RentClub

           22        which deals with the payment --

           23             THE COURT:  This was to strike Mr. Prince as a

           24        witness, right?

           25             MR. HERTZBERG:  That's correct.


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            1             THE COURT:  But that happened over and over.

            2             MR. HERTZBERG:  I just wanted to tell you, your

            3        Honor, the two prongs were not pursued on parallel

            4        tracks.  Because as I indicated during my original

            5        argument, the statements by Mr. Dandar on the record

            6        triggered the other portion of it -- the summary.

            7        And I rest on that argument.

            8             But I want you to know, when you were going

            9        back on those earlier dates, at a very early point

           10        in time we raised the other aspect of the RentClub

           11        case, which is subsumed also in the Golden Door

           12        case, which is that it is improper and the

           13        appearance of impropriety prohibits the payment of a

           14        fact witness because of --

           15             THE COURT:  To strike -- to strike

           16        Mr. Prince --

           17             MR. HERTZBERG:  That's correct.

           18             THE COURT:  -- as a witness.  Not to disqualify

           19        Mr. Dandar?

           20             MR. HERTZBERG:  That's correct.

           21             THE COURT:  All right.

           22             MR. HERTZBERG:  But --

           23             THE COURT:  That's my inquiry:  Why didn't you

           24        file a motion to disqualify the lawyer more than --

           25             MR. HERTZBERG:  Because --


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            1             THE COURT:  -- a month before --

            2             MR. HERTZBERG:  Your Honor --

            3             THE COURT:  -- the trial date?

            4             MR. HERTZBERG:  Because in the subsequent

            5        months and in --

            6             THE COURT:  I understand your answer.  I really

            7        understand your argument quite well.  You must think

            8        that I didn't hear you.  I heard your answer --

            9             MR. HERTZBERG:  Okay.

           10             THE COURT:  -- and I heard your answer loud and

           11        clear.  It's because you learned the extent of it in

           12        the omnibus motion.

           13             MR. HERTZBERG:  That's correct, your Honor.

           14             THE COURT:  And that's why you filed it after

           15        the omnibus motion.  That's your arguments, right?

           16             I did hear you, believe me.  I don't know what

           17        judges you all deal with, but I mean, I hear you, I

           18        understand these things, and I understand legal

           19        arguments quite well.  And you all wouldn't have a

           20        clue how I'm going to rule on this, because I don't

           21        either.

           22             I wanted to hear your arguments.  I really

           23        wanted you to answer my questions, some of which got

           24        answered and of course some of which did not,

           25        because counsel elected not to answer them.  Now


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            1        that I have your arguments, I will take this

            2        information and I will rule on it.

            3             I also am going to give you all an opportunity,

            4        Mr. Dandar -- I'm getting ready to rule on the

            5        omnibus order.  I don't know what's going on

            6        elsewhere and other things that are going on, but I

            7        do know that I need to start ruling and start

            8        assuming that whatever ruling I make in this case is

            9        going to delay this trial.  And I'm kind of annoyed

           10        I haven't ruled already.

           11             Because whoever -- unless I rule against the

           12        plaintiff's counsel -- which quite frankly is my

           13        inclination at this point in time, and that is why

           14        I'm going to give you, Mr. Dandar, the opportunity

           15        to respond to me regarding the impropriety, the

           16        appearance of impropriety in the omnibus motion.

           17        You never did, it's not in your brief, it's not

           18        anywhere.  I mean, there is that K.A.W. case,

           19        there's other cases.  The church did refer to the

           20        appearance of impropriety.  The appearance of

           21        impropriety in that motion is huge, huge, absolutely

           22        huge.

           23             You know, lest we forget the problems that

           24        counsel has with the bar telling counsel what to do

           25        and the letters that were written and now counsel's


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                                                                        114

            1        gotten $750,000 from strangers, doesn't have a clue

            2        what it's to be used for, just assumes it's to be

            3        used for any purpose, personal purpose, put it in a

            4        personal bank account -- this is well beyond

            5        perjury, but this is a huge problem.  Had no idea

            6        who to pay it back to, didn't even know where it

            7        came from, thought part of it came from somebody

            8        called the fat man.

            9             And assuming that I am going to rule that you

           10        did not commit perjury -- which I've indicated both

           11        sides I'm inclined to do -- to say that you did not

           12        commit perjury or suborn perjury, I still cannot get

           13        around -- I have a difficult time getting around the

           14        appearance of impropriety.  It's huge.  The more I

           15        look at it, I started looking at it again, the more

           16        it pops its ugly head.

           17             Quite frankly, if I had to guess right now, I'd

           18        say I'm going to deny this RentClub motion.  I'm

           19        going to deny the omnibus motion, but I'm going to

           20        probably grant that part that deals with the

           21        impropriety of counsel.

           22             That puts the plaintiff in an odd position of

           23        either -- I know you've had lawyers around who have

           24        said they can be ready for trial.  Back when this

           25        first started you said Mr. Lirot can be ready for


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                                                                        115

            1        trial on the dates scheduled.  Even if you were

            2        disqualified you would prefer to go forward to

            3        trial.  That may be still your position.

            4             You would frankly have to forego your right to

            5        take cert.  I'm only telling you this because I

            6        never know what lawyers understand and what they

            7        don't understand.  If you take cert on a motion for

            8        disqualification, that is the substantive ruling.

            9        It's not like these denial of cert on the false

           10        imprisonment, which as I've told you all many times

           11        is going to be -- in my opinion be reversed.  They

           12        didn't bother to take it on cert because they didn't

           13        have to.  They just rule on that after the trial,

           14        after they see what kind of awards are awarded, or

           15        if anything is awarded.  They like what they see,

           16        they'll deny it; if they don't like what they see,

           17        they're going to reverse it for a new trial.  That's

           18        my candid opinion.

           19             On disqualification of counsel, the cert is the

           20        substantive ruling, because naturally the injury

           21        at -- once the court makes the ruling the injury

           22        occurs.

           23             So my -- my thinking is, that if you -- if you

           24        request to take an appeal, you're going to request a

           25        stay; if you request a stay, it'll have to be


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            1        granted.  There's no way an appellate court can get

            2        that record and understand that record, read that

            3        record, make any sense out of that record by the

            4        time this case is set for trial.  So it's just

            5        almost an automatic stay.

            6             Obviously I'm giving you my inclinations, as

            7        I'm inclined to do with you guys, especially if the

            8        case comes close to trial.

            9             If I rule the other way and rule that there is

           10        no appearance of impropriety, give me what you think

           11        you've got.  You all have sort of briefed it, but if

           12        there's something else you've got that you want to

           13        submit, do it, but by Monday.  I'm going to rule.  I

           14        imagine -- I'm going to rule next week or over

           15        Christmas or something on that motion.  I want to

           16        get rid of it.

           17             So whatever you want to get to me, get it to me

           18        on Monday on the appearance of impropriety on the

           19        omnibus motion.  If the church is satisfied that

           20        you've already given me all you need to give me, you

           21        don't have to.  You know, you briefed that issue.

           22        Mr. Dandar, you did not.  And so if you don't to,

           23        you don't have to, you can just ignore it.

           24             MR. DANDAR:  No.

           25             THE COURT:  But as I indicated to you all


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            1        several weeks ago, I've pretty much made up my mind

            2        on everything but that issue, and I'm still -- I'm

            3        still fumbling around with that issue.

            4             So there you have it.  Get me anything else you

            5        want to on that by Monday.

            6             RentClub, I'll get to it --

            7             As I said, I think the church has huge problems

            8        with -- once I got to reading it, with RTC.  I think

            9        we've got some huge problems with Mr. Prince leaving

           10        in 1987.  I have no idea what the conflict is.  I

           11        have no idea what Mr. Prince could tell them that

           12        would in any way help their wrongful death case in

           13        the Lisa McPherson case.

           14             I've already disqualified Mr. Dandar on the

           15        counterclaim.  It may well be that as to those

           16        matters in the counterclaim there's some unfair

           17        advantage.  I have no idea.  That's a totally

           18        separate case.

           19             Mr. Rosen frankly can't try that either.  He's

           20        going to be disqualified.  I mean, that's just a

           21        horse of a different color with a lot of mess in it.

           22             But we're talking about the wrongful death

           23        case.  The wrongful death case, it should have very

           24        little religion in it, other than the fact that Lisa

           25        McPherson was undergoing a religious introspection


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                                                                        118

            1        rundown, what that is and why that's not for the

            2        jury to decide.  However that's explained to the

            3        jury.

            4             The rest of it is just kind of an old wrongful

            5        death case with a lot of experts and a lot doctors

            6        and a lot of stuff, and pretty simple matter.

            7             So I can't imagine what Mr. Prince could have

            8        relayed to counsel that would have been of any help.

            9        It certainly wasn't of any help to counsel regarding

           10        Mr. Miscavige being the top of the Church of

           11        Scientology.  Everybody knew that.  What the

           12        positions were of Mr. Rathburn and some of these

           13        other people, everybody knew that.  These other

           14        lawyers knew that.  This wasn't even remotely

           15        confidential information.

           16             On how to litigate?  Well, I don't know, if the

           17        idea was to add David Miscavige, that would make the

           18        case settle.  All the other lawyers knew that too.

           19        So I can't envision, in my wildest dreams, what it

           20        is that Mr. Prince knew about the Lisa McPherson

           21        wrongful death case, whether she died of

           22        dehydration, whether she died of a pulmonary

           23        embolism.

           24             He does assist in some way on an introspection

           25        rundown and what it is, and frankly that was part of


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            1        his testimony that I don't expect there's a whole

            2        lot of dispute about.  In other words, he seemed to

            3        testify very consistent with Stacy Brooks, who did

            4        the same introspection rundown.  She was testifying

            5        for the church at the time that was discussed.  He

            6        was testifying for Dandar.  And they both seemed to

            7        testify exactly the same on those few and rare

            8        occasions.

            9             So I don't know anything confidential about a

           10        religious -- I mean, surely the church cannot

           11        suggest that there's something confidential about

           12        what you've -- the religious practices of the Church

           13        of Scientology is.  I've told you all oftentimes you

           14        ought to be proud of your religion.  Introspection

           15        rundown's part of it.  Whatever goes on, you -- it

           16        just can't, by its very nature, be confidential.  I

           17        can understand auditing is confidential.  But they

           18        got the church -- they got the court's permission to

           19        allow Mr. Prince to review the auditing folders,

           20        therefore there can't be any violation there.  So I

           21        can't envision what it was.

           22             So as I said, I think you're in deep trouble on

           23        the RentClub case based on what I perceive the

           24        controlling law that I have to follow is.

           25        Mr. Dandar, I think you're in deep trouble on the


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            1        appearance of impropriety on the omnibus motion.

            2             I think I've caught you up-to-date on my

            3        thinking.  Haven't ruled.  Will.  Will try to do it

            4        quick.  I just can't see how, unless, as I said,

            5        the -- somebody foregoes their petition for writ of

            6        certiorari on one of these qualification motions,

            7        this case is going to be tried in January.  I'll do

            8        the best I can to get the orders out as quickly as I

            9        can.

           10             I've ruled on the motion to strike.  I'm

           11        expecting the church's response to what I got from

           12        the plaintiff by Thursday.

           13             MR. LIEBERMAN:  Thursday, yes.

           14             THE COURT:  And I'm going to expect if either

           15        side wants to elucidate further, either factually or

           16        legally on the appearance of impropriety that

           17        existed in the omnibus motion, you'll get that to

           18        me -- what did I say -- by Monday?

           19             MR. LIEBERMAN:  Yes.

           20             THE COURT:  By Monday.

           21             I think that's all I'm -- I think that's all

           22        we've got.  We're going to all go away and celebrate

           23        our holidays in whatever fashion we celebrate the

           24        holidays, if we haven't already, and I'll see you

           25        all after the first of the year.


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                                                                        121

            1             Thank you.  We're in recess.

            2             MR. HERTZBERG:  Thank you, Judge.

            3             MR. LIEBERMAN:  Your Honor, does that mean

            4        we're not going to -- we're not going to have the

            5        hearing on the 30th, or put that off?

            6             THE COURT:  Oh, yeah.  Is that the one the

            7        30th --

            8             MR. LIEBERMAN:  Yeah.

            9             THE COURT:  I was thinking before Christmas.

           10             MR. DANDAR:  Judge, we haven't received any of

           11        the amicus briefs.

           12             THE COURT:  Yeah, where are the amicus briefs?

           13             MR. LIEBERMAN:  They should be in your

           14        Honor's -- they should be delivered today.

           15             THE COURT:  Today?

           16             MR. LIEBERMAN:  Yeah.  The one from the Becket

           17        Club (phonetic) was mailed out yesterday, and the

           18        one from the coalition, including the National

           19        Council of Churches.

           20             THE COURT:  Okay.

           21             MR. LIEBERMAN:  These were mailed out yesterday

           22        or to be mailed out.

           23             THE COURT:  Do me a favor, Mr. Dandar.  If it's

           24        a day late, don't bother to file a motion to strike.

           25        Do me a favor, would you?


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            1             MR. DANDAR:  It was due two days ago, but --

            2             THE COURT:  Well, don't file a motion to strike

            3        if it's two days late.

            4             MR. DANDAR:  All right.

            5             THE COURT:  Because the truth of the matter is

            6        I'm going to read it before I can hear your motion.

            7             MR. DANDAR:  I can't wait to read it.

            8             THE COURT:  Okay.  I'll see you all.  Everybody

            9        have a nice holiday.

           10             MR. LIROT:  Same to you, Judge.

           11             THE COURT:  We'll see you on the 30th.

           12             MR. DANDAR:  Yes.

           13

           14

           15

           16

           17

           18

           19

           20

           21

           22

           23

           24

           25


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                                                                        123

            1

            2                    REPORTER'S CERTIFICATE

            3

            4   STATE OF FLORIDA         )

            5   COUNTY OF PINELLAS       )

            6             I, Donna M. Kanabay, RMR, CRR, certify that I was
                authorized to and did stenographically report the
            7   proceedings herein, and that the transcript is a true and
                complete record of my stenographic notes.
            8
                          I further certify that I am not a relative,
            9   employee, attorney or counsel of any of the parties, nor am
                I a relative or employee of any of the parties' attorney or
           10   counsel connected with the action, nor am I financially
                interested in the action.
           11

           12   WITNESS my hand and official seal this 19th day of December,

           13   2002.

           14

           15                             ______________________________
                                          DONNA M. KANABAY, RMR, CRR
           16

           17

           18

           19

           20

           21

           22

           23

           24

           25


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Scientology withdrew this motion to disqualify based on Rentclub, "without prejudice"


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