What’s at stake in Tuesday’s San Antonio court hearing with Scientology’s former enforcer

On Tuesday morning, three attorneys who used to represent Monique and Mark “Marty” Rathbun are scheduled to go into a San Antonio courtroom and argue that the judge (who will be assigned to the case that morning) should order that the Rathbuns sit for sworn depositions and turn over a large number of financial records.

The attorneys — Ray Jeffrey, Marc Wiegand, and Elliott Cappuccio — filed a petition with the court in July, explaining that they had been fired “without cause” by Monique Rathbun in January 2016 while they were representing her in a harassment lawsuit she filed against the Church of Scientology in August 2013. After firing her legal team, Monique handled the lawsuit on her own for a few months before dropping it altogether in May 2016.

Since that time, her husband Marty Rathbun has used his website to attack many of the people who used to be his supporters as he spent years exposing Scientology’s abuses. Rathbun also denied that a cash settlement had been worked out with the Church of Scientology to end Monique’s lawsuit. (For an overview of Rathbun’s interesting arc from chief Scientology enforcer to church rebel and then back to church defender, please see our previous timeline.)

If there is an agreement involving compensation, because they were fired “without cause” Monique’s former attorneys would be entitled to a percentage since they had taken up the 2013 lawsuit on a contingency basis.

Jeffrey, in the petition he filed in July, indicated that he and his colleagues are prepared to present evidence in court which suggests that Marty Rathbun’s behavior since the firing indicates that the couple has worked out some kind of secret deal with the church, and that the lawyers therefore have a legitimate claim to part of it.

Rather than file a lawsuit, however, the attorneys are asking the judge to have the Rathbuns sit for sworn depositions first. As Jeffrey put it to us recently:

“I want some answers. We were winning an important case, our client fired us without any cause, and then dismissed the lawsuit. If anything of value was received from anyone associated with Scientology, we want to know. If not, we want to know that, as well. We have attempted to get answers informally, to no avail.”

For help understanding the legal basis of the petition and what’s likely to happen in court Tuesday, we’ve turned to our expert, a Texas litigation attorney who goes by the handle TX Lawyer. Here’s what he told us about what the Rathbuns are facing:

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This is a hearing to decide whether Monique Rathbun’s former attorneys are entitled to take depositions of Monique and Marty Rathbun and obtain documents from them under Texas Rule of Civil Procedure 202. This isn’t a full-blown lawsuit yet, just a proceeding to allow a potential plaintiff to obtain some limited discovery to determine whether grounds for a lawsuit actually exist. I have filed and defended Rule 202 proceedings several times.

In my experience, nearly all trial court judges grant Rule 202 petitions pretty much as a matter of course, assuming the petitioner has actually followed the procedural requirements of the rule. Most judges view these things as a good opportunity to determine whether or not there really is a claim to be asserted, without having to put both sides through a full-on lawsuit. Some of the Texas appellate courts have recently cracked down a bit on rubber-stamping the use of Rule 202, but they are still pretty well routine.

I could easily see a judge striking some of the document requests. Those are some really broad requests. If I were the Rathbuns’ lawyer, I would argue that the requests go well beyond whatever would be reasonably necessary to prove or disprove whether the Rathbuns received anything of value in connection with their now-dismissed lawsuit against David Miscavige and the various Church of Scientology entities. If the Rathbuns agreed to take the Church’s money, directly or indirectly, there are going to be receipts — maybe a settlement agreement or other contract, certainly wire transfer or other payment records. I can understand why Ray Jeffrey and his team are taking the broader approach, however, as if there really was a secret settlement, you obviously have to be concerned that steps were taken to keep it secret.

The Rathbuns do have the right to file a written response before the hearing. The fact that they have lawyered up with somebody as serious as Rich Reynolds probably indicates that they are going to fight this, not just run up a white flag and accept the Rule 202 discovery. That means there will probably be a written response to the petition, which could be filed at basically anytime before the hearing. Waiting to file until the last minute would not be at all unusual, as it gives the petitioner less time to form a reply to the respondent’s arguments, and it’s not like the judge who gets assigned to the hearing is going to spend more than a minute or two with the papers before the hearing anyway.

So that’s the basic procedure here. What’s probably going to be a lot more interesting at the hearing is what the attorneys have to say. Is Ray Jeffrey going to say anything about the “significant circumstantial evidence” referred to in the petition? Is Rich Reynolds going to take any kind of position about what’s going on with his clients? Will anything be said about whether the Church is paying Reynolds’ fees, or whether the Rathbuns are being reimbursed for them?

Fighting a Rule 202 application does not, by itself, indicate that there is anything in particular that is being hidden from the potential plaintiff. Once the litigation ball gets rolling, after all, you don’t know everything it’s going to roll over. Still, the position the Rathbuns take at this hearing is likely to be pretty telling.

If I were in Reynolds’ place and the Rathbuns were Joe and Jane Schmoe who hadn’t taken any money and hadn’t cheated their former lawyers out of a contingency fee, I would recommend negotiating narrower document requests and strict limits on the subject matter and time of the depositions. Alternatively, you could just make that argument to the judge, particularly if the petitioner has refused reasonable requests to narrow the scope. The goal would be to get in and out with minimal intrusiveness, so everyone can go on with their lives.

But if Joe and Jane Schmoe really were dirty on this — and they were forthcoming about that fact with me, which dirty clients often are not — I would recommend figuring out a way to get the dispute settled as quickly and favorably as possible. When money changes hands, there are just too many ways to prove it happened, including plenty of avenues that do not require the potential defendant’s cooperation. Even if the 202 petition were to be denied, the claimant probably already has something resembling a good faith basis to file a real lawsuit, which opens the floodgates of full discovery and third party subpoenas.

And if it’s something more complicated than just the existence or absence of a secret settlement, well, that probably means the response to the 202 petition is going to be complicated too. Suppose, for instance, that your client didn’t take anything to settle the previous lawsuit, but subsequently entered into some sort of personal services arrangement with the former defendant. Do you just acknowledge it and hope your client doesn’t get sued, or do you fight like hell to prevent disclosing the subsequent agreement because you know it will look ugly and the prospective plaintiff will be able to make an argument that it is a sham attempt to avoid paying a contingency fee? Or do you just sue the ex-lawyers for malpractice before the 202 hearing, so that at least you get to be the plaintiff in the lawsuit (which, yes, would be a real move that could actually happen here).

In other words, this could go just about anywhere. I’d advise people to listen more to what is being said than what the judge ends up ruling.

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Thanks very much for that help, TX. We look forward to Tuesday’s fireworks.

Since our last story about the Rathbuns and the petition by their former attorneys, the Church of Scientology has only increased its online war against Leah Remini’s A&E series, Scientology and the Aftermath, and we noted that one of the weapons they’re using is video by Marty Rathbun.

Beginning in June, Rathbun has been posting short video segments that feature him criticizing Remini, author Lawrence Wright, filmmaker Alex Gibney, and many of his former close Scientology colleagues, including Mike Rinder, Tom DeVocht, and Amy Scobee.

The church has seized on these videos and features them at a website that attacks Remini’s show. And recently, we noticed video segments were being tweeted by church accounts, such as this one:

 
On August 13, we emailed Rathbun, asking him about his videos being used this way by the Church of Scientology.

“Are they doing this with your permission? Are you being paid by the church for this use of your video?” we asked. He hasn’t responded.

 
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Chris Shelton talks to Melissa Paris

Says Chris: “This week I have a special interview with Melissa Paris, a former Scientologist and Sea Org member who grew up in the Cadet Org in England and endured an enormous amount of abuse both then and later after she joined the Sea Org. As people have seen in the last two episodes of Scientology and the Aftermath, the horrors of Scientology are not just its toxic practice of disconnection but also what happens to the children who never asked to be part of it in the first place, and our interview here hopes to continue exposing the vicious practices at the heart of the Sea Organization, supposedly the most ethical and elite corp of the ‘most ethical group on the planet.’ Yeah, not so much.”

 
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Posted by Tony Ortega on August 24, 2017 at 07:00

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BLOGGING DIANETICS: We read Scientology’s founding text cover to cover with the help of L.A. attorney and former church member Vance Woodward
UP THE BRIDGE: Claire Headley and Bruce Hines train us as Scientologists
GETTING OUR ETHICS IN: Jefferson Hawkins explains Scientology’s system of justice
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Other links: Shelly Miscavige, ten years gone | The Lisa McPherson story told in real time | The Cathriona White stories | The Leah Remini ‘Knowledge Reports’ | Hear audio of a Scientology excommunication | Scientology’s little day care of horrors | Whatever happened to Steve Fishman? | Felony charges for Scientology’s drug rehab scam | Why Scientology digs bomb-proof vaults in the desert | PZ Myers reads L. Ron Hubbard’s “A History of Man” | Scientology’s Master Spies | Scientology’s Private Dancer | The mystery of the richest Scientologist and his wayward sons | Scientology’s shocking mistreatment of the mentally ill | Scientology boasts about assistance from Google | The Underground Bunker’s Official Theme Song | The Underground Bunker FAQ

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