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Scientology Crime Syndicate

Minton Memorandum in RTC v Ward filed 12-13-99 14 Dec 1999 The Lisa McPherson Trust, Inc., Clearwater, Florida

There were some minor changes made since this draft but it is substantially what was filed on 12-13-99. It may be of use to others being harassed by the CoS legal machine for irrelevant depositions whose sole purpose is intelligence gatherings for further planned harassment.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________ ) RELIGIOUS TECHNOLOGY CENTER, a ) Mass. Bus. Misc. California non-profit corporation, ) No. 99-10211(RCL) ) Plaintiff, )Case No. C-96-20207 RMW EAI )Northern District of California v. ) ) ROBERT S. MINTON'S GRADY WARD, an individual, ) MEMORANDUM IN SUPPORT ) OF HIS OPPOSITION TO RTC'S ) MOTION FOR CONTEMPT ) AND TO COMPEL AND Defendant. ) REQUEST FOR SANCTIONS )

INTRODUCTION

This Court might well ask why the Religious Technology Center ("RTC"), an arm of the Church of Scientology ("COS"), would go to the trouble of filing in Massachusetts a Motion to Compel the testimony of a third party witness over a $10,000 payment to Grady Ward, a bankrupt individual RTC had sued and settled with in California. The answer is that the Motion has nothing to do with Mr. Ward or RTC's suit against him. Instead it is about harassing that third party witness.

In the Ward bankruptcy proceeding, RTC tried to depose that witness, Robert S. Minton, on the very topics on which it seeks to compel Mr. Minton's testimony now. In response to RTC's earlier motion to compel testimony on those topics, the United States Bankruptcy Court, sitting in Massachusetts, ruled that the testimony was irrelevant and the deposition was intended primarily to harass Mr. Minton and uncover issues on which RTC or COS would hope to sue him. RTC was ordered by the Bankruptcy Court to limit its deposition to Mr. Minton's dealings with Grady Ward and to conduct it by means of written questions. Apparently, in order to avoid having to ask another judge to allow a deposition of Mr. Minton on irrelevant subjects, RTC's counsel promised Mr. Minton's counsel that its present deposition of Mr. Minton would be limited to two narrow issues involving Mr. Ward. Based on that representation, Mr. Minton chose not to seek a protective order and appeared for his deposition. Instead of keeping its word, RTC's counsel attempted to conduct a wide-ranging inquiry of precisely the sort the Bankruptcy Court had earlier rejected. Mr. Minton answered the questions in the two areas identified by RTC and declined to answer those RTC had promised not to ask. Accordingly, RTC's Motion should be denied and Mr. Minton should be accorded compensation and protection from RTC's continued misuse of the judicial process.

BACKGROUND

A. RTC's Litigation Against the Defendant, Grady Ward

In this lawsuit, RTC obtained summary judgment against Grady Ward on July 2, 1997 in the United States District Court for the Northern District of California (the "Ward Action"). Mr. Minton was not involved in the underlying events leading to the Ward Action. He did not assist in the initiation of the litigation (indeed, that was done by RTC); and he had no involvement whatsoever in Mr. Ward's defense. Minton Aff. 6. Mr. Minton's sole connection with the Ward Action was to donate $10,000 to Mr. Ward to use toward his defense costs. Id.

Mr. Ward filed for bankruptcy protection on October 8, 1997. RTC subsequently brought adversary proceedings to preserve its claims against Mr. Ward from discharge by the Bankruptcy Court (the "Bankruptcy Case"). After obtaining an order from the Bankruptcy Court declaring RTC's claims against Mr. Ward non-dischargeable, RTC and Mr. Ward settled the Ward Action. See Jonas Aff. Exs. 2, 3 (Order Pursuant to Judicially Supervised Settlement and Final Judgment, entered on September 15, 1998).

Under the terms of settlement of the Ward Action, Mr. Ward was to pay to RTC $10,000 due to him in connection with a book contract between Mr. Ward and Mr. Minton. Id. On or about April 29, 1999, RTC subpoenaed Mr. Minton in the Ward Action. The sole reason for RTC's deposition of Mr. Minton was, in its own words, "in aid of execution [of the settlement judgment] to question him concerning the book contract and the payments of money made to [Mr.] Ward." Memorandum in Support of RTC's Motion for Contempt and to Compel and Request for Sanctions ("RTC's Memorandum") at 1.

B. Mr. Minton's Assistance to Scientology Critics.

From time to time, Mr. Minton has given financial assistance to individuals, like Mr. Ward, who find themselves in legal battles with COS. He has done so out of concern for the way in which COS treats its critics.

Specifically, he finds offensive COS' litigious nature and its apparent practice of trying to crush its critics under the heavy weight of litigation. Minton Aff. 3. For these reasons, he has sometimes offered money to help certain critics of Scientology defray the costs of litigation. Among his goals in doing so are to produce a "fairer fight" and to make it more likely that the matters at issue get heard and decided by the courts rather than disappear because one of the litigants cannot afford to continue. Id. 5.

The monies contributed by Mr. Minton to these critics of COS have nothing to do with the Ward Action or RTC's claim against Mr. Ward under the settlement. They have gone to assist an individual who obtained a large monetary judgment against COS (in an intentional infliction of emotional distress suit) in his efforts to collect on his judgment; to assist a married couple who, after publicly criticizing COS, were driven out of their community by COS members; and to assist the family of a Florida woman suing COS in a wrongful death action arising out of her death while in the custody of COS. Id. 9-11. In every case in which Mr. Minton has helped defray litigation costs, he has done so only after suit was filed; had nothing whatever to do with the initiation of the suit; and was not at all involved in the underlying controversy. Id. 4, 7.

C. RTC's Earlier Efforts To Depose Mr. Minton in its Actions Against Grady Ward and in other Proceedings. 2

Mr. Minton's opposition to Scientology and his support of other Scientology critics, including Grady Ward, have prompted, among other things, various efforts by Scientology and its affiliates to depose him. COS representatives attempted to secure Mr. Minton's deposition in the wrongful death suit brought against COS in Florida, (Liebreich v. Church of Scientology, Case No. 97-01235 (Hillsborough County, FL)(the "Florida Lawsuit")), even though, again, he had no knowledge of or involvement in the underlying events being litigated. On December 4, 1997, the court in the Florida Lawsuit denied COS' request to take Mr. Minton's deposition. Jonas Aff. Ex. 4. Shortly thereafter, on December 12, 1997, RTC issued its first subpoena to Mr. Minton in the Ward Bankruptcy Case. Jonas Aff. Ex 5.

The subpoena in the Bankruptcy Case sought the very same information which RTC now, again, seeks to compel here. For example, the subpoena sought: Any and all documents reflecting [agreements with, payments to, and communications with] any individual or entity, including, without limitation Grady Ward, H. Keith Henson, Dennis Erlich, Carla Oakley, Harold McElhinny, Morrison & Foerster, Lawrence Wollersheim, F.A.C.T.Net, Inc., Dell Leibriech, or Kennan Dandar who is involved in litigation in opposition to any Church of Scientology, Bridge Publications, Inc., or any employee or parishioner of a Church of Scientology.

Id. Mr. Minton's counsel objected to the subpoena in the Bankruptcy Case and RTC sought to compel Minton's deposition. RTC sought the very same testimony that it seeks from Mr. Minton here. See Memorandum in Support of Motion to Compel the Deposition of Robert Minton and Request for RTC's Expenses, Jonas Aff., Ex. 6 at 6-7 (where RTC sought to compel testimony from Mr. Minton on financial help provided to other critics of Scientology and his alleged participation in a "larger conspiracy . . . to damage RTC").

On April 17, 1998, Bankruptcy Judge Kenner issued a memorandum of decision on the motion to compel Mr. Minton's deposition (Jonas Aff. Ex. 7) and an order refusing to compel the deposition sought by RTC . Jonas Aff. Ex. 8. (collectively the "April 17 Order"). Judge Kenner held that "RTC left little doubt that it wanted . . . to interrogate Minton on all his connections to opponents of and litigation against the Churches of Scientology and their affiliated entities, but it demonstrated no clear or direct relevance of those matters to the dischargeability proceedings against Ward." Jonas Aff. Ex. 7 at 4. The Bankruptcy Court ruled that RTC cannot depose Mr. Minton on his relationships with other critics of Scientology and that only his funding of Mr. Ward is relevant to this matter. See Jonas Aff. Ex. 8 ("RTC may, by deposition on written questions only, inquire into whether Robert Minton has information that is relevant to, or reasonably calculated to lead to the discovery of evidence admissible in, the nondischargeability proceeding against Ward; this inquiry shall be confined to communications and dealings between Minton and Debtor Grady Ward")(emphasis added).

Among the reasons for the April 17 Order was RTC's obvious and improper intent to use the testimony of Mr. Minton (a third party to the Ward Action) to try to discover grounds on which to sue him. The Court stated that RTC "clearly" wished to used the deposition "to seek information that the Church might use to sue Minton. In sum, the RTC's primary, though not exclusive, interest in this deposition is for use in matters and proceedings other than the non-dischargeability action [against Mr. Ward] . . . Minton has shown good cause for a protective order; the right to take a deposition is not a license to conduct a roving inquiry into matters outside the scope of the present adversary proceeding." Jonas Aff. Ex. 7 at 5-6. Faced with the prospect of deposing Mr. Minton in a less confrontational and harassing fashion than it desired, and despite its pleas to Judge Kenner that it vitally needed to depose Mr. Minton, RTC never sent him a single question.

D. RTC's Present Efforts to Depose Mr. Minton.

On April 29, 1999, RTC served a new subpoena (which is the subject of this Motion) on Mr. Minton for his deposition in the Ward Action. See Declaration of

Earle C. Cooley ("Cooley Dec.") filed in support of RTC's Memorandum, Ex. A. Despite the appearance of Mr. Jonas as counsel for Mr. Minton in RTC's previous attempt to depose him in the Bankruptcy Case, RTC chose to subpoena Minton without notifying Mr. Jonas. Jonas Aff. 16.

Mr. Minton's counsel asked RTC's counsel: (1) why the deposition was necessary; (2) whether it was appropriate in light of Judge Kenner's April 17 Order; and (3) why RTC had not contacted counsel directly in light of his representation of Mr. Minton in the related Ward Bankruptcy Case. Jonas Aff. 17, Ex. 9. He further requested that RTC inform him if it intended to go beyond the relevant topics referred to in the April 17 Order. Id. In a response dated May 13, 1999, RTC's counsel agreed that the "complete scope" of Mr. Minton's deposition will consist of questions concerning "Mr. Ward's failure to pay the $10,000 [payable to RTC under the terms of the settlement] and Mr. Ward's rescission motion" seeking to set aside the settlement. Jonas Aff. Ex. 10. Based on that agreement, the deposition proceeded.

E. RTC's Irrelevant and Improper Questioning

Contrary to its agreement to stick to issues relevant to the Ward settlement, RTC used the deposition of Mr. Minton to question him on a host of inapposite topics which have nothing to do with Mr. Ward. RTC's improper questioning included the following:

1. The particulars of Mr. Minton's personal banking arrangements.

Jonas Aff. Ex. 11 at 8 - 9;

2. Mr. Minton's participation in a demonstration against COS in Los Angeles. Id. at 25;

3. Mr. Minton's tax filings. Id. at 28, 77 - 79;

4. Meetings between Mr. Minton and COS officials unrelated to Grady Ward. Id. at 54 - 57 (e.g. "[w]hat transpired at the meeting, whether or not it was relevant to Mr. Ward?"); and

5. Mr. Minton's financial contributions to and/or dealings with other critics of COS and a foundation established by those critics. Id. at 100 - 113, 118 - 123.

Mr. Minton's counsel objected to, and Mr. Minton declined to answer, questions on these topics. Jonas Aff. Ex. 11.

ARGUMENT

A. RTC's Motion Is Barred by the Earlier Decision of the Bankruptcy Court on the Very Same Issues Raised Here.

RTC is improperly using this Motion to attempt to gain discovery that was already denied in the April 17 Order. After extensive briefing by both sides, the Bankruptcy Court clearly ruled that RTC cannot depose Mr. Minton on his relationships with other critics of Scientology and that only his funding of Mr. Ward is relevant to this matter. Jonas Aff. Ex. 7 at 6 n. 3 ("[n]o justification has been established [by RTC] for inquiry into Minton's connections and communications with and support for other "opponents" of Scientology. I find that the RTC seeks information about these matters solely for use outside of this proceeding"). RTC now seeks to compel the exact same testimony, i.e. Mr. Minton's financial contributions to other critics of Scientology. By bringing this Motion, RTC is improperly trying to circumvent the April 17 Order.

Under the long-standing doctrine of issue preclusion "a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties . . . and even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified." Southern Pacific Railroad v. U.S., 168 U.S. 1, 48-49 (1897). This doctrine applies to discovery disputes where a party seeks to relitigate an issue that was already decided in an earlier litigation. See e.g. Lehigh Portland Cement Co. v. Swope, 455 F.2d 638 (5th Cir. 1972)(order denying motion to quash subpoena precludes relitigation of same issue on motion to enjoin use of evidence in subsequent action); cf. United States Fidelity & Guaranty Co. v. Baker Material Handling Corp., 62 F.3d 24 at 29 (1st Cir. 1995)("[a]mong the available forms of relief from prejudice occasioned by discovery violations are curative measures such as . . . orders tailored to effect issue preclusion").

In the hope of establishing a new theory of relevance for this line of inquiry, RTC disingenuously argues that Mr. Minton's payments to others were "placed directly in issue by the contents of his declarations" filed in support of Mr. Ward's appeal and other pleadings seeking to set aside the settlement. RTC's Memorandum at 3. But those declarations state only that representatives of COS asked Mr. Minton to stop supporting Mr. Ward. Cooley Aff. Exs. I and J. Mr. Minton testified fully on those discussions. Jonas Aff. Ex. 11 at 45 - 53.

Because RTC has not offered a single reason to distinguish the situation here from the circumstances addressed in the April 17 Order, this Court should give the Bankruptcy Court's ruling effect here.

B. The Discovery Sought by RTC Against Mr. Minton Is not Relevant to the Ward Action.

Apart from the effect of the April 17 Order, the discovery sought by RTC against Mr. Minton is not relevant under Fed. R. Civ. P. 26(b)(1). RTC bears a particularly heavy burden here to show relevance in light of the fact that the underlying suit was directed at Mr. Ward's actions and the Complaint makes no mention of Mr. Minton. RTC's alleged interest in seeking to discover Mr. Minton is "to question him concerning the book contract [with Mr. Ward] and the payments of money he made to Ward." RTC's Memorandum at 1. However, as discussed supra, the questions to which RTC now seeks to compel answers relate to Mr. Minton's financial dealings with others, not Mr. Ward, and to the particulars of Mr. Minton's bank account and tax treatment of payments made to Mr. Ward in the past. There is simply no connection between the avowed purpose of the deposition and the discovery now sought by RTC.

RTC's Memorandum reproduces many of these clearly irrelevant questions at pages 8 and following (e.g. "When did you make advances to Wollersheim and in how many increments? Did you give any money to Arnie Lerma? Did you give money to Mr. Henson? Did you purchase the Vashon Island property and the cat sanctuary? etc). As Judge Kenner made clear in her April 17 Order, the primary purpose of such questions is to gather information which COS hopes to cobble into a lawsuit against Mr. Minton. Jonas Aff. Ex. 7 at 4. The use of a deposition in the Ward Action to elicit information in the hope of suing Mr. Minton is sufficient in itself to deny RTC's motion.

RTC argues that Magistrate Judge Infante's Order dismissing Mr. Ward's Motion for Protective Order somehow opened up the permissible scope of Mr. Minton's deposition. RTC Memorandum at 2. This utterly unfounded argument must be rejected, because the scope of Mr. Minton's deposition was not even raised by Magistrate Judge Infante. Mr. Ward's Motion sought only to stay Mr. Minton's deposition until the litigation between RTC and Mr. Ward was resolved or RTC succeeded in obtaining an order of execution of the settlement judgment. Jonas Aff. Ex. 17. The Court never addressed, nor was it asked to address, the scope of Mr. Minton's deposition, only its timing. RTC's Memorandum at 17 ("Magistrate Judge Infante . . . made no finding [on the relevance] of any of the subjects that RTC wished to address"). Like the questions about Mr. Minton's payments to others, RTC has failed to demonstrate any relevance whatsoever to its numerous questions seeking information about the particulars of Mr. Minton's bank account and how he treated past payments to Mr. Ward for tax purposes. See e.g. RTC's Memorandum at 4 - 6. Mr. Minton provided RTC with the dates, amounts and particulars of each payment to Mr. Ward. See Cooley Dec. Ex. P. He also testified at length about the circumstances of those payments. Jonas Aff. Ex. 11 at 8 - 25. RTC now seeks to compel copies of the checks to Mr. Ward in order to identify Mr. Minton's bank. But RTC offers no explanation, legitimate or otherwise, as to why that information is relevant. Moreover, the relevance of RTC's equally inappropriate interest in Mr. Minton's taxes is also unexplained in RTC's Memorandum.

C. The Discovery Should Be Disallowed as an Attempt by RTC to Continue its Campaign of Harassment of Mr. Minton.

Aside from the need to establish the relevance of the discovery, there are other important principles at work here. First, all persons are entitled under Fed. R. Civ. P. 26(c) and 30(d)(3) to protection against unreasonable discovery which would cause "annoyance, embarrassment, oppression, or undue burden or expense." Second, non-parties are afforded even greater protection against harassing or inconvenient discovery. Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980); In Re Candor Diamond Corp., 26 B.R. 847, 849 (S.D.N.Y. 1983)("[r]estrictions on discovery may be broader where a non-party is the target of discovery to protect such third parties from unnecessary harassment, inconvenience, expense or disclosure of confidential information"). Finally, discovery requests against non-parties designed for use in different proceedings or for purposes of discovering a reason to sue the non-party are improper.

Oppenheimer Fund v. Sanders, 437 U.S. 340, 352-353 (1978)("when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery is properly denied"); Blout International, Ltd. v. Schuylkill Energy Resources, Inc., 124 F.R.D. 523, 527 (D. Mass. 1989)(plaintiff should not be permitted to take discovery of non-party for purpose of discovering cause of action against it in another suit).

RTC's deposition questions violate each of these principles and, in light of the COS' pattern of out-of-court harassment of Mr. Minton, should not be enforced. Since learning that Mr. Minton has provided financial support to COS critics, COS has threatened to "attack" him in various ways; hired private investigators to harass his family and former business associates; had his two young daughters followed; tried to turn his friends and neighbors against him with repeated leafleting of his neighbor-hood; and threatened suit against him. Minton Aff. 13 - 19. Even documents filed in support of RTC's Motion to Compel are replete with statements by Scientology officials admitting their campaign to harass Mr. Minton. See Cooley Dec. Exs. K, L and M ("Frank Ofman, a spokesman for the Boston-area branch of the Church of Scientology, said church members distributed . . . leaflets [accusing Mr. Minton of bigotry] . . . Church officials acknowledged that they have conducted their own investigation into Minton's funding practices" and "Church officials . . . acknowledged picketing [Mr. Minton's] house and using private investigators to examine his background"). Given the total lack of relevance of the testimony RTC is seeking to compel, the present Motion is obviously just another form of COS-sponsored harassment. 8 Wright & Miller, Federal Practice and Procedure 2036 (2d ed. 1994)(citing United Airlines, Inc. v. U.S., 26 F.R.D. 213, 219 n.6 (D. Del. 1960))("discovery has limits and . . .these limits grow more formidable as the showing of need decreases").

At least one other court has explicitly noted the RTC's abuse of the litigation process to silence COS critics. In Religious Technology Center v. Lerma, 908 F. Supp. 1353, 1360 (E.D. Va. 1995), the court made the following finding:

[T]he Court is now convinced that the primary motivation of RTC suing Lerma, DGS and The [Washington] Post is to stifle criticism of Scientology in general and to harass its critics. As the increasingly vitriolic rhetoric of its briefs and oral argument now demonstrate, the RTC appears far more concerned about criticism of Scientology than vindication of its secrets.

Exactly the same motivation is at work here.

D. RTC Should Be Ordered to Pay Mr. Minton's Costs in Opposing this Motion.

Fed. R. Civ. P. 37(a)(4) provides that:

If the motion [to compel] is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay the party or the deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (emphasis added)

Both a protective order against any discovery of Mr. Minton in any proceeding relative to the Ward Action and an award of attorney's fees and other costs are particularly appropriate here.

Through their respective efforts in the Ward Action, the Ward Bankruptcy Case and in the Florida Lawsuit, RTC and COS have demonstrated their willingness to use compulsory process not only to harass but also to advance their purposes in other litigation. When it cannot get what it wants from one court, it submits the same or similar issues to another court. RTC must be sanctioned to put an end to its forum shopping. Religious Technology Center v. Scott, No. 94-55781, 1996 U.S. App. Lexis 8544 at *15 (9th Cir. 1996)(legal fees for costs of fighting discovery motions brought by RTC assessed against it due to its "multiplication of the proceedings . . . filing of frivolous motions and of offensive and unreasonable motions").

Mr. Minton respectfully requests that the Court order RTC to pay his costs, including attorney's fees, incurred in responding to the present motion. The discovery sought is not even remotely relevant to the issues in the Ward Action. RTC's counsel promised to limit the deposition to two discrete issues. Having secured Mr. Minton's attendance through that promise, they disregarded it and tried to use the deposition to harass Mr. Minton on wide-ranging and irrelevant issues. Mr. Minton should not, yet again, have to incur the costs of responding to such clearly abusive discovery.

CONCLUSION

For all the foregoing reasons, RTC's Motion for Contempt and to Compel and Request for Sanctions should be denied and RTC ordered to pay Mr. Minton's attorney's fees in responding to its Motion.

Respectfully submitted,ROBERT S. MINTON,

By his attorney,

Dated: December 13, 1999

Stephen A. Jonas, Esq. (BBO No. 542005) Gabrielle Wolohojian (BBO No. 555704) Hale and Dorr LLP 60 State Street Boston, MA 02109 (617) 526-6000

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