Yesterday, Judge Dib Waldrip allowed opening statements and testimony in Monique Rathbun’s request to convert a temporary restraining order into a temporary injunction in her harassment lawsuit against the Church of Scientology.
But today, the temporary injunction hearing is being put on hold as the church’s motion to disqualify Monique’s attorney, Ray Jeffrey, becomes the focus.
Things are supposed to get going at 10 am local time today (11 am New York, 4 pm London, 8 am Los Angeles, 1 am Sydney), and as with yesterday’s session, we’ll be live from our laptop in the courtroom until testimony is put on, when Judge Waldrip requires no recording devices and we have to switch over to pen and paper.
We know that some folks are still a little unclear on the disqualify motion, so we’ll quickly recap how we got here today.
On August 16, Monique Rathbun filed her lawsuit against Scientology, and specifically against five defendants: the Church of Scientology International (CSI), the Religious Technology Center (RTC, the nominally controlling entity of Scientology), David Miscavige (RTC’s chairman of the board), Monty Drake (a Dallas private investigator), and Steven Gregory Sloat (a former deputy US Marshal).
Four days later, we got wind that the lawsuit had been filed, and we then broke the news about it. (We mention that because in court yesterday, CSI attorney Les Strieber accused Monique Rathbun of telling us about the suit so that we had a story up about it the day after it was filed. That didn’t happen, but we’re flattered that Strieber at least was under the impression that we were so lightning fast.)
Monique alleged in her lawsuit that because her husband, Mark “Marty” Rathbun, had begun in 2009 to criticize publicly his former boss, Miscavige, the church had then spent the last four years harassing the both of them, even though Monique, unlike her husband, had never been a member of the Church of Scientology.
When she filed the lawsuit, Monique was granted a temporary restraining order, which prevented the defendants from doing any further surveillance or harassment of her for the next 14 days, until a hearing could determine whether to replace the TRO with a temporary injunction. That TRO was extended, and a hearing for September 12th was set.
But then, David Miscavige and RTC filed “special appeareances,” arguing that the Texas court didn’t have jurisdiction over them, and requested to be dropped from the lawsuit. Miscavige attached to his special appearance a declaration in which he claimed that he had only a limited role in Scientology, and he had never done any business in Texas.
Monique’s side, however, was prepared for this, and soon fired back with an amended complaint. She added two more defendants — Dave Lubow (Scientology’s chief private investigator) and Ed Bryan (one of the “Squirrel Busters”) — and she attached an affidavit from her husband, Marty Rathbun, that was designed to impeach the testimony in Miscavige’s declaration. Miscavige, Marty alleged, did not have a limited role but in fact ruled every aspect of Scientology with an iron fist from his position as “captain” of the “Sea Org,” and had overseen and micromanaged numerous activities in Texas, contrary to what Miscavige had said in his declaration.
And it was clear from Ray Jeffrey’s opening statement yesterday that the crux of Monique’s argument in this case is that only David Miscavige has the authority in Scientology to have ordered and managed the four years of harassment that she has endured.
After Marty Rathbun’s affidavit was entered into the court record, on Monday CSI filed a motion to disqualify Monique’s attorneys, blaming them for filing Marty’s affidavit, which CSI says violates the church’s attorney-client privilege.
Marty Rathbun was a member of Scientology for 27 years, and for 17 of those years worked as Miscavige’s top lieutenant, overseeing the church’s legal strategies. It’s improper, the church says, for Marty to now reveal what he did in that role for the church, and by knowingly revealing that material, Ray Jeffrey and his team should be punished.
With the help of Manhattan attorney Scott Pilutik, we’ve already explained why we think this motion is fatally flawed. CSI cites previous cases involving attorneys switching firms and then divulging secret information of their previous employers. But Marty Rathbun is neither an attorney nor an employee of Ray Jeffrey — he’s a witness.
This morning, Judge Waldrip will be allowing the church’s attorneys to put on opening statements and testimony in their attempt to boot Jeffrey from the case. It should be entertaining, if nothing else.
But it does mean that the church has successfully derailed the temporary injunction hearing itself, and Ray Jeffrey may not get back to putting on more testimony about the harassment of his client for a week or even several more weeks. (In the meantime, however, the temporary restraining order does remain in place, so at least the church is under court order not to surveil Monique until a decision on the temporary injunction can be made.)
We hope this helps you understand where we are this morning. We’ll start live-blogging once we’re in place in the courtroom.
Posted by Tony Ortega on September 13, 2013 at 08:50
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LIVE-BLOGGING UPDATES WILL APPEAR HERE….
We’re back in place here in Judge Waldrip’s courtroom. He’s still wrapping up some other matters. Mike Bennitt has been here for a while, and he came up to us and said he was amazed watching Waldrip handle drug cases this morning. “He’s the most compassionate judge I’ve ever seen,” Mike said, and added, “Scientology is screwed.”
Well, that remains to be seen. So far only three members of Scientology’s team in the courtroom with us.
Yesterday, Judge Waldrip indicated that he wanted to be done today by 3:30 pm, 4 pm at the latest, because he has some other matters he has to get to this afternoon. We got the feeling, particularly from Lamont Jefferson, the attorney for RTC/David Miscavige, that today’s entire session will be taken up by the disqualify motion.
Obviously, we’re running a little late. The last drug case was finally concluded a moment ago. The parties for both sides are now getting into place. The judge has gone out of the courtroom. We should be proceeding fairly soon.
Here we go… George Spencer, San Antonio attorney for CSI starting his opening statement.
Yesterday, George says, Ray Jeffrey made it clear that his purpose is to attack David Miscavige.
Now just two weeks ago, Aug 28, Miscavige’s attorney, Lamont Jefferson, filed special appearance for Miscavige, in that, Jefferson urged that while the plaintiff, Mrs. Rathbun, is of course entitled to her day in court…she must do so in California.
Spencer now says that because Lamont Jefferson’s special appearance for Miscavige was such a fine piece of lawyering, Monique Rathbun and her attorney Ray Jeffrey were desperate and filed an affidavit by Marty Rathbun.
It was a desperate move, Spencer says…In their zeal to do whatever it takes to go after Miscavige, they jumped over an ethical line.
In his affidavit, Marty Rathbun sets out under oath how intimately involved he was with my client, CSI, and our co-defendant, RTC. For 20 years, Marty said, no legal matters occurred without his knowledge.
In an attempt to keep this case in Texas, Marty described the hiring of attorneys and described the supposed substance between himself as a legal affairs employee and attorneys.
Spencer now pauses to indicate that what Marty occurred between him and the attorneys was false. But that’s not the point here.
It was impossible for Ray Jeffrey not to know that publishing that material was an unethical breach, Spencer is saying.
The course of action is clear, Spencer says — Monique’s attorneys should be dismissed.
Because of the length of his employment, Rathbun is considered to have been privy to confidential information. We would be here in a totally different situation if Monique’s attorneys had prevented Rathbun from revealing the confidential information that he had.
Spencer is well spoken, and he’s laying out this statement with strong emphasis in the right places. Judge Waldrip has his hand on his chin, and seems to be paying good attention.
Texas Supreme Court case law requires disqualification, Spencer says. Waldrip just indicated that he has read the state supreme court case that they’re referring to.
“I take no joy in bringing this motion” — Spencer, quoting the standard Scientology playbook.
Spencer just said this is the second time that he’s had to bring a motion like this against “these lawyers.”
Spencer, in other words, is trying to paint a picture that Ray Jeffrey is some kind of clown. Hey, Spence, then why did Ray clean the floor with you the last time?
Ray: “a highly offensive, dilatory tactic.”
Ooh. Ray’s got a very strong tone in his voice today. Not like yesterday.
“There’s no amusement here.” After a 30-year career, never having any accusation like this…it’s not amusing. “This motion is outrageous.”
We do intend to file a motion for sanctions, to punish them for this dilatory tactic.
Motions to disqualify attorneys are the perfect tool for someone seeking a dilatory tactic.
The single most infamous client in the country for disqualify, dilatory motions is the Church of Scientology.
You notice they never get really very specific about the confidential material supposedly released in this unethical report.
Every fact in Marty Rathbun’s affidavit — which we were forced to file — did I receive, your honor, some confidential, privileged inforation that went into that affidavit? Everything in that affidavit I already knew. Your honor, it is all already in the public record. Every single word. And what is so disrespectful is that the church side…has 27 boxes of everything Marty Rathbun has ever written.
Ray just held up Going Clear by Lawrence Wright, Inside Scientology by Janet Reitman, books by Marty Rathbun — all of the information in Marty’s affidavit was already out there.
Kendrick Moxon just scooted out of the courtroom. No idea.
Ray is saying that the crucial paragraphs in his affidavit — about the hiring of the Jenkins & Gilchrist firm — was already detailed in an affidavit that Marty gave in Ken Dandar’s case in Florida last year. The material was already on the record.
It is THEIR burden to show that this information is privileged and confidential.
All of this information was public when it came to “little old me,” Ray said. And he knew it. “I’d read Janet Reitman’s book. I’d read Lawrence Wright’s book.”
The evidence that they’re crying about is not privileged or confidential. It’s in the public domain.
Mr. Rathbun spoke out for the first time in 2009. He has spoken out in television and print interviews. He’s written three books. He was the subject of a documentary. He has been involved in other cases — including those involving George Spencer.
And not once — and they have a dozen lawyers in this courtroom, that’s how lawyered-up they are — and not once have they sued Mr. Rathbun. Not once have they tried to stop him from getting this information out into the public.
They know that Mr. Rathbun is one of the most knowledgeable people in the world about what has happened in the Church of Scientology. And they know he’s going to be a witness in cases, and yet they don’t go to courts and say, you can’t let him be a witness. They know that’s ridiculous.
They watch him like a hawk — that’s why they have 27 binders of everything he’s ever written. And that’s why they’ve never once tried to shut him up. All they have is this, this one dilatory tactic.
They have filed motions to disqualify over and over and over again. That’s the situation we’re in. And that’s why we’re going to come back and seek punishment.
Now slamming Spencer’s sweet-talking of Jefferson’s special appearance. Sue them in California? What it actually does is call the lawsuit extortion.
Ray: I am an ethical, upstanding attorney. Nothing privileged, confidential information came to me…this is information that was already public.
I knew all this stuff, your honor, he says.
For the last five years, they have made zero attempt to keep this stuff secret. Why? Because they know they can’t….So instead, their tactic is always attack the lawyer.
Spencer cites three white-horse cases that he tells you means you must throw these lawyers out of the court. You know what these cases are? A paralegal works for one firm and then goes to work for another firm on the other side of the lawsuit…That’s not the case here, Ray says.
The material is not privileged, they know it’s not privileged. If it were privileged they would have to make an effort to protect it — they have never attempted to protect it.
Your honor, this is a despicable motion. They ought to be ashamed of themselves.
As for Spencer’s previous time of trying to disqualify Ray, Ray says that he was about to destroy it, and Spencer ASKED RAY not to file it! Did he tell you that, judge?
So twice now, I have been called immoral and unethical…and this is absolutely wrong.
Spencer wants to respond, Waldrip says “I think it was tit for tat.” Spencer sits down.
OK, folks, the judge is asking for recording devices to go off. So we’ll be taking notes on paper and get them to you as soon as we can…
….AND WE’RE BACK.
We have copious notes of the uphill push that George Spencer just made with the judge, and we’ll get those spelled out a little more complete soon. But for now, we can tell you this…
Judge Waldrip is very, very skeptical of this motion. But it’s worse than that. Waldrip, near the end of the session, raised a question that should scare the crap out of the Scientology side.
In typically shortsighted fashion, George Spencer’s arguments for why the Judge should disqualify Ray Jeffrey and his co-counsel rests on the idea that while Marty Rathbun was an officer in RTC, he oversaw matters in CSI and OSA.
The judge asked, “Does that mean that CSI and RTC are the same thing?”
No, your honor, it doesn’t, Spencer said.
OH CRAP — this is what had to have been going through the minds on the Scientology side.
Judge Waldrip just stepped on the other, more important matter that Scientology is pushing here — to keep Miscavige out. THAT strategy is based on convincing the court that RTC, CSI, and the rest are all separate, and that Miscavige’s role is limited.
Oh, that was something. Scientology’s strategy in this motion might have just ruined what they are trying to do to keep Miscavige out.
We perceived it as a crucial, crucial error by Scientology. And at the end, Judge Waldrip seemed no more convinced to disqualify Monique’s attroneys than when George Spencer began his long, repetitive dissertation.
OK, heading to lunch!
Back in the courtroom. We have a few minutes before things get going. We’ll try to type up a few more notes about George Spencer’s performance on the disqualify motion, which we said earlier was a long push uphill and didn’t seem to get a lot of traction with Judge Waldrip.
Spencer started out restating what he’d said earlier in his opening statement. (And come to think of it, how is George Spencer talking for an hour about this motion “testimony” anyway? There didn’t seem to be much of a reason for us to be kept from using the laptop. Oh well.)
Spencer specifically pointed to paragraphs 25 and 26 of Marty Rathbun’s affidavit, in which Rathbun said that he oversaw every aspect of Scientology’s legal affairs under David Miscavige, and for more than 20 years, the Office of Special Affairs, a part of CSI (Spencer’s client), answered to him.
When even a non-lawyer has been directly involved in legal matters, that person has confidential information, Spencer asserted.
Spencer’s argument here is complex. He’s saying that because Marty oversaw Scientology’s legal matters, he had to keep that information confidential, and it was wrong of Ray Jeffrey to make use of it in an affidavit. But Spencer also says that to prove its case, CSI does NOT have to detail what the confidential material actually is. But he also says that what Marty said in his affidavit was false.
So: Marty’s a liar. But when he lied, he violated the church’s privacy. So therefore Ray Jeffrey should be fired from the case.
Almost right away, however, Judge Waldrip was interrupting, asking Spencer with what we could only characterize as common sense.
The case law Spencer was relying on, for example, wasn’t it really about attorneys switching sides and giving the new firm information about the old firm?
And if it were not about attorneys, but about anyone who had left a job, how would their spouse (as in this case) or their child someday ever have the right to sue that employer if they were harmed?
Spencer did his best to deal with questions like that, but it was pretty obvious that Waldrip was seeing through this motion for the exact same reasons our friend Scott Pilutik told us it was a loser.
So Spencer dug in. He referred to even more cases, saying that the Texas Supreme Court had dealt with confidentiality problems involving non-attorney employees. In one case, a CEO’s personal assistant had stolen four confidential documents and had delivered them to her new employer…
But she took some form of communique, Waldrip interrupted. Oops. Another dead end.
Spencer digs in again. He brings up another case involving someone who was not an attorney who had used confidential information. We watched Waldrip move his head from side to side, as if he were thinking, “Well, yes and no…”
One more time Spencer brought up that in this case, Marty Rathbun had said false things in his affidavit, and had violated the confidentiality of the church.
And then, the best interruption so far…
“How is something that is false confidential?” Judge Waldrip asked.
Oh, it gets better. Because it’s at about this point when George Spencer took a shot at Monique Rathbun for having so many attorneys in the courtroom.
We are not kidding.
At one point, during his opening statement, Ray Jeffrey had pointed out that Scientology had 12 attorneys in the courtroom. (This morning’s full team was 16 people in suits, but a few of them may have been witnesses — like Warren McShane — or legal assistants.)
Now, the issue of a new attorney for Monique came up (if Waldrip granted the church’s disqualify motion), and Spencer said, and we’re paraphrasing, that since Monique could afford THREE attorneys in the courtroom, then…
Oh, he did not go there.
Sorry about that. We got shut down again as Monique’s request to depose Miscavige was argued. We’re not sure why. But now Judge Waldrip is back in his chambers, reading some cases, and implied that he’s going to come back to us and announce a decision on that soon.
So we’ll go back to where we were and continue the tale.
Getting back to the disqualify motion we were talking about earlier. After George Spencer had been pushing uphill for about an hour, trying to convince Judge Waldrip that Ray Jeffrey and Elliott Cappuccio and Marc Wiegand (Monique’s attorneys) should essentially be called immoral and be fired because of some rather arcane notion about Marty Rathbun’s relationship to Scientology.
Said Waldrip: “I’m having a hard time getting as far as you want me to go.”
But Spencer kept trying, even though his arguments sounded less and less likely. You could feel the air going out of his balloon. And when he said, “This is a serious issue, judge,” it was a dead giveaway that very few people in the courtroom agreed with him.
Waldrip, for example, pointed out that the case law on this issue — confidential information — invariably was about an attorney or paralegal sharing information on a particular case, not about their general knowledge.
Spencer disagreed. “Judge, I know you are reluctant to disqualify any counsel. But it really needs to be done in this case.”
Then came the biggest gaffe of the morning, which we hinted at earlier. As Spencer continued to harp on Marty Rathbun’s affidavit, and his assertion that he had overseen CSI’s legal matters, Judge Waldrip interrupted…
If Rathbun was working for RTC, but overseeing CSI’s legal matters, are they all the same?
“No, your honor,” Spencer quickly responded, but we figured his colleagues had to be worried. Because Waldrip was now clearly seeing that there didn’t seem to be much difference between the entities, when their separate nature is the essence of Scientology’s strategy to keep David Miscavige out of this lawsuit.
So by the end of the morning session, it appeared from the back benches like George Spencer’s arguments about disqualifying Ray Jeffrey and his team was basically in tatters, and had actually harmed Scientology’s other major strategy.
And now, in the afternoon session, it was time to take up that argument. Now it was Elliott Cappuccio, Ray Jeffrey’s colleague, explaining why Monique’s side was entitled to depose David Miscavige to establish jurisdiction over him.
Cappuccio cited case law to suggest that Scientology was pulling another fast one, referring to cases that really would not justify keeping Miscavige out. He was brief and well spoken.
Now it was Lamont Jefferson’s turn, representing David Miscavige and RTC.
This is the guy whose job it is to throw CSI under the bus in order to keep Miscavige out of the lawsuit. He said that Monique’s reasons for including Miscavige in the lawsuit was only a form of “leverage” to get a bigger settlement, and not because there was any actual evidence that Miscavige had anything to do with her alleged harassment.
Lamont Jefferson is an excellent speaker, and an impressive looking person. He actually looks good in his expensive suit, unlike some of the other attorneys. But his major fault seems to be that he’s talking to Waldrip like the guy is a naive yokel.
He quotes something Marty Rathbun said in his affidavit, for example — about how when he was in the church, they basically lied to the public about Miscavige’s true role — and acts as if it were the only thing he needed to say. Rathbun himself, Jefferson said, impeaches himself, and there’s no other evidence about Miscavige in this lawsuit.
“That statement can be read two different ways,” Waldrip then said, and Jefferson seemed thrown for a loop.
But he kept pushing. “There’s no competent, plausible pleading or evidence” about Miscavige that would justify subjecting him to a deposition, Jefferson said.
And then it was time to throw CSI under the bus again.
Let Monique sue CSI and you won’t run afoul of the First Amendment, Jefferson told the judge.
This is a religious dispute, and Marty Rathbun was setting up his own knock-off version of Scientology, Jefferson complained.
But what about the Squirrel Busters, Waldrip asked — is he saying that CSI sent them?
My suspicion is that those were people faithful to CSI who were exercising their religious freedoms, Jefferson answered.
Jefferson cited case law about church members who had sued over the way they were treated by a church, but it was held that the church’s behavior was protected by the first amendment.
“But would that be true of a former member of the church? And forevermore?” Waldrip asked. And he appeared to be losing some patience.
One more time Jefferson said that CSI had submitted to jurisdiction in the case and should be the aim of the lawsuit.
“The last thing this court should do is subject an ecclesiastical leader to a deposition,” Jefferson said.
The court shouldn’t be relying on old information from Marty Rathbun.
“Mr. Rathbun has no knowledge of what’s happened inside the church since he left it in 2004.”
At this point, Les Strieber had the brilliant idea of standing up to clarify a few things.
Oh, Les. Bad idea.
First, Les explained that the Squirrel Busters were not agents of CSI or any church entity.
But as for the surveillance of the Rathbuns, “The church is concerned when their orthodoxy has been challenged or corrupted.”
So CSI is admitting to the surveillance, and that it was done by its division the Office of Special Affairs. As Jefferson had said, “I think CSI is going to admit to a connection to the private investigators.”
But now Strieber makes things as clear as mud as to CSI’s actual role. When Waldrip asks him, just what does CSI do, Strieber says that it is “an administrative, business entity.”
“So it’s not really a church?” Waldrip asks.
“They call it the mother church,” Strieber answered.
So what does RTC do?
“If I may, your honor. RTC holds the intellectual property,” Jefferson interjected.
Oh, this was going south, fast.
“So someone else holds the licenses that you do business with?” Waldrip asked.
Clearly, it was making no sense to Waldrip, and Scientology had somehow managed to make a hash of things.
So the judge said he wanted to go back and read several cases that had been cited, and would be back to us with some sort of decision soon.
In the meantime, we had a couple of Texas sheriff’s deputies come over to us, and they were not happy.
It seems that after the break, the morning’s “testimony” was over, and we were onto the new subject — the deposition. So we pulled out our laptop and started typing away. A deputy came over to us and asked us to put it away. We said we hadn’t heard anything from the judge, could we ask him?
“If you have the guts, ask him yourself,” the deputy said.
OK. So we stood up, and said, “Your honor, the morning’s testimony is over. Can we use a laptop now? We didn’t hear an instruction?” He said not now, he’d address it later. OK. So we put the laptop away and took out the note pad again.
Well, at recess, two deputies came over to us, and they were not happy. Apparently, “If you have the guts, ask him yourself” was Texan for “You disobey my authority and you’re going to spend the night in jail hog-tied,” or something.
Whew. These guys were shaking. And we were stupid enough to keep arguing with them.
Well, fair readers, after trying to explain that we had just done what we were told — ask the judge if we had the guts, which we did, we put it away. OK, judge back.
Judge Waldrip said he wasn’t able to get through everything. He said he’s leaning toward granting a continuance on the hearing, but wanted to see if there’s a middle road on discovery.
Ray Jeffrey and Lamont Jefferson are now sparring a little, politely, and the Judge seems stymied. Is he going to decide nothing today?
“I want to completely read these affidavits…It would probably be Monday before I could rule on this deposition of Mr. Miscavige. Would written questions work, or does it have to be oral?” Judge Waldrip asked.
Waldrip is trying to talk Ray into allowing Miscavige to submit written responses. Ray is trying to say that it wouldn’t be satisfactory. Now Ray is offering maybe to depose someone else first.
Waldrip is going to let the two parties try to work out a reasonable plan. (Yeah, right.) Now he’s talking calendar.
So the special appearance issue (whether RTC/David Miscavige should be part of the lawsuit) has been continued to October 18.
Meanwhile, he’s made no decision yet on the motion to disqualify.
Neither side really got anything at all today. And Waldrip made one utterance that suggests he is concerned about appeals.
It appears that he’s being very careful, and wants to think things over before making decisions. Good for him. Not so good for us. OK, heading to the bar.