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Marty Rathbun and David Miscavige, back in the day

Marty Rathbun and David Miscavige, back in the day

When Mark “Marty” Rathbun filed an affidavit last week saying that his former employer, David Miscavige, firmly rules every aspect of the Church of Scientology and oversaw its dirty tricks campaigns in Texas, we expected that the church might respond by calling Rathbun a liar.

Instead, Scientology is crying foul because Rathbun told the truth.

In a stunning, if predictable, move, late yesterday the Church of Scientology asked Comal County, Texas Judge Dib Waldrip to disqualify Monique Rathbun’s attorneys and cripple her harassment lawsuit because, the church says, Monique’s attorney Ray Jeffrey and his team improperly used “confidential and attorney client privileged information” when it allowed Marty Rathbun to submit an affidavit in his own wife’s lawsuit.

Scientology is asking Judge Waldrip to consider the motion Thursday morning, along with other matters in what is becoming a crowded two-day hearing in New Braunfels, Texas.

Monique Rathbun filed her lawsuit on August 16, alleging that she has been the target of a four-year campaign of harassment by Miscavige and Scientology simply because she is married to the man who was once Miscavige’s top lieutenant before he left the church in 2004 and then, in 2009, became its vocal critic. Monique is suing on grounds of intentional infliction of emotional distress, tortious interference of her employment contract, and invasion of privacy. She’s asking for more than a million dollars in damages.

Miscavige filed a special appearance on August 29, asking to be let out of the lawsuit because, he claimed, he had only a limited role in Scientology, had never done any business in Texas, and didn’t even know one of his fellow defendants, a Dallas private investigator named Monty Drake.


Monique responded by filing an amended complaint that added two defendants and provided more details about why she believes Miscavige, as Scientology’s leader, was behind her harassment. To bolster that assertion, she attached a lengthy and explosive affidavit by Marty Rathbun detailing the work he did for Miscavige in Scientology. Among its many assertions…

— Scientology’s corporate structure is a sham, and the church is really run by a “shadow organization,” the Sea Organization, which is captained by Miscavige.

— Miscavige’s every utterance was considered so important, Sea Org employees constantly followed him everywhere he went, recording his words and transcribing them 24 hours a day.

— Miscavige, through Rathbun, monitored the dirty tricks and harassment campaigns run by Scientology’s “Office of Special Affairs.”

— Miscavige, in his declaration, made false statements about having no knowledge of Monty Drake and having overseen no activities in Texas. According to Rathbun, Miscavige was well aware that Drake had been used for church operations for years, and Miscavige had micromanaged numerous activities in Texas, which included an effort to influence the family of dead church member Lisa McPherson.

— Crucially, in paragraphs 31 to 36 of the affidavit, Rathbun says that Miscavige relied on him to find a law firm with insider connections to handle matters related to McPherson.

And now, the Church of Scientology International (CSI, one of the numerous defendants in the lawsuit) has fired back in a startling way. While Rathbun essentially said that Miscavige lied about his Texas activities, the church’s attorneys are objecting not to the substance of Rathbun’s statements, but that he had an obligation to keep them secret. From CSI’s motion to disqualify, which was filed late yesterday…

There can be no dispute that Mark Rathbun, by his own sworn admission, was a non-attorney employee engaged in the Defendants’ legal affairs for many years. He has now improperly and impermissibly shared the Defendants’ confidential and privileged information acquired by him while in their employ with Plaintiff’s counsel and that Plaintiff’s counsel is now attempting to use it against these Defendants in this case.

Scientology, in other words, is arguing that Marty Rathbun’s fiduciary duty to keep his mouth shut is stronger than Miscavige’s own duty to tell the truth to a Texas court.

We’re gobsmacked, we really are. We turned to our legal adviser, Manhattan attorney Scott Pilutik, who cautioned us that the real problem with Scientology’s motion is in its legal argument…

This is really quite compelling.

First though, I’d caution against drawing the inference that Scientology is necessarily admitting the truth of Marty’s affidavit by posing the argument in these terms. Their conflict argument doesn’t depend on all of Marty’s allegations actually being true, only that he’s alleging information and communications which are in fact attorney-client privileged. Specifically, CSI references paragraphs 31 through 36 of Marty’s affidavit, which covered Marty’s and Miscavige’s involvement in procuring the Texas law firm Jenkins & Gilchrist in Lisa McPherson-related litigation.

That said, I think their argument has a huge problem. Well, a few actually, but one problem looms larger, I think.

The smaller problem is that Marty’s allegations in paragraphs 31 through 36 were made in the context of directly refuting Miscavige‘s statements that he’d never purposely availed himself of Texas law, arguing that the Texas court did not have personal jurisdiction over him. Marty’s statements contradict that assertion. Moreover, Marty’s statements about the activities Miscavige directed in Texas concern conduct that is, at very best, ethically dubious.

I’m also not so sure it’s a given that the assertions by Marty in paragraphs 31 through 36 are necessarily attorney-client privileged. While it’s definitely the sort of information that often is attorney-client privileged, neither Marty nor Miscavige are attorneys, and there’s no indication (nor does CSI allege) that this information was conveyed to an attorney or that an attorney’s advice was even sought. Discussions about legal strategy aren’t automatically attorney-client (or even the more narrowly construed work-product) privileged. The line gets perhaps fuzziest in paragraphs 35 & 36, but even there Marty is reporting on factual assertions made by the attorneys, not advice given by them.

But the far larger, more structural problem with CSI’s motion to disqualify is that Marty isn’t an employee of Ray Jeffrey, he’s a witness. CSI skates right past this crucial distinction, elaborating extensively as to Marty’s history with Scientology while ignoring Marty’s lack of an employer-employee relationship with Jeffrey. The cases cited by CSI indicate their hope that the judge will liken Marty to a legal assistant, but each of those cases are distinguishable in that the conflict-causing employee was an employee of the firm that the party was seeking to disqualify.

To take CSI’s argument to its logical end, no ex-employee with sensitive, damaging information concerning legal strategy could ever be used against their former employer. But we know that’s not the case — there are even laws protecting whistleblowers. The bottom line is that Scientology already has a remedy at their disposal for all the harms alleged in its motion: quit whining about Marty and sue him.

Thanks for that analysis, Scott. Also attached to the church’s motion is a lengthy set of exhibits which harken back to two previous cases Ray Jeffrey handled against Scientology. In the most recent of those, a lawsuit filed by former church private eyes Paul Marrick and Greg Arnold, the church had also filed a motion to disqualify Jeffrey, and on similar grounds — objecting in that case to Marrick and Arnold talking with reporters about their top-secret activities as Scientology’s spies. The church also refers to the way Jeffrey handled the defense of Debbie Cook, a former church executive who was sued by Scientology. But in each case, the church settled those lawsuits and, we suspect, paid out huge sums. So for them to come whining now that Ray Jeffrey didn’t play fair rings pretty hollow.

Although CSI is asking for this matter to be heard on Thursday, we’re not sure enough notice was given. Judge Waldrip will already be dealing with the request by Miscavige and the Religious Technology Center (RTC, Scientology’s nominally controlling entity) to be let out of the lawsuit. And Thursday and Friday are also set for the hearing on Monique’s request to convert a temporary restraining order into a temporary injunction, which would prevent surveillance or harassment of her throughout the duration of the lawsuit.

We expect testimony by Monique and other witnesses on those days, but we also expect a few more surprises before things get started on Thursday morning at the Comal County courthouse.


Narconon’s Insurance Woes Could Also Screw the People Suing Narconon?

This morning, our talented journalistic colleague Pete Combs at WSB-Radio in Atlanta is reporting about Narconon Georgia’s insurance woes, which we told you about last week — Narconon is being sued by the Evanston Insurance Company and Western World Insurance. But Pete and WSB-TV’s Jodie Fleischer smartly advance the story by interviewing Georgia state insurance commissioner Ralph Hudgens, who has some dire words for the people suing Scientology’s drug rehab system in a class-action lawsuit. If the insurance companies are allowed to bail on Narconon, those plaintiffs might be left out in the cold.

Pete sent us two of the stories he’s airing this morning on WSB Radio…



Posted by Tony Ortega on September 10, 2013 at 07:00

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