Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 159 1 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA 2 CASE NO. 00-5682-CI-11 3 4 5 DELL LIEBREICH, as Personal 6 Representative of the ESTATE OF LISA McPHERSON, 7 8 Plaintiff, 9 vs. VOLUME 2 10 CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS 11 JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S., 12 Defendants. 13 _______________________________________/ 14 15 16 PROCEEDINGS: Defendants' Omnibus Motion for Terminating Sanctions and Other Relief. 17 CONTENTS: Testimony of John Merrett. 18 DATE: May 23, 2002. Afternoon Session. 19 PLACE: Courtroom B, Judicial Building 20 St. Petersburg, Florida. 21 BEFORE: Honorable Susan F. Schaeffer, Circuit Judge. 22 REPORTED BY: Lynne J. Ide, RMR. 23 Deputy Official Court Reporter, Sixth Judicial Circuit of Florida. 24 25
160 1 APPEARANCES: 2 MR. KENNAN G. DANDAR 3 DANDAR & DANDAR 5340 West Kennedy Blvd., Suite 201 4 Tampa, FL 33602 Attorney for Plaintiff. 5 6 MR. LUKE CHARLES LIROT LUKE CHARLES LIROT, PA 7 112 N East Street, Street, Suite B Tampa, FL 33602-4108 8 Attorney for Plaintiff 9 MR. KENDRICK MOXON 10 MOXON & KOBRIN 1100 Cleveland Street, Suite 900 11 Clearwater, FL 33755 Attorney for Church of Scientology Flag Service 12 Organization. 13 MR. LEE FUGATE and 14 MR. MORRIS WEINBERG, JR. and ZUCKERMAN, SPAEDER 15 101 E. Kennedy Blvd, Suite 1200 Tampa, FL 33602-5147 16 Attorneys for Church of Scientology Flag Service Organization. 17 18 MR. ERIC M. LIEBERMAN RABINOWITZ, BOUDIN, STANDARD 19 740 Broadway at Astor Place New York, NY 10003-9518 20 Attorney for Church of Scientology Flag Service Organization. 21 22 MR. THOMAS H. MCGOWAN MCGOWAN & SUAREZ, LLP 23 150 2nd Avenue North, Suite 870 St. Petersburg, FL 33701-3381 24 Attorney for Stacy Brooks. 25
161 1 APPEARANCES: (Continued) 2 MR. BRUCE HOWIE 3 5720 Central Avenue St. Petersburg, Florida. 4 Attorney for Robert Minton. 5 6 ALSO PRESENT: 7 Mr. Rick Spector Ms. Sarah Heller 8 Mr. Ben Shaw Mr. Brian Asay 9 Ms. Joyce Earl Ms. Donna West 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
162 1 THE COURT: All right, continue, Mr. Moxon. 2 MR. MOXON: Okay. Thank you, your Honor. 3 BY MR. MOXON: 4 Q Didn't Mr. Minton send you to Europe in March of 5 2001? 6 A No. 7 Q Were you in Europe in March of 2001? 8 A I believe I was. 9 Q Weren't you there on behalf of Mr. Minton? 10 A No. I was traveling with Ms. Brooks. And I 11 believe Mr. Minton joined us there. 12 Q What? 13 A I was traveling with Ms. Brooks. And I believe 14 Mr. Minton joined us there. 15 Q Okay. During this trip in Europe did you have any 16 dealings with the financial affairs -- 17 THE COURT: That thing will have to be shut 18 down. 19 (A discussion was held off the record.) 20 THE COURT: Go on ahead. I didn't know what 21 you said. 22 MR. MOXON: My voice is soft, anyway. 23 BY MR. MOXON: 24 Q Did you have any dealings whatsoever as to 25 financial affairs for Mr. Minton while you were in Europe in
163 1 the spring of 2001? 2 A No. 3 Q For LMT? 4 A No. 5 Q Did you ever talk to Heldal-Lund yourself? 6 A No. 7 Q Had any communications with Heldal-Lund? 8 A I don't think I have. 9 Q Did you make any notes of this conversation you 10 had with the anonymous person that called you on the phone 11 that you arranged this intricate transfer of funds to 12 Clambake with? 13 A I wouldn't characterize it as intricate. But the 14 answer is no. 15 Q No notes at all, either that you used to give him 16 the information, either? 17 A That is correct. 18 Q So you memorized Heldal-Lund's phone number then 19 in Norway? 20 A No, I had Heldal-Lund's phone number written down 21 in a matchbook or something. 22 Q Matchbook? You didn't have any other notes? You 23 never talked to this man again? 24 A No. 25 Q Did you download the messages on the Internet,
164 1 these chat channel messages where you met this anonymous 2 person? 3 A No. 4 Q What was his Internet name? 5 A I don't recall. 6 Q Did you ask him his name? 7 A No. 8 Q Why not? 9 A No reason to. The point of involving him was to 10 put an anonymous contact between Mr. Heldal-Lund and the 11 source of the funds. 12 Q Who told you there had to be this anonymous 13 contact? 14 A I believe it was Mr. Minton, or Mr. Minton and 15 Ms. Brooks, said that the people who were providing the 16 money were not willing to be identified as assisting people 17 who were the targets of Scientology activities and wished to 18 be protected. 19 Q Well, you knew it was Mr. Minton's money, didn't 20 you? 21 A No. 22 Q Never knew that? 23 A I do now, based on what the Judge told me. 24 Q So today is the first time you ever heard of it? 25 A Yes.
165 1 MR. DANDAR: Asked and answered. 2 THE COURT: Sustained. 3 BY MR. MOXON: 4 Q Who made up this name the "Fat Man"? You? 5 A Yes. 6 THE COURT: I'm sorry, at the end of that did 7 you say "you"? 8 MR. MOXON: Yes. 9 BY MR. MOXON: 10 Q These transfers from Europe were immediately after 11 your return. Correct? 12 A I don't know. 13 Q Well, tell me when you were in Europe in the 14 spring of 2001. 15 A I don't recall. I was there in -- oh, in February 16 or March. I was there again in the end of May or the first 17 of June. And I was there again in July. 18 Q You were there the whole second half of March, 19 weren't you? 20 A I may have been. 21 Q Do you remember the hearing in Paris on 22 March 13th? 23 A I remember a hearing in Paris. Yes. 24 Q Okay. You stayed several weeks after that, didn't 25 you?
166 1 A Not several weeks, I don't think. 2 Q Let me show you a document, see if it will refresh 3 your recollection. 4 MR. MOXON: If I may approach. 5 THE COURT: You may. 6 BY MR. MOXON: 7 Q This is a document that was produced by the Bank 8 of America pursuant to a subpoena some months ago. And it 9 shows a transfer, on April 10, 2001, in the amount of 10 $299,790 from Operation Clambake to LMT. 11 Does that refresh your recollection whether or not 12 you were working on this while you were in Europe right 13 before that transfer came in? 14 A Let me disabuse you of your deceitful statement. 15 I have not said that I lacked recollection as to whether I 16 was working on this while I was in Europe. I said that I do 17 not recall how long I was in Europe or when I returned. I 18 did not work on any financial matters related to Mr. Minton 19 or the LMT while I was in Europe. 20 Q Where were you when you received this phone call? 21 Where was the phone booth? 22 A In Jacksonville. 23 Q Near your home? 24 A Not particularly. A couple miles away. 25 Q Have you ever made any notes of any of these
167 1 transactions? 2 A What transactions? 3 Q Transactions of the $300,000 sent in to your 4 client through Operation Clambake? 5 A I had no involvement in the transactions 6 themselves. 7 THE COURT: If you mean about the phone call, 8 he's already indicated he didn't make any. 9 BY MR. MOXON: 10 Q Did you give this person you spoke to on the phone 11 LMT's bank account number? 12 A No. 13 Q How did anyone know what account to transfer it 14 into? 15 A As I testified earlier, after the individual 16 contacted Mr. Lund and then contacted the LMT, Mr. Lund and 17 the LMT placed themselves in direct communication and 18 transferred that information. 19 Q So you instructed the anonymous guy to tell 20 Heldal-Lund to contact LMT to -- to receive the money? 21 A No -- 22 Q Well, correct me. 23 A I instructed the individual to ask Mr. Heldal-Lund 24 if he would be willing to accept a transfer of funds to be 25 forwarded to the LMT, and if Mr. Heldal-Lund was agreeable,
168 1 the individual was to contact the LMT and tell them that 2 Mr. Lund would be handling a transfer of funds from people 3 in Europe to the LMT, and that -- and I don't remember which 4 side was supposed to initiate direct communication, but that 5 they were to get in communication with one another and 6 exchange whatever details were necessary. 7 Q It's your understanding that Heldal-Lund then 8 called into LMT and said he was willing to do that? 9 A I don't know whether he called the LMT, or the LMT 10 called him. 11 Q At any rate, there was some communication between 12 Lund and LMT prior to the transfer, is that right? 13 A Yes. I believe so. 14 Q And prior to the money going to Heldal-Lund then, 15 correct? 16 A I believe so. 17 Q So there wouldn't be any reson for Heldal-Lund to 18 contact the police if he received money into his account 19 without his knowledge, would there? 20 A I have no idea what you're talking about. 21 Q Well, there would be -- based on what you told me, 22 there would be no conceivable reason that you can see why 23 Heldal-Lund would have contacted the Norwegian police and 24 told them that some money appeared in his account, isn't 25 that right?
169 1 A I -- I don't know of any reason why he would ever 2 call the police in any country. 3 Q Okay. Did you inform Mr. Dandar that Mr. Minton 4 was going to plead the Fifth to questions about money 5 transfers -- 6 A I don't believe so. 7 Q -- in his deposition in September of 2001? 8 A I don't believe so. 9 Q Did you have any communication with Mr. Dandar 10 about what Mr. Minton should not be testifying to? 11 A No. 12 Q Never? 13 A No. 14 Q Do you recall -- 15 A Well, I take that back. Other than chewing the 16 fat and saying, you know, there is no way in hell he's going 17 to discuss his personal finances. But not in terms of 18 giving notice or asking for direction or seeking input. 19 Q So you had conversations with Mr. Dandar, chewing 20 the fat, where you told him that Mr. Minton is not going to 21 be giving any testimony about financial matters? 22 A I'm sure I did, among many other things. 23 Q How were you going to prevent Mr. Minton from 24 testifying about financial matters? 25 A Mr. Minton had indicated that he was not going to
170 1 testify about it, that he would decline based on relevance, 2 which I believe was appropriate, and then subsequently he 3 determined he was going to plead the Fifth with respect to 4 financial matters. 5 Q So you did tell Mr. Dandar then he was going to 6 plead the Fifth? 7 A No. 8 Q Well, what -- you told Mr. Dandar that he was just 9 going to assert relevance to refuse to testify? 10 A What I told Mr. Dandar was in the course of 11 ordinary conversation discussing what was going on with the 12 case, discussing principally, I guess, my annoyance at the 13 absurd overbreadth of the discovery that Scientology was 14 being allowed to pursue, that he wasn't going to talk about 15 that. 16 Q Well, on what basis could he refuse to testify 17 about the matters that he had already been ordered to 18 testify about? 19 A I don't -- 20 Q Other than relevance? 21 A Mr. Moxon, I realize you are mostly here making 22 assumptions in an attempt to mislead me or the Court, but I 23 don't know when it occurred with respect to any order to 24 testify. I simply corrected my testimony to make it clearer 25 that Mr. Dandar and I have talked a lot.
171 1 Q About Mr. Minton's testimony? 2 A No. About many things. And I am sure, in the 3 course of that discussion, Mr. Minton's intentions or past 4 behavior with respect to what he would answer in depositions 5 came up and was discussed. 6 Q Okay. Prior to the September deposition, that is 7 what I would like you to focus on, you had a conversation 8 with Mr. Dandar about that deposition. Correct? 9 A No. 10 Q Okay. So -- so no conversation at all? 11 A None that I recall. 12 Q When was the conversation where you told them, 13 "Don't worry, Minton is not going to talk about any 14 financial matters"? 15 A I would really appreciate it if you would stop 16 fabricating things while you are questioning me. 17 Can you point to a place in the record where I 18 have made such a statement? 19 Q Did you tell Mr. Dandar -- 20 THE COURT: I think he covered what he said. 21 He's really not going to change it. So move on to 22 your next area of inquiry. 23 BY MR. MOXON: 24 Q All right, do you recall Ms. Brooks' deposition in 25 August of 2000 before Judge Beach?
172 1 A Not specifically. 2 Q Well, it was the deposition where there was the -- 3 the first time there was discussion about the Heldal-Lund 4 moneys. 5 A Uh-huh? 6 Q The one where you told -- allegedly told 7 Ms. Brooks you were upset about her testifying falsely about 8 something. 9 A Yes? 10 Q Okay. By the way, does that happen very often 11 where you have a client who -- I mean, that is pretty 12 unusual to have a client give false testimony in deposition 13 where you are representing them. Right? 14 A Yes. 15 Q And was that upsetting to you to have that happen? 16 A Yes. 17 Q And you took her out in the hallway and 18 woodshedded her and told her she should not be doing that. 19 Right? 20 A No. I spoke to her at the next break. 21 Q Okay. But you claim you don't have any idea what 22 it was she said that was so -- 23 A I haven't reviewed the deposition. I don't know 24 which it was. 25 Q Do you have any clue as to what the subject matter
173 1 was? 2 A No. Except that I immediately recognized it as 3 something to which I believed she should have simply refused 4 to answer based on relevance and then litigated it. 5 THE COURT: You know, I hate to tell you-all 6 this, but I have got to know what it is Ms. Brooks 7 lied about -- that he said she lied about. I need 8 to know whether she fixed it or not, or whether it 9 is one of these areas that she's recanted. 10 I don't have Ms. Brooks' testimony. This man 11 can't seem to remember anything about what it was 12 about. So I suspect we'll have to have him back, 13 and get the depositions to him and let him look 14 through them so we can find out what it is. 15 This is important. Her credibility is at issue 16 in this hearing. I don't have it. 17 MR. WEINBERG: Our problem, we don't know what 18 he's talking about. 19 THE COURT: I don't, either. But somebody has 20 all of Ms. Brooks' deposition and could compile them 21 all and give them to this man. He can read them. 22 Because these things are long. And he can find it 23 for us. 24 MR. MOXON: Maybe that is a good idea. Maybe 25 we should just give it to him and he can come back.
174 1 That is fine with me, your Honor. 2 THE COURT: Until somebody knows what it might 3 have been, can give it to him. As I said, I don't 4 have it. I don't have her deposition. I can't help 5 in any way. So -- 6 MR. MOXON: Okay. We can provide them to him. 7 In fact, I have a copy of the deposition I can give 8 him now and he can take it and look at it. 9 THE COURT: All right. If you have it, 10 let's -- let's let him see it. 11 MR. MOXON: Well, I mean, read the whole 12 thing -- 13 THE COURT: Well, he might be able to look at 14 the back, and if it is one of those that has -- 15 MR. MOXON: Let me go on and see if I can get 16 through the rest of this. 17 THE COURT: All right. 18 BY MR. MOXON: 19 Q In any event, at her deposition on August 15 do 20 you recall there was a motion for a course of sanctions that 21 was filed against LMT for destruction of records and refusal 22 to comply with discovery orders? 23 A No. 24 MR. MOXON: I don't think I need to make this 25 an exhibit, your Honor. I would like to show it to
175 1 the witness to refresh his recollection. 2 BY MR. MOXON: 3 Q August 22, 2001, a motion to compel LMT to return 4 to deposition. Do you remember that? 5 A Not specifically. 6 THE COURT: This was your client, wasn't it? 7 THE WITNESS: Has your Honor seen the court 8 file in this case? 9 THE COURT: No. I have a whole room full of 10 stuff. So I know it must be huge. 11 BY MR. MOXON: 12 Q This was served by you via telefax, and also a 13 copy of it was hand-delivered for you at the Lisa McPherson 14 Trust. 15 A It was not served by me, by any means. 16 Q What? 17 A It was not served by me, by any means. 18 Q Are you saying you never received this? 19 A No. You said it was served by me. 20 Q Served upon you, Mr. Merrett. 21 A Correct. 22 Q Thereafter, records were removed from LMT, weren't 23 they? 24 A Not that I'm aware of. 25 Q After I filed this motion?
176 1 A Not that I'm aware of. 2 MR. MOXON: Your Honor, I have part of a video 3 I would like to show. I'll have some questions. 4 I'll stop in between. The video is not long. Most 5 of my questions come in between. 6 I have a copy of the video for the record. 7 What is the next exhibit? 8 THE CLERK: 127. 9 MR. MOXON: That would be Exhibit 127. 10 BY MR. MOXON: 11 Q You talked earlier about a camera placed out in 12 the back of Watterson Street pointed toward the back door of 13 LMT. Do you remember that? 14 A Yes. 15 Q In fact, there had been a number of videos that 16 had been used in the appearance before Judge Penick, 17 correct? 18 A I don't know. 19 Q Okay. I would like to show you part of this 20 exhibit, which is a video of -- starting on August 24, see 21 if you can identify the people carrying these boxes out of 22 LMT. 23 THE COURT: August 24 of what date, please? 24 MR. MOXON: 2001. This is two days after I 25 served my motion for contempt on LMT for destruction
177 1 of records and for not producing records. 2 THE WITNESS: I'm sorry, who is testifying to 3 the date? 4 THE COURT: I just asked him when it was. 5 THE WITNESS: Well, I -- okay. 6 __________________________________________ 7 (Video with no accompanying audio is played.) 8 BY MR. MOXON: 9 Q I mean, tell me if you can identify -- see that -- 10 who that person is. That is Jeff Jacobsen, isn't it? 11 A I don't know. I can't tell. 12 Q You want to come around here so you can see it 13 better? 14 This is Jeff Jacobsen and Dee Phillips walking out 15 of LMT? 16 A I recognize Ms. Phillips. That could be 17 Mr. Jacobsen. 18 Q That is Jesse Prince's car, that big Cadillac, 19 that she's opening? 20 A I believe so. 21 THE COURT: That is 8/27, at least on the 22 video. Is that right? 23 MR. MOXON: That is right. The first one was 24 the 24th. The second little clip in this section is 25 the 27th.
178 1 Your Honor, the camera you are seeing here 2 is -- is stuck on the side of the Church building, 3 the dining hall, you heard about earlier. 4 And this awning that is coming out to the left 5 side of the picture is the back entrance of LMT. 6 This is Watterson Street in Clearwater. Right 7 from the vantage point of the camera is the edge of 8 the -- the edge of the Church property. 9 BY MR. MOXON: 10 Q This next clip is August 28. That is Dee Phillips 11 again, correct? 12 A It appears to be. 13 Q And that's their other car, her and Jesse's other 14 car, that Jeep Cherokee? 15 A It could be, yes. 16 Q Putting more banker's boxes in the car? 17 MR. DANDAR: It's a single box, for the record. 18 MR. MOXON: Mr. Dandar is correct. It's a 19 single box. 20 You can stop the video. 21 THE COURT: Of course, we don't know whether it 22 is records or what it is, it's a box being put in 23 the car. 24 MR. MOXON: We don't know what it is, but we 25 had set a hearing for August 29th, which was the day
179 1 after that. And on August 29th we had this hearing 2 before Judge Beach. Judge Beach orally ruled, in 3 part -- 4 THE WITNESS: I'm sorry, is this a question? 5 THE COURT: Not yet, I don't think. 6 MR. MOXON: I just have an excerpt of this 7 hearing, your Honor, before Judge Beach, which is 8 Exhibit Number -- 9 THE CLERK: 128. 10 MR. MOXON: -- 128. 11 MR. DANDAR: Judge, the problem with this line 12 of questioning by Mr. Moxon is there is no 13 foundation or predicate laid that this has anything 14 to do with the estate of Lisa McPherson. What the 15 trust does and what the trust did with discovery 16 orders would be a separate matter. And unless he 17 connects it to me or the estate, we're wasting a 18 great deal of time. 19 THE COURT: Well now, Mr. Dandar, again I told 20 you that you need some help here if you don't 21 understand the relevance. 22 They are trying to do just that, and there is a 23 lot of evidence that has come in where they're 24 trying to link you to LMT, they are trying to link 25 you to Bob Minton, they are trying to link you to
180 1 Stacy Brooks, you to Jesse Prince. They are trying 2 to make you all one big group. 3 If they are successful in that, they may be 4 successful in some of their requests. I can't very 5 well stop them from putting on their evidence and 6 then making their argument. 7 MR. DANDAR: All right. That is -- okay. 8 THE COURT: They may or may not be correct. 9 They may or they may not succeed. They may not have 10 anything. I mean, I have got to kind of let it in 11 until I can see, you know, what it is. And then 12 they'll make their argument and you'll make yours. 13 But, in the meantime, I really can't keep this 14 out. One of the allegations is that you-all are 15 connected and that evidence was destroyed after 16 court orders were told to keep it. So that is the 17 relevance. 18 BY MR. MOXON: 19 Q Mr. Merrett, you were present at the hearing on 20 August 29th before Judge Beach. Correct? 21 A Yes. 22 Q And Mr. Dandar was also present? 23 A I believe he was. 24 Q In fact, you were sitting together at the table on 25 your side of the room. Right?
181 1 A I don't know. Customarily, people representing 2 Scientology sat on one side of the room. People who were 3 not representing Scientology sat on the other side of the 4 room. 5 Q At Page 113 of the deposition -- 6 THE COURT: It wouldn't be a deposition. 7 MR. MOXON: Excuse me. Correct, your Honor. 8 BY MR. MOXON: 9 Q Of the transcript of the hearing, Judge Beach 10 ruled: "The trust is not to dispose of any records in any 11 form of recording, any form, computer, video, whatever form 12 there may be that's in its control, directly or indirectly, 13 until further order of the court. 14 "Insofar as the videos are concerned, if there is 15 any recording by photograph or otherwise I want those 16 produced in full. If the videos are on a computer or any 17 other way, I want them produced in full by February 7th." 18 You see, at line 15, Judge Beach indicates that if 19 this is not complied with satisfactorily, that he's going to 20 consider ordering an independent examiner to examine the 21 records of the trust? 22 THE COURT: If you have a question, ask it, 23 please. 24 BY MR. MOXON: 25 Q Did you have any discussion with Mr. Dandar about
182 1 these orders or the need to preserve these records? 2 A No. 3 Q At the hearing did you just leave and didn't talk 4 to him at all? 5 A I don't know whether that is the case. 6 Q Okay. Now, there was a subsequent written order 7 that was issued as to this hearing, also. Do you remember 8 that? 9 A Yes. 10 Q September 5th? 11 A Yes. 12 THE COURT: You can take this down now. Are 13 you done with this? 14 MR. MOXON: Actually, I have more coming up, 15 your Honor. 16 123 is next? 17 THE CLERK: 129. 18 MR. MOXON: 129. We'll mark as Exhibit 129 -- 19 MR. FUGATE: May I approach the clerk, make 20 sure certain exhibits are here? 21 THE COURT: You may. 22 MR. MOXON: -- an order dated September 5th 23 from Judge Beach arising out of this hearing. This 24 is the one that you saw earlier today, your Honor, 25 indicating in Paragraph 3 that LMT was not to
183 1 dispose of any records in any form of recording, 2 basically the exact language of his oral ruling, and 3 also that Paragraph 4, that LMT shall produce all 4 videos in its possession or control of witnesses in 5 this case on September 7. 6 BY MR. MOXON: 7 Q Did you receive that order, Mr. Merrett? 8 A Yes. 9 Q Were your clients aware of that order? 10 A Yes. 11 Q And did you have any discussions with Mr. Dandar 12 to get any advice from him with respect to compliance with 13 the order? 14 A No. 15 Q Or scope of the order? 16 A No. 17 MR. MOXON: You can start this again. 18 BY MR. MOXON: 19 Q Did you advise -- did you advise any of the LMT 20 staff that until that order on September 5 was signed, that 21 they could remove records? 22 A No. 23 Q Did you advise them at all about the need to 24 maintain all their records -- 25 A Yes.
184 1 Q -- after September 5? 2 Who did you talk to? 3 A I advised at least Ms. Brooks, and whoever -- 4 whoever else was in the front office, on the day of the oral 5 pronouncement, that everything had to be preserved from that 6 point forward. 7 Q Didn't you tell them that until the order was 8 signed, they could do whatever they wanted to do? 9 A How many times do you intend to ask that question? 10 THE COURT: Until I tell him he can't ask it 11 again. 12 THE WITNESS: I would appreciate that, your 13 Honor. 14 THE COURT: Well, not this one. I think this 15 is a different question. 16 A No, I did not. 17 MR. MOXON: Okay. Start the video. 18 THE COURT: If it weren't so late, I would 19 remind you, sir, this is not really for you -- I 20 mean, you're the lawyer used to making objections, 21 but right now you are the witness. 22 THE WITNESS: I would ask then the Court be 23 vigilant as to these repetitive questions in an 24 attempt to protect me from them. 25 THE COURT: I'll do the best I can.
185 1 BY MR. MOXON: 2 Q The next clip will be a September 10, again, it 3 will be Jeff Jacobsen carrying out boxes five days after the 4 entry of the order instructing LMT not to dispose of any 5 records of any recording in any form. 6 Do you know who that person is carrying out boxes? 7 A No. 8 Q That is Jeff Jacobsen with the big bags, isn't it? 9 A I don't know. 10 THE COURT: It looks like suitcases there, 11 counselor. 12 BY MR. MOXON: 13 Q Jeff Jacobsen is an employee of LMT -- or he was 14 during 2001? 15 A Right. 16 Q And 2000? 17 A I don't know. 18 Q Jeff Jacobsen was the librarian of LMT, 19 responsible for their files, correct? 20 A No. 21 Q The next clip is September 24th. 22 A That is the problem with compound questions. He 23 was the librarian. He was not responsible for filing. 24 Q Thank you. 25 So September 24, two weeks after the -- almost
186 1 three weeks after the order was signed, we have a number of 2 boxes coming out of LMT and being loaded into a Fed Ex 3 truck. 4 That is Jesse Prince that just walked out of LMT 5 behind the Fed Ex employee? 6 THE COURT: Well now, look, you are going to 7 have to ask him questions. You can't testify, 8 counsel. 9 BY MR. MOXON: 10 Q Did you notice Jesse Prince walking out, 11 Mr. Merrett? 12 A No. 13 MR. MOXON: Would you back it up. 14 BY MR. MOXON: 15 Q Did you see Jesse Prince walking back in just now? 16 A I saw -- 17 MR. DANDAR: It there was apparently something 18 edited from the tape -- 19 A It could be Jesse Prince. I don't know. 20 BY MR. MOXON: 21 Q Do you know where these bankers boxes were being 22 shipped? 23 A Number one, they are not all the same type of box, 24 so they can't all be banker boxes. 25 Number two, no, I don't know.
187 1 MR. MOXON: Stop the video for a moment. 2 THE COURT: So you-all know, the date that you 3 have got up here are dates -- up in the top were 4 dates that you have got posted at the bottom. If 5 you are going to try to prove that, it isn't just by 6 putting it up there. 7 MR. MOXON: I understand, your Honor. We'll 8 have a person who was responsible for making these, 9 for recording these, come in and authenticate this. 10 THE COURT: All right. 11 BY MR. MOXON: 12 Q On September 25 an emergency motion was filed to 13 preserve records before Judge Beach in light of the evidence 14 that we have just shown you. 15 Do you remember that emergency motion, 16 Mr. Merrett? 17 A Yes. 18 MR. MOXON: Would you mark as Exhibit 130 a 19 copy of the emergency motion requesting the 20 appointment of a special master to examine the 21 records following Judge Beach's admonition the 22 following week. 23 BY MR. MOXON: 24 Q Do you see this was also hand-delivered on LMT for 25 you, as well as telefaxed to you? Do you recall that, Mr.
188 1 Merrett? 2 A I see that it is so alleged. 3 Q Now, did you tell anyone at LMT that it was okay 4 to take any of the boxes out before this order was signed? 5 A No. 6 Q Did you tell Ms. Brooks that? 7 A I beg your pardon? 8 Q Did you tell Ms. Brooks that until the order was 9 signed, it was not necessary to comply with it, that is -- 10 that is, until an order was signed with respect to the 11 emergency motion for September 25th? 12 A Do you consider her to be a person affiliated with 13 the LMT? 14 Q Yes, sir, I do. 15 A Then the answer would be the same as the answer to 16 the question about persons affiliated with the LMT. 17 THE COURT: It would have been a lot faster if 18 you had just said "no" and we could have moved on. 19 BY MR. MOXON: 20 Q In any event, you'll see on this next clip on 21 September 25th more boxes are leaving via Fed Ex truck. And 22 I'm representing -- and we'll have the fellow come in and 23 authenticate this -- that the time of that is 3:51 p.m. Do 24 you see the top is 15:51? This looks like -- I can't tell 25 how many boxes, this looks like four more boxes, is this
189 1 right, Mr. Merrett? 2 A I don't know. 3 THE COURT: It looks like four, to me. 4 BY MR. MOXON: 5 Q Do you know what was in these boxes, Mr. Merrett? 6 A No. 7 Q Were you at LMT at that time? 8 A I don't know. 9 Q Okay, on September 26, notice of a hearing was 10 served, and it is noted, as we indicated in Exhibit Number 11 130, the hearing was set for 4 o'clock on September 29th. 12 Here -- here is -- right before the hearing that 13 is September 27 -- 14 That is Jesse Prince, right? Or is that Mark 15 Bunker? 16 A I don't know. 17 MR. DANDAR: With nothing in his hands. 18 MR. MOXON: Are you able to back that up? 19 THE COURT: I did not see anything in his 20 hands, whoever -- 21 MR. MOXON: He was walking sideways. 22 THE COURT: Well, I'm telling you, counselor, I 23 did not see anything in his hands. 24 MR. MOXON: You can't back it up? 25 A That looks like Mr. Bunker's car.
190 1 BY MR. MOXON: 2 Q All right. That is Dee Phillips again? 3 A Yes. 4 THE COURT: Ms. Phillips has a box under her 5 arm. 6 BY MR. MOXON: 7 Q She's loading a box into her car? In Jesse's car? 8 And that is Jeff Jacobsen with two more boxes, 9 correct? 10 A That is Jeff or Jesse. 11 THE COURT: Well now, that looks like a 12 Caucasian male. 13 THE WITNESS: Then it would be Jeff. 14 THE COURT: Maybe I'm wrong but -- 15 MR. MOXON: It is. You are right, your Honor. 16 BY MR. MOXON: 17 Q That is Jeff Jacobsen -- is that who it looks 18 like, to you? 19 A As between those two, yes. 20 THE COURT: For the record, we know Mr. Prince 21 is an African American. 22 MR. MOXON: Yes. 23 BY MR. MOXON: 24 Q This next clip on September 28 will be, again, 25 people walking out, kind of holding their boxes sideways,
191 1 but I don't know what that was about, other than it appeared 2 to be people carrying -- but this is Dee and Jeff Jacobsen 3 again. Correct? 4 THE COURT: I can't say that she has a box, to 5 tell you the truth. Whatever it was, she was able 6 to put it in one hand. There was a box in the 7 gentleman's hand, one. 8 BY MR. MOXON: 9 Q All right. I'll represent, again, we'll 10 authenticate it. But this is at 15:17 or -- or that would 11 be 3:17 on the 28th. 12 THE COURT: It will have to be authenticated. 13 MR. DANDAR: Could we have Mr. Moxon explain 14 what the "alarm" flashing in the bottom left corner 15 is every time someone walks out of the Lisa 16 McPherson Trust? 17 MR. MOXON: Yes, it's a motion detector in the 18 guard booth. We can stop the video here. Stop it. 19 This is -- I'll answer the question and tell 20 what is on the shot. 21 MR. DANDAR: I just want the record to show 22 there is an "alarm" word that appears every time 23 someone comes in or out of the Lisa McPherson Trust, 24 which means the Church of Scientology is focusing 25 its motion beam on property that it does not own or
192 1 control. 2 MR. MOXON: There have been -- as you are 3 aware, your Honor, there is an injunction ordered by 4 Judge Penick because a lot of people have been 5 coming out of the Lisa McPherson Trust there, and 6 they were enjoined from coming down that sidewalk at 7 that -- at that point. 8 So, absolutely right, there was an alarm that 9 went off in the guard office when somebody would 10 come from LMT over toward the Church, at a place 11 where they are enjoined from coming. 12 THE COURT: Well, there wasn't anything to 13 enjoin them from coming out any place where they 14 have been coming. 15 MR. MOXON: No, but if they come further -- 16 THE COURT: Well, the alarm has gone off and 17 they have not been coming further. 18 MR. MOXON: At any rate, it is just a screen, 19 it goes off -- shows it on the screen. It goes off 20 in the booth there, so they know -- 21 THE COURT: In fact, it goes off whenever 22 somebody comes outside of the LMT, doesn't it? 23 MR. MOXON: Yes, it just goes on the screen. 24 It's not an actual alarm, you realize. 25
193 1 BY MR. MOXON: 2 Q In any event, there was a hearing that started -- 3 THE COURT: You were purposefully filming 4 everybody that went in and out of the LMT, weren't 5 you? 6 MR. MOXON: That is right. Absolutely right. 7 There was an incredible amount of harassment, 8 intimidation, threats. I can go on and on, you 9 know -- 10 THE COURT: I just really wanted an answer to 11 that. I didn't ask for an explanation. I didn't 12 say there was anything wrong. I just wanted to 13 know, if the alarm was not going off and somebody 14 was getting close to the church property, or it was 15 going off when somebody was walking out of LMT -- 16 MR. MOXON: Okay. 17 THE COURT: -- in these pictures. I don't 18 know, there might be other pictures where something 19 is different. But in these pictures, it appears the 20 alarm -- the "alarm," that thing on the bottom, you 21 will have to have somebody authenticate, I don't 22 even know what that means. 23 MR. MOXON: We'll have somebody come in to 24 authenticate -- 25 THE COURT: But what I see down in the bottom,
194 1 "alarm," it appears to be going off when somebody 2 walks outside the door of LMT. 3 MR. MOXON: Okay. 4 THE WITNESS: Your Honor, do you mind if I put 5 this cough drop in my mouth? 6 THE COURT: Absolutely not. I don't mind if 7 you drink water, use cough drops. You can't have my 8 M&Ms, though. This late in the day, I need my 9 sugar. 10 MR. DANDAR: Would you like peanut butter 11 crackers? 12 THE COURT: No, thank you. Not as long as I 13 have my peanut butter M&Ms. 14 MR. MOXON: Just so it is clear, this is just 15 on the screen. It is not an actual alarm that goes 16 off. 17 THE COURT: I understand. What it probably 18 does is alert the machine to start recording. I 19 don't know. 20 MR. MOXON: Okay. At any rate, a hearing then 21 began at 4 p.m. in front of Judge Beach, right, 22 actually just shortly after this was all going on, 23 on September 28th. 24 Next in order, ma'am, is 131. 25 THE WITNESS: Wait a minute. Was the hearing
195 1 on the 28th, or 29th? 2 MR. MOXON: 29th. 3 THE WITNESS: I thought you said it was noticed 4 for the 29th. 5 MR. MOXON: I misspoke. It's the 28th. 6 THE COURT: So the hearing hasn't taken place 7 yet? 8 MR. MOXON: No, the hearing will be in 20 9 minutes from this incident of the boxes coming out. 10 This will be Exhibit 131. 11 THE COURT: Is that 15:34? Is that what it 12 says up there? 13 MR. MOXON: Yes, your Honor. 14 THE COURT: And the hearing will take place at 15 16:00? 16 MR. MOXON: Well, it will be 26 minutes. 17 BY MR. MOXON: 18 Q You were at this hearing, weren't you, Mr. 19 Merrett? 20 A Yes. 21 Q And Mr. Dandar was there, also? 22 A I don't know. He's listed on the appearances. 23 Q If you'll note at Page 16 of this memorandum, 24 there is a discussion about the videos of Mr. Bunker. 25 And it states: "The videos --" this is argument
196 1 by church counsel, by me, at the time. "These video files 2 are another source of some substantial concern. You'll 3 recall from the testimony of Ms. Brooks that she allowed 4 Mr. Bunker to take the videos away from LMT and he had them 5 in his possession. He may have them in his possession, he 6 may not have them in his possession. We don't know." 7 Again at Page 13 we raised argument we need to get 8 these videos, particularly those that might be in 9 Mr. Bunker's possession. 10 Do you remember that, Mr. Merrett? 11 A Not particularly. I mean, it's in the transcript. 12 Q Do you recall, now that you have seen the 13 transcript? 14 A Not particularly. 15 Q Starting at line 16, Page 44, the Court again 16 orders that these materials be preserved -- excuse me, at 17 the bottom of Page 43 the Court orders the materials be 18 preserved until the special master can examine these 19 records. 20 Specifically, it indicates: "There is ample 21 evidence to demonstrate that there is complete reluctant by 22 LMT to follow the orders of these courts. And that in and 23 of itself, this justifies the Court to preserve these 24 materials until there can be an inspection of them." 25 Then, at Page 46, the Court specifically orders
197 1 that it applies to any employees of LMT, too. 2 Do you remember that, Mr. Merrett? 3 A It is in the transcript. 4 Q Do you remember that occurring? 5 A Not particularly. 6 Q Well, did you tell anyone at LMT that this had 7 happened, that the Court had ordered that all of the 8 property, whether it's in the custody of LMT's employees or 9 agents or anybody else, be preserved and not go anywhere? 10 A Yes. 11 Q Okay. Now, at this point who possesses these 12 videos? 13 A I believe at this point, I did. 14 Q These were ordered to be produced by September 7, 15 weren't they? 16 A No. What was ordered to be produced by 17 September 7 were the LMT videos. And if I recall correctly, 18 if that is the right deposition, that is the deposition in 19 which the CDs were produced containing all of the videos off 20 the website. 21 Q And the videos that you now have in your 22 possession which you claim are Mark Bunker's, are these the 23 original videos that were ordered to be produced, original 24 unedited videos? 25 A They are not videos ever ordered to be produced.
198 1 Q Are they the original unedited videos taken by 2 Mark Bunker while he was working at LMT? Yes, or no? 3 A That can't be answered yes or no. 4 Q Are you denying that the videos that you took out 5 of LMT were videos that were taken by Mark Bunker, or LMT 6 employees at LMT? 7 A Well, you compounded the question up again. Can 8 you -- 9 Q Can you answer it? 10 A -- ask it once more in a relatively 11 straightforward manner? 12 THE COURT: Frankly, I'm just letting this 13 fellow go. I wouldn't normally do this. I really 14 wouldn't. By now, I would have been really beside 15 myself. But I'm just going to let this go this 16 time. So just do the best you can. 17 MR. MOXON: Okay. This is why we had Judge 18 Beach at the depositions because -- 19 THE COURT: Well, no, it really isn't that. 20 Normally, I wouldn't put up with this for a minute. 21 I am allowing it in this case for reasons that ought 22 to be obvious to all concerned. Apparently, they 23 are not, because I see the same behavior occurring. 24 I might suggest you just do the best you can to 25 answer his questions, compounded, uncompounded.
199 1 A The videotapes were taken by Mr. Bunker. 2 BY MR. MOXON: 3 Q Okay. 4 A Many of them, he tells me, were taken prior to the 5 formation of the LMT. Many of them, he tells me, are 6 personal family videotapes. 7 Some of them are videotapes that were taken during 8 the time of his association with the LMT. They include the 9 videotapes which he edited and created videotapes which -- 10 which were the source of videotapes that he created and put 11 on the LMT website, or created and turned into videotapes 12 for distribution by LMT. 13 Q By the way, Mr. Bunker doesn't have any family in 14 Clearwater, does he, or in the Clearwater area? 15 A Mmm, he has. Intermittently they have come down 16 here. 17 Q Do you possess any other videos, any other 18 unedited videos, which were taken by Mr. Bunker or any other 19 LMT employee? 20 A Other than what? 21 Q Other than what is in your possession right now? 22 A No. 23 THE COURT: Well, that is kind of a bizarre 24 question. 25 MR. MOXON: Okay.
200 1 THE COURT: Do you have any others, other than 2 the one you got? 3 MR. MOXON: That is a bizarre question. 4 BY MR. MOXON: 5 Q Could we please have these videos produced now, 6 Mr. Merrett? 7 A I was attempting -- Mr. Bunker's instructions to 8 me was he was willing to have them reviewed by the special 9 master, but he asked the review by the special master be 10 coordinated with him so he can sit with the master and tell 11 him what they are. Because as I said, he tells me that many 12 of them are family and personal videotapes, and many more of 13 them date from well before the establishment of the LMT. 14 And that is -- 15 MR. MOXON: Could we have -- 16 A That is essentially a -- a waiver of the bulk of 17 any privilege he might otherwise be asserting. 18 THE COURT: Mr. Merrett, I'm going to order 19 you, as the judge of this court, to produce those 20 videos immediately. And if you want to honor your 21 client's wishes, you go right ahead. 22 I believe these videos have been ordered over 23 and over and over, and I am now ordering you to 24 produce them. 25 When can you do that?
201 1 THE WITNESS: To whom? 2 THE COURT: Pardon me? 3 THE WITNESS: To whom? 4 THE COURT: To me. Right here. When can you 5 do that? 6 THE WITNESS: I can do that today. I would 7 like the opportunity to get in touch with Mr. Bunker 8 and explain to him what's going on and get 9 instructions from him. 10 THE COURT: You -- you may do that at your 11 peril. I want them delivered. I have decided they 12 should be delivered now. Where are they? 13 THE WITNESS: They are in my automobile, about 14 two blocks away. 15 THE COURT: Then I would suggest, if you have a 16 cell phone, you do a quick jig on the way to the car 17 to get them and bring them up here. And if you can 18 get your client en route, good for you. And if you 19 can't, and you don't want to bring them up here, 20 then tell me no. But I am ordering you to go get 21 them now and bring them to me. 22 THE WITNESS: Yes, ma'am. My client is in New 23 Hampshire. 24 THE COURT: I'm going to give you about 30 25 seconds, counselor, to get going to get those tapes.
202 1 THE WITNESS: Yes, ma'am. 2 THE COURT: Madam bailiff, would you go with 3 him, please? 4 THE BAILIFF: Yes, ma'am. 5 MR. DANDAR: Do you need a cell phone? 6 MR. MOXON: Could we take a break here? 7 THE COURT: Yes. Madam bailiff, when he gets 8 those, I'll have them delivered to my office. 9 THE BAILIFF: Yes, your Honor. 10 THE COURT: I'll keep them in custody until 11 tomorrow, because I'm not thinking right just at the 12 moment but for the fact that I want the tapes. 13 We'll be in recess until those tapes are in my 14 office, which will then be locked, and we'll decide 15 what we'll do with these tomorrow. But I'm not 16 waiting for Mr. Bunker -- I mean -- 17 MR. WEINBERG: What I would suggest, just for 18 identification, if he could initial and date each of 19 the tapes, then you can identify what he turned over 20 to you. 21 THE COURT: I'll initial them. 22 MR. WEINBERG: Or you can initial them. 23 (Whereupon, a recess was had from 6:05 until 24 6:25 p.m.) 25 _____________________________________
203 1 THE COURT: Now you want to put something on 2 the record, counsel? 3 THE WITNESS: Yes, your Honor. If it please 4 the Court, John Merrett on behalf of Mark Bunker. 5 I have surrendered to the Court, under seal, 6 the tapes which were given to me by Mr. Bunker to 7 hold in trust for safekeeping. They have been 8 delivered to the Court solely in obedience to the 9 Court's instanter order. 10 Mr. Bunker's position is that neither he nor 11 the tapes have ever been brought within the 12 jurisdiction of the Court, he not having been served 13 with a subpoena or other process in connection with 14 this matter. The tapes are privileged as 15 journalistic work product, specifically as raw 16 material from which finished journalistic products 17 have in the past been made and upon which future 18 creation of journalistic works are contemplated, and 19 as to those matters contained on the tape not 20 subject to the journalistic privilege, that those 21 matters are entirely irrelevant to the matters 22 before the Court. 23 He does not waive any of his protections or 24 privileges or the issue of in personam jurisdiction 25 or in rem jurisdiction over the tapes.
204 1 THE COURT: Is that it? Okay. 2 THE BAILIFF: Your Honor, the cleaning guy. 3 THE COURT: Okay. Don't clean my office 4 tonight, okay? And would you tell everybody not to 5 clean my office? 6 THE BAILIFF: Thank you, your Honor. 7 THE COURT: Would you do that? 8 THE BAILIFF: He has already been in and 9 cleaned it. 10 THE COURT: You have? Fine. Then if you have 11 cleaned it, that is even better. But I don't want 12 anybody from your crew to go in there tonight, okay, 13 after now. Okay? Thank you. 14 All right, there will be nobody going in my 15 chambers except for me. 16 We have one box, a singular box of what we 17 looked into, all of us together. It looks like some 18 little -- I don't know what those are, but -- 19 MR. MOXON: I think they are digital tapes. It 20 looked like maybe about 20, 25 digital tapes. 21 THE COURT: I don't know. We'll have the -- 22 whoever it was, Mr. Keane -- 23 MR. MOXON: Mr. Keane -- 24 THE COURT: -- who is the special master, 25 inventory them. But I'm saying we looked into one
205 1 box, I signed it, initialed it, Mr. Moxon has, 2 Mr. Dandar has, Mr. Merrett has. We put some black 3 tape across it to preserve the integrity of it. We 4 put it in my office, and hopefully in a secure 5 place. I have locked my doors. I have my purse. 6 When I finish here, I am leaving. 7 And I have instructed the cleaning people, 8 which are the only people I know who would go in my 9 office. And I have indicated to Mr. Merrett that I 10 would certainly allow Mr. Bunker to sit with the 11 hearing officer and tell the hearing master what are 12 the family tapes. 13 In my opinion, these tapes have been ordered to 14 be produced and they now have. If he has a matter 15 that he wants to raise before the Court, frankly, at 16 this hour of the night it is hard for me to make a 17 decision on that type of motion. If he wants to 18 file something -- Mr. Keane, I know, is in trial 19 before Judge Penick as we speak, he is not expected 20 to finish maybe not even this week -- so this is not 21 something that Mr. Keane is going to get to. 22 THE WITNESS: And, your Honor, if I may, I'll 23 let you know as soon as I can. My expectation will 24 be, with the Court allowing him to try to coordinate 25 with Mr. Keane to be present, that will probably be
206 1 the end of that matter. 2 THE COURT: But if it isn't, and he wants to 3 file something before me, I'll make myself 4 available -- I'll make myself available to him 5 tomorrow. Monday is a holiday. I'm going to have 6 hearings on this case Tuesday, Wednesday and 7 Thursday I will interrupt to hear from him or his 8 counsel, you or any other counsel that wants to file 9 a motion, and let me hear it. 10 It is just too hard to -- to contemplate and 11 think through everything you just said. But -- 12 THE WITNESS: Yes, your Honor. 13 THE COURT: But I have them, they are secure. 14 If they disappear -- oh, dear, I'm assuming they 15 will be secure, and that I'm certainly willing to 16 hear from him and/or his counsel, and I am willing 17 to let him sit, as I said, if you may convey that to 18 him. 19 THE WITNESS: Yes, ma'am. 20 THE COURT: To Mr. Keane -- and I'll convey 21 that to Mr. Keane that I afforded him that 22 privilege. 23 THE WITNESS: Yes, your Honor. Thank you. 24 THE COURT: You may continue. 25
207 1 BY MR. MOXON: 2 Q Do you know if any videotapes that have been 3 created at LMT since its inception have been destroyed? 4 A No. I don't believe they have. 5 Q Do you know if Mr. Bunker still possesses any 6 videotapes? 7 A I don't believe he does. Because his purposes in 8 giving them to me, my understanding he brought both the 9 videotapes at his house and videotapes he had as working 10 stock at LMT for me to take custody of. So I believe that 11 was all of the videotapes that he had created up to that 12 point. 13 Q Did Mr. Jacobsen take any tapes? 14 A Not that I know of. 15 Q What is your Nextel number at LMT? What number 16 did you use? 17 A I don't know. I never called it. 18 Q Did you ever tell anyone how to call you on a 19 Nextel line? 20 A No. The people who called me on it were the 21 people who had given me the phone, so they already knew it. 22 THE COURT: I don't know my telephone number on 23 that -- on that cell phone either. So ... 24 BY MR. MOXON: 25 Q Okay.
208 1 A I'm told Mr. Howie has it now. So he may be able 2 to tell you what the number is. 3 Q Do you still have the LMT Nextel phone? 4 A No. In fact, the last phone I had there was the 5 phone that I bought and had the number attached to. 6 Q When was that? 7 A Last summer sometime, I think. 8 Q So since last summer, you have used your own 9 phone, not the LMT Nextel phone, correct? 10 A I believe that is correct. 11 Q And approximately what time last summer? 12 A I have no idea. 13 Q Now, the orders to produce would be on tapes, 14 also, containing computerized information. I understand, 15 from the initial examination done by the computer expert, 16 that the day before the computer expert arrived, a large 17 number of files were deleted from the LMT computer systems. 18 Do you have any knowledge of deletion of files the 19 day before the inspection? 20 A No. 21 Q Do you know who was responsible for making those 22 deletions? 23 A No. 24 Q The computer expert also indicated that a scramble 25 program was run on some of the -- some of the computers, or
209 1 at least one of the computers, the day before he arrived. 2 Do you know who ran that scramble program? 3 A No. I know that there was a program called Scram 4 Disk which was installed on one or more of the computers, 5 which is some kind of resident encryption program. 6 Q This one was called Scram Disk? 7 A But that is all I know about it. I don't know it 8 is something that was run on a computer, I mean, other than 9 you can use it to encrypt a document. 10 Q Okay. So you don't know who ran the Scram Disk 11 program the day before the inspection? 12 A No. 13 Q You indicated that a number of hard drives had 14 been removed. Who did that? 15 A Actually, I did not indicate a number of hard 16 drives had been removed. I acknowledged, in response to a 17 question, that I was aware that had happened. 18 Q How did you find that out? 19 A I was told. 20 Q By who? 21 A I believe by either Mr. Brooks -- Ms. Brooks or 22 Mr. Minton, I believe. 23 Q When? 24 A At or about the time that they were being removed. 25 Q When? When was that?
210 1 THE COURT: If he doesn't know any more than 2 that, that is the best he can do. 3 BY MR. MOXON: 4 Q Approximately when was that? 5 A I don't know. 6 Q I mean, last year? 7 A Yes. 8 Q Last five months? 9 A Let's see. That I don't know. I know that it was 10 before the hearing on the motion at which Judge Beach orally 11 instructed that documents and computer files be preserved. 12 It was prior to that time. 13 Q And some -- two of the computers had new hard 14 drives put in. Right? 15 A I don't know. 16 Q What happened to the hard drives? 17 A I don't know. 18 Q Did you tell your clients that these hard drives 19 may not be removed, that they're the subject to a court 20 order? 21 A No. If you would listen, they were not subject to 22 a court order at the time they were removed. If you recall 23 what I testified to only moments ago, that was -- that that 24 was done prior to the time the Court made the oral 25 pronouncement, sometime beforehand.
211 1 Q So it was sometime in the fall of 2001? 2 A It was sometime within a week or two before the 3 hearing on that motion. 4 Q Of 2001? 5 THE COURT: I don't think he knows when -- I 6 think that is the problem. He doesn't know when the 7 motion -- 8 MR. MOXON: All right. 9 THE COURT: -- occurred. 10 BY MR. MOXON: 11 Q Obviously, you were aware of the prior court order 12 by Judge Moody and Judge Quesada with respect to the 13 information that had been requested from the LMT. Correct? 14 A Yes. 15 Q In fact, there is an order on May 15th, right, do 16 you remember that one? 17 A No. I don't. 18 Q And there is one on July 19th, from Judge Moody, 19 of 2000. Do you remember that one? 20 A No. I don't. 21 Q Do you remember the order of Judge Quesada in 22 November? 23 A Well, as I answered to -- 24 Q 2000? 25 A -- the first of these interminable questions, I
212 1 was aware there were orders entered regarding production of 2 computer materials. 3 Q So did you tell anyone that these orders had to be 4 complied with and you can't just rip out the hard drives in 5 the computers when they have these outstanding orders from 6 the judges? 7 A Yes, I did advise them that -- everybody at LMT 8 that the orders had to be complied with. 9 And I was informed that they had previously been 10 complied with, but -- that all of the materials that had 11 been requested which was contained on those computer hard 12 drives had previously been produced, to the extent that 13 there was anything within the scope of the requests that was 14 on the computers. 15 At that point, Scientology hadn't got around to 16 requesting everything on the hard drives. 17 Q Did you communicate with Mr. Dandar at all about 18 this situation of the hard drives? 19 A No. 20 Q How about the videos, the videos leaving, did you 21 talk to him about that? 22 A No. 23 Q You said you had many conversations with 24 Mr. Dandar about this case. What did you talk about? 25 A How things were going. How the day went in court.
213 1 What attorneys had made asses of themselves during the day. 2 How particular witnesses had done. Whether anything funny 3 had happened during the day. The volume of work that the 4 case was generating. Those kinds of things. 5 Q Did you forward any papers to Mr. Minton that you 6 received from Mr. Dandar that had been filed in this case? 7 A I kind of doubt it. I'm not sure, but I don't 8 think I did. Mmm, I think that what I did principally was a 9 fairly shabby job of insuring that copies of them were at 10 the LMT. 11 And I think Ms. Brooks forwarded -- of all of the 12 filings, things you filed, the things that Mr. Fugate filed, 13 everything that was filed in there. 14 I tried to have copies at the LMT, and any of them 15 that Mr. Minton was interested in, somebody else, I think 16 usually Ms. Brooks, would forward to them. 17 Q So you had kind of a case file at LMT. Yes? 18 THE COURT: That is kind of a vague term. I 19 don't know what a case file is. 20 BY MR. MOXON: 21 Q All right, you had a file of all of the pleadings 22 that were filed? 23 A I had a room full of pleadings. 24 Q Room full? 25 A Yes.
214 1 Q Who was responsible for maintaining those records? 2 A Different people at different times. Mmm, Dee 3 Phillips at one time. I think Jeff Jacobsen may have 4 organized them for me once. Mmm, there was somebody else 5 who -- oh, I think Ingrid -- I don't recall her last name -- 6 I think Ingrid worked with the files for me for a while. 7 Q What was her name? 8 A Ingrid. 9 Q You don't know her last name? 10 A That is what I said. 11 Q Did Mr. Minton utilize these files? 12 A Not personally, that I know of. 13 Q How much time did you spend at LMT, by the way? 14 Give me an average of how much time you spent during the 15 year 2001. 16 A I was generally down there just two or three days 17 a week, most weeks. 18 Q How about 2000? 19 A That I couldn't tell you. 20 Q Estimate? 21 A No. 22 Q Now, Mr. Dandar asked you about an E-Mail. I'm 23 afraid I didn't catch what exhibit number that was? 24 THE COURT: We all know what it is. So 25 whatever exhibit it is, I know what you're talking
215 1 about. 2 BY MR. MOXON: 3 Q I'm just going to show you another copy of it, 4 because I don't know where the exhibit is now. 5 MR. MOXON: Do you need a copy of it, your 6 Honor? 7 THE COURT: One is Plaintiff's 45, so that will 8 do. No, you don't need to submit it again. You 9 have one for defense and one for plaintiff. 10 MR. MOXON: All right. 11 MR. WEINBERG: It is Plaintiff's 45. 12 THE COURT: Right. I just said that. 13 BY MR. MOXON: 14 Q Did Mr. Dandar respond to this E-Mail? 15 A I don't know. 16 Q If he did, would you keep a copy of the response? 17 A No. 18 Q You occasionally E-mailed Mr. Dandar? 19 A Yes. 20 Q How often? 21 A Rarely. 22 Q How many times? 23 A I don't know. 24 Q And this E-Mail, the first sentence says: "A 25 short version of what's going on is this. The well is dry
216 1 as far as money goes. Jesse is going to withdraw as an 2 expert witness." 3 That mean that Mr. Minton was cutting off further 4 funds for Jesse to work on this case? 5 A No. Actually that was two sentences. 6 The first sentence is the short version of what's 7 going on is this. The well is dry as far as money goes. 8 Period. 9 Q That meant Mr. Minton was not providing further 10 money for the case, or for -- 11 A That -- 12 Q Is that right? 13 A That Mr. Minton did not intend to provide any 14 further money to Mr. Dandar. 15 Q You also indicated that Jesse is going to 16 withdraw, as a result of this, as an expert witness. Right? 17 THE COURT: He didn't say that, counselor. 18 MR. MOXON: I'm asking. 19 THE COURT: It says what it says. 20 BY MR. MOXON: 21 Q "Jesse is withdrawing as an expert witness in 22 light of that." 23 A No. 24 Q Were you saying that the first sentence and second 25 sentence have nothing to do with each other?
217 1 A No. I'm -- 2 Q What are you saying? 3 A I'm saying what you are attempting to fabricate is 4 not the case. The first statement is there is not going to 5 be any more money. The second sentence is Jesse is going to 6 withdraw as an expert witness. The two events are 7 unrelated. 8 Q The third sentence is, "Bob feels the case is way 9 out of control and is focused 100 percent on him and 10 specifically trying to put him in jail." 11 Is that related to the first or second sentence? 12 A It is related to the first sentence in that it was 13 my understanding that that feeling of Mr. Minton's was the 14 principal reason that he was no longer interested in 15 providing funding for the litigation. 16 Q Mr. Minton instructed you to send this E-Mail. 17 Didn't he? 18 A I believe he did. 19 Q He instructed you to send the E-Mail saying that 20 he's not going to permit Jesse Prince to be a witness in the 21 case any longer, correct? 22 A No. 23 Q Did Mr. Minton tell you something to the effect 24 that you were instructed to tell Mr. Dandar that Jesse 25 Prince would not be a witness in the case?
218 1 A No. 2 Q Mr. Minton instruct you to send this E-Mail in its 3 entirety? 4 A No. 5 Q Who did? 6 A No one. 7 Q Did you send it on Mr. Minton's behalf? 8 A Mr. Minton asked me to reply to Mr. Dandar, who 9 had asked me to find out what was going on. He had 10 complained that he was out of money, that he needed more 11 money, and he didn't have any place to get any, other than 12 Mr. Minton, and asked me to find out what was going on with 13 the case. 14 I believe he wanted to know why Mr. Prince was -- 15 Mmm -- what Mr. Prince was going to do with respect to his 16 status as an expert witness. 17 I asked Mr. Minton what was going on as far as 18 money, was he going to give Dandar any more money. 19 Mr. Minton said no. That is where the first sentence comes 20 from. 21 I asked Mr. Prince what was going on as far as his 22 status as an expert witness. He said he was going do 23 withdraw, that he was not going to appear, he wasn't going 24 to testify as an expert witness. And so that is where the 25 second sentence comes from.
219 1 The third sentence is a relation of Mr. Minton's 2 feelings, as he expressed them to me, about how the case was 3 going. 4 Q Stacy Brooks also told you that you were supposed 5 to tell Mr. Dandar that money is cut off and Jesse is 6 instructed he's not going to be an expert witness in this 7 case. Right? 8 A No. 9 Q So is it your testimony that neither Mr. Minton or 10 Ms. Brooks had anything to do with Jesse Prince's withdrawal 11 as an expert? 12 A Is that my testimony now? 13 THE COURT: That was not his testimony, 14 counselor. 15 BY MR. MOXON: 16 Q Well, let me ask you a direct question. 17 THE COURT: You are going to have to follow up 18 on the answer he gave you, which is he spoke to Mr. 19 Prince and asked him whether or not he was going to 20 be an expert witness. And he said no. 21 BY MR. MOXON: 22 Q Did Mr. Prince tell you that Ms. Brooks or 23 Mr. Minton told him he has to withdraw from the case? 24 A No. 25 Q Did Ms. Brooks tell you Jesse has to withdraw?
220 1 THE COURT: Asked and answered. And the night 2 is getting long, and so I'm not going to stand for 3 repeat questions. 4 MR. MOXON: Okay. 5 BY MR. MOXON: 6 Q And since Bob feels the case is way out of control 7 and is focused 100 percent on him and specifically trying to 8 put him in jail, was that part of the reason, per 9 Mr. Minton, why he was cutting off any funds from the case? 10 A Yes. I believe so. 11 Q And that, "He wants Dell to settle the case or 12 otherwise make it go away," it says? 13 A Yes. 14 Q And that was also because the case was focused on 15 him, Mr. Minton? 16 A That was certainly part of it. 17 Q At this time, neither Mr. Minton nor Ms. Brooks 18 were having any communication with the Church. Isn't that 19 right? 20 A Beg pardon? 21 Q Neither Mr. Minton nor Ms. Brooks were having any 22 communication with the Church about trying to get rid of the 23 case, were they? 24 A I don't know. They have been in communication 25 with the Church off and on for a number of years. And it's
221 1 my understanding that the most recent communication with the 2 Church was undertaken in a clandestine fashion, so I 3 wouldn't know whether or not they were in communication with 4 the Church. 5 Q Who told you that? Who told you there was some 6 clandestine fashion? 7 A No one told me that. No one knew about it, as far 8 as I know. No one -- I didn't know about it. 9 Q No one told you that? How did you come to that 10 conclusion if no one told you that? 11 A From Ms. Brooks having told me that they elected 12 to contact Mr. Rinder directly on, I think, a weekend. 13 Q Okay. You talked to Mr. Dandar about that issue, 14 didn't you? 15 A No. 16 Q Never talked to him -- 17 THE COURT: Asked and answered. 18 BY MR. MOXON: 19 Q Did you have a meeting with Mr. Dandar -- 20 A I don't -- 21 Q -- as you requested in the last sentence, "Can you 22 meet with me and Stacy this weekend to discuss this?" 23 A I don't think so. 24 Q Did you ever meet with Mr. Dandar and tell him 25 that Jesse is withdrawing as a witness?
222 1 A No. 2 Q Did you ever talk to Mr. Dandar about Jesse 3 withdrawing, ever? 4 A I don't believe so. 5 Q So you don't recall any response to this E-Mail at 6 all? 7 A That is correct. 8 Q Did you just leave and never talk to Mr. Dandar 9 again about the case? Or what? 10 A I have talked to Mr. Dandar since then about the 11 case and about other things. 12 Q Did you ever talk to Ms. Brooks regarding the 13 matters that are set forth in the E-Mail? 14 A Yes, I believe I did. 15 Q When was that? 16 A On an ongoing basis. 17 Q No part of this E-Mail then was based on an 18 instruction or request from a client. Correct? 19 A Other than Mr. Minton's request that I let 20 Mr. Dandar know that there wasn't going to be any more 21 money. 22 Q And this must have been alarming news to 23 Mr. Dandar. 24 A Well, by that point he had been without funds, as 25 he represented it to me, for some time. He had been in a
223 1 bad way. So I doubt that it was alarming so much as it was, 2 Mmm, I guess, additionally disheartening. 3 Q Okay. But do you have any knowledge of what it 4 was or what his reaction was at all? 5 A No. 6 Q Did you think it was unusual that you tell 7 Mr. Dandar that the funding he had for the case for two 8 years had been cut off and he made no communication -- 9 THE COURT: I'm not going to let you ask the 10 question again. He was asked and answered that. 11 It's late. Move on. 12 MR. MOXON: Okay. 13 BY MR. MOXON: 14 Q Mr. Dandar arranged for you to come here today, 15 didn't he? 16 A In the sense of telling me that the judge wanted 17 to hear from me, yes. 18 Q Did he ask you to come? 19 A No. He said the judge -- "I think you need to get 20 down here. I think the judge wants to hear from you. When 21 can you come?" 22 Q Nobody representing Mr. Minton asked you to come, 23 did they? 24 THE COURT: I think I told Mr. -- I don't know 25 what this is all about at this late hour. I told
224 1 Mr. Dandar to tell Mr. Merrett he could not appear 2 by phone, he was a member of the Florida Bar who had 3 been accused of some serious things by either the 4 Church and/or some witnesses, and I thought he 5 should come down in person so I could see and hear 6 from him. 7 MR. MOXON: Okay. 8 THE COURT: I asked Mr. Dandar to convey that. 9 So if he, in fact, conveyed I wanted him in person, 10 he did exactly what I asked him in open court in 11 your presence. 12 MR. MOXON: Very good. 13 BY MR. MOXON: 14 Q Mr. Merrett, do you consider depositions, per se, 15 to be harassments? 16 A Not per se. 17 Q Do you consider depositions in this case to be 18 harassment against your clients? 19 A I believe that Scientology has deliberately used 20 the discovery process in all its phases in an abusive manner 21 against my clients. 22 Q In this case? 23 A Yes. 24 Q Do you consider lawsuits generally to be 25 harassment?
225 1 A No. 2 Q This lawsuit? Okay. Are you -- you would like to 3 see the Church of Scientology put out of business, wouldn't 4 you? Destroyed? 5 A I would like to see the Church of Scientology 6 exposed. 7 Q And destroyed? 8 A The consequences of that are up to God. 9 Q Are what? 10 A Up to God. 11 MR. MOXON: Okay. I just have a few more 12 things, your Honor. 13 BY MR. MOXON: 14 Q Now, as to Courage Productions, the intention of 15 the movie The Profit was to, quote, expose Scientology, 16 wasn't it? 17 A Not that I know of. 18 Q You represented Courage Productions. Right? 19 A Correct. 20 Q Have you ever seen their web page or any of the 21 information put out about the movie? 22 MR. DANDAR: Compound question. 23 THE COURT: Sustained. 24 BY MR. MOXON: 25 Q Have you ever seen the web page or any information
226 1 put out about the movie? 2 A What web page? 3 Q The Profit web page. 4 A I think I saw it when it was a single page with 5 dead links. I don't think I have seen it since then. I 6 have seen -- seems like there was a web page that was sort 7 of a -- I don't know what you call it, a -- the organization 8 in the movie is called Sci Mind, and the web page was as 9 though you were actually going to the web page of this 10 fictitious organization. And I have seen that one in 11 some -- some detail. 12 As far as the one that was -- that was overtly 13 promoting the film, I don't think I ever saw it when there 14 was much of anything to it. 15 BY MR. MOXON: 16 Q I marked as Exhibit 132 -- 17 MR. DANDAR: May I have a copy? 18 MR. MOXON: No. I'm sorry, I don't have 19 another one. Mr. Lirot has it. 20 MR. DANDAR: Could I look over your shoulder? 21 MR. MOXON: Yes. Sure. 22 BY MR. MOXON: 23 Q -- a printout from a web page www.theprofit.org. 24 THE COURT: Where does it say that? 25 MR. MOXON: It says it at the bottom of the
227 1 page I have, your Honor. Yours looks different. I 2 have a reduced -- 3 MR. DANDAR: There are two different websites. 4 THE COURT: I have -- 5 BY MR. MOXON: 6 Q I represent this was printed off 7 www.theprofit.org. Do you know that to be the web page for 8 this movie? 9 THE COURT: I think he explained already what 10 he looked at and said he didn't think he looked at 11 anything else. And whatever he described apparently 12 isn't this. 13 MR. MOXON: Okay. 14 BY MR. MOXON: 15 Q Do you see the excerpts that are from this web 16 page which are clips from various media about the movie? 17 A Yes. 18 Q The first one says: "Played to packed house. It 19 appears to some as an expose of Scientology." 20 A Are you asking me if that is what your exhibit 21 says? 22 Q Right. 23 A Yes, I believe that is what your exhibit says, Mr. 24 Moxon. 25 Q Also says: "Controversial film on Scientology
228 1 makes its debut in the bay area." Right? 2 THE COURT: Why are we going through this? He 3 already said that -- well, he already said a lot 4 about the movie. Are you saying something 5 different? 6 MR. MOXON: No. In fact, your Honor, I can 7 just submit these to you independently. 8 THE COURT: Okay. What I have, it doesn't seem 9 to be complete because it's cut off and -- 10 MR. MOXON: Yes, it is just one part of a web 11 page. It's not the whole thing, obviously. One 12 page of a web page. The whole thing is many, many 13 pages. 14 MR. DANDAR: I object. 15 THE COURT: The page you gave me -- I don't 16 think you understand. The page you gave me is cut 17 in half. I can't read it. This part I can't read. 18 MR. MOXON: All right. Well, your Honor, what 19 I need to do, I need to submit cleaner copies of 20 these and we'll just file them with the Court. But 21 it's two pages on a web page. 22 MR. DANDAR: Your Honor -- 23 THE COURT: I don't think you can do that. And 24 he hasn't seen it. But what do you want me to do? 25 I don't even know if this is true. I have
229 1 learned, on these web pages, all kinds of goofy 2 things get printed, there are all kinds of zealots 3 and bigots. And I'm not going to take this and 4 assume this is true that CBS Channel 10 says this 5 because it is on some web page. 6 If you want to bring Channel 10 in and say they 7 said it, I believe them. 8 MR. MOXON: Your Honor, I don't actually need 9 to go over this with the witness, I just wanted to 10 get something to you before you see this video, 11 obviously. That won't happen today. 12 THE COURT: Okay. Well, tomorrow -- I'm not 13 going to watch it tonight. I'm going home and do 14 something else, not watch The Profit. 15 THE WITNESS: I urge you not to make it the 16 second or third movie of the evening or you won't 17 make it through it. 18 THE COURT: I'll try to make it the first. 19 THE WITNESS: No offense. 20 MR. MOXON: Okay, your Honor, I have no further 21 questions. 22 THE COURT: Any redirect? 23 MR. DANDAR: Yes. Yes. 24 THE COURT: Make it short, would you counselor? 25 We're all tired.
230 1 REDIRECT EXAMINATION 2 BY MR. DANDAR: 3 Q Okay. I was going to save this but I'm going to 4 use it now. 5 THE COURT: Save it for what? 6 MR. DANDAR: For Mr. Minton. But I want to use 7 it now since we already have some information -- 8 THE COURT: Look, if it's going to be anything 9 long and a bomb, save it for Mr. Minton -- 10 MR. DANDAR: No, I don't think so. I think -- 11 THE COURT: -- tomorrow. 12 MR. DANDAR: What exhibit are we at? 13 THE CLERK: 46. 14 MR. DANDAR: Let me mark it for you. 15 THE COURT: If we have a real zinger here, I 16 don't want to hear it. Save it. 17 MR. DANDAR: This is an E-Mail that I received 18 from Andreas Heldal-Lund. And it talks about the 19 "Fat Man." And I want Mr. Merrett to read it and see 20 if, according to him, there are any inaccuracies in 21 the facts on how the "Fat Man" came about. 22 THE WITNESS: Wait. If it's, according to me, 23 what? 24 BY MR. DANDAR: 25 Q I want you to read the E-Mail to yourself and let
231 1 me know if there is any inaccuracies in there about how this 2 transaction took place with Operation Clambake. 3 MR. FUGATE: Well, what is the predicate for 4 this, other than him saying it is something sent to 5 him? 6 MR. WEINBERG: On 5/21/02. 7 THE COURT: I think all he has said is that 8 this is -- he wants this witness to look at this and 9 see if there is anything inaccurate about what it 10 says. 11 MR. WEINBERG: But, your Honor, then I don't 12 think -- I think he can ask him questions, which 13 is -- 14 THE COURT: No. You know what? It's a little 15 bit like you and your stuff that you put up there 16 and you date it and then you say you're going to 17 authenticate it. 18 He wants this witness, while he's here, to read 19 this and see whether there is anything inaccurate 20 about it. 21 Kind of like he's going to lay the predicate 22 later. Just like you're going to lay the predicate 23 for those things. And if you don't -- 24 MR. WEINBERG: All right. So -- 25 THE COURT: And if he doesn't -- see?
232 1 MR. WEINBERG: Okay. I would object to the 2 document coming in without the predicate being laid. 3 But he can ask him the questions. 4 THE COURT: Well, did the tape come in subject 5 to being linked up? 6 MR. WEINBERG: I don't think -- 7 MR. MOXON: Yes, subject to being linked up. 8 THE COURT: Yes. So I suspect this can come in 9 subject to being linked up the same way. 10 MR. WEINBERG: But this is a different kind of 11 document. This is a document -- an E-Mail 12 supposedly from some guy in Norway. 13 MR. DANDAR: It's not some guy. It's is the 14 guy from Operation Clambake. 15 MR. WEINBERG: I know, but -- 16 THE COURT: Overruled, counselor. 17 A I reviewed it, Mr. Dandar. What is the question? 18 BY MR. DANDAR: 19 Q Is it accurate as far as the description of the 20 circumstances surrounding the "Fat Man" being involved, with 21 the anonymous donation going to Clambake, Clambake sending 22 it to the LMT? 23 A Yes. 24 Q All right. That is all. 25 Next question. Did the anonymous "Fat Man" -- you
233 1 don't know the identity of the "Fat Man." Correct? 2 A Correct. 3 Q And it was your -- did this person get paid to do 4 this? 5 A The "Fat Man"? 6 Q Yes. 7 A I beg your pardon (laughing). 8 No. Not so far as I know. And -- 9 THE COURT: You don't even know who it is. How 10 would he know if he got paid? 11 A So far as I know, his only involvement was three 12 conversations -- or conversations with three people: With 13 myself, with Mr. Heldal-Lund, and with -- with Ms. Brooks or 14 whoever it was at the LMT. 15 And none of us -- unless he identified himself to 16 Ms. Brooks or to Mr. Heldal-Lund, none of us knows who he 17 is. So I don't know of any way he could have gotten paid. 18 BY MR. DANDAR: 19 Q What if the "Fat Man" told Heldal-Lund at 20 Clambake, "You're going to get an anonymous donation and you 21 need to send it to XYZ Company," which was the "Fat Man, and 22 it never ended up at LMT? 23 Would that have happened the way you set it up? 24 MR. WEINBERG: Objection as to the form. 25 THE COURT: I'm going to allow it.
234 1 A Well, I don't think it could have, because the -- 2 well, the information that leads me to believe that is not 3 the case is only information from this E-Mail that I just 4 read. So as far as I know, it could have happened had this 5 individual been willing to lie to Mr. Heldal-Lund, and 6 Mr. Heldal-Lund been that gullible. 7 But, I mean, it appears that -- and obviously as 8 events turned out, that the communication was actually 9 established between Mr. Heldal-Lund and the LMT. So 10 Mr. Heldal-Lund knew where the money was supposed to go. 11 Now, I mean, I guess if somebody had said we're 12 routing it to the LMT via Hughes Electronics, send it to 13 Hughes Electronics, maybe he would have done it. I don't 14 know. 15 BY MR. DANDAR: 16 Q But what I want to know, do you know that after 17 Operation Clambake, Mr. Heldal-Lund called Stacy Brooks at 18 the LMT to confirm that he's ready to receive this anonymous 19 fund, did Stacy Brooks, you, or Mr. Minton, as far as you 20 know, contact somebody else to say, "Okay, now it's time to 21 send the anonymous funds to Operation Clambake"? 22 A Not so far as I know, except the judge has told me 23 that the money was Mr. Minton's. So I assume he had to call 24 somebody and tell them to send the money. 25 THE COURT: I don't really know if it was
235 1 Mr. Minton's. Mr. Minton has now testified it was 2 his money, so -- 3 THE WITNESS: Well, assuming that could be the 4 case, obviously he would have to do whatever he had 5 to do to get the moneys. 6 BY MR. DANDAR: 7 Q Real quick -- 8 THE COURT: I can't remember, did Ms. Brooks 9 also say it was his money? 10 MR. DANDAR: She knows now it is his money. 11 THE COURT: She knows now, and he told her. 12 But he had not told her at the time of her 13 deposition, so I gave her an opportunity to recant 14 that and she said, you know, she did not because, 15 frankly, apparently he didn't tell her the truth, if 16 it's the truth what he's telling us now. 17 MR. DANDAR: And, Judge, I know it's late but 18 you just reminded me, when I was questioning 19 Mr. Merrett before about a June 2000 deposition of 20 Ms. Brooks, there was one in June 2000, but the 21 Operation Clambake and anonymous money, that didn't 22 come up until the year 2001. 23 THE WITNESS: Well, as I told you, the -- I 24 have no idea of the number of depositions I have sat 25 in with Ms. Brooks and Mr. Minton. And I have been
236 1 taking you-all's word for when they were. 2 BY MR. DANDAR: 3 Q Okay. All right. Now, the tapes that are in the 4 judge's office from Mr. Bunker, did you ever review those 5 tapes? 6 A I never reviewed them. I never counted them. All 7 I know, they are tapes that Mr. Bunker gave to me to hold in 8 trust for safekeeping. 9 Q Okay. And -- 10 THE COURT: Make it fast, counsel. 11 MR. DANDAR: Last question. 12 THE COURT: I don't -- who cares? 13 MR. DANDAR: Last question. 14 BY MR. DANDAR: 15 Q While you were with Mr. Minton and Ms. Brooks and 16 the LMT as their counsel for almost two years, did 17 Mr. Minton appear, to you, to have any interest in the 18 wrongful death case? 19 A What do you mean by interest? 20 Q I mean, was he constantly on the phone with me, 21 meeting with me, talking about the case, wanting to know 22 every development in the case? 23 THE COURT: Gee, speaking about a compound 24 question. 25 MR. DANDAR: I'm answering his question.
237 1 A He -- he was certainly interested in what was 2 going on with the case, how the case was going, what the 3 outcome was. He and I discussed that quite a bit. 4 But other than the stuff that is all already a 5 matter of record where he testified at one point that the 6 funds he advanced were a nonrecourse loan either to you or 7 to the estate, I don't know which one it was, that was 8 payable out of the proceeds, that is the only sort of 9 interest, in a legal sense, that I was ever aware of that he 10 had. 11 But to answer your question, it was a matter of 12 interest to him. 13 MR. DANDAR: All right. That is all I have. 14 Thank you. 15 MR. MOXON: I think I just have one or two more 16 questions. 17 RECROSS-EXAMINATION 18 BY MR. MOXON: 19 Q Did you -- did you talk to Mr. Dandar about the 20 need for this affidavit that you -- 21 A About the need for what affidavit? 22 Q There is an affidavit marked as Plaintiff's 23 Exhibit 44, an affidavit of Robert Minton. 24 A Hang on. 25 Q Sent up to New Hampshire.
238 1 THE COURT: Is that outside of the scope of 2 redirect? 3 MR. DANDAR: Yes, it is. Objection. 4 THE COURT: Sustained. 5 MR. MOXON: Okay. Good night, your Honor. 6 THE COURT: You can tell it is late, can't you? 7 MR. MOXON: Yes. 8 THE COURT: Go ahead, if you have another one. 9 MR. MOXON: I don't. 10 THE COURT: All right. I have just one. I'm a 11 little confused, and maybe you have answered it. 12 Early on in your testimony, you were asked 13 about an agreement that Mr. Minton had talked about 14 on a radio show. 15 THE WITNESS: Yes, ma'am. 16 THE COURT: Do you know what I'm talking about? 17 THE WITNESS: Yes, ma'am. 18 THE COURT: I think we identified it here as a 19 secret agreement. 20 THE WITNESS: Yes, ma'am. 21 THE COURT: Okay. Did he ever discuss this 22 agreement with you? 23 THE WITNESS: To this extent, your Honor. I 24 was -- I was being asked to assist in maintaining, 25 as private, what was represented to me to be private
239 1 business that didn't have anything to do with the 2 facts of the case. Now, that included the financial 3 relationship between Mr. Minton and Mr. Dandar and 4 the estate case, that financial -- however many arms 5 it has, that financial arrangement. 6 And I was repeatedly perplexed, I could never 7 make sense, of why it was -- why it was so important 8 to keep it private, to keep, you know, whatever kind 9 of agreement there had been, whether it was the 10 agreement that money was going to go from the 11 lawsuit to the LMT or some other organization, or 12 whatever, or whether that was never the arrangement, 13 I could never figure out why it was important to 14 keep that private because I could never see anything 15 right or wrong with it, either way. I mean, if they 16 want to spend the money on malt liquor and 17 Cadillacs, that is okay. 18 THE COURT: If they want to give it to an 19 anti-cult organization, that is okay. 20 THE WITNESS: If they want to turn around and 21 give it to Scientology, that is okay. 22 And I did ask him. At one point I said to him, 23 "You know, the only reason that you're having the 24 trouble you're having now is you are shooting your 25 mouth off on the radio. Why in the hell did you say
240 1 that?" 2 His only response was, "I said it. That is 3 what I said. And that's it." 4 And it -- it was always represented to me, 5 including in affidavits I assisted Mr. Minton in 6 drafting, that there was no such agreement, that 7 there was no -- no particular -- Mmm, there was 8 no -- Mmm, guarantee. 9 THE COURT: Meeting of the minds? 10 THE WITNESS: Right, that that is what was 11 going to happen with the money. 12 But that is the discussion we had about it is, 13 one, it didn't exist. Two -- and the only answer I 14 ever got about why it was private is it was a matter 15 he regarded as intensely private. 16 And, you know, I'm a very private person. But 17 I think that well before the amount of aggravation 18 that caused him to start talking about it, it 19 wouldn't have mattered what it was, I would have 20 gone ahead and told him -- 21 THE COURT: So if you were his lawyer -- if you 22 were -- and he wanted to have an agreement with the 23 estate regarding the proceeds -- 24 THE WITNESS: Yes, ma'am. 25 THE COURT: -- you would have been quite
241 1 capable, I believe, of drawing up any such agreement 2 that might withstand some scrutiny? 3 THE WITNESS: Yes, ma'am. 4 THE COURT: Were you ever asked by him to draw 5 up an agreement? 6 THE WITNESS: No, ma'am. 7 THE COURT: Did you ever hear anybody talk 8 about an amount or percentage, or did you always 9 just hear these vague -- just vast amount, 10 substantial amount, bulk? 11 THE WITNESS: What I heard, your Honor, was the 12 transcript, I don't know which one, one of the radio 13 shows, because apparently he said it twice on the 14 radio, that there was this agreement. 15 Then I heard the allegations of the defendant 16 that this agreement had existed and -- that it did 17 exist, but that it -- or that it continued to exist. 18 And Mr. Minton told me that it didn't exist. 19 That was all that I knew of it. And because I never 20 get to brag about it, I would like to tell you I'm 21 capable of drafting a contract. 22 THE COURT: All right. So he certainly never 23 asked you to draw up some sort of agreement? 24 THE WITNESS: No, ma'am. 25 THE COURT: And however it was referred to on
242 1 the radio, in any of these depositions, anything you 2 have seen, did you ever hear anybody talk about any 3 type of what you might or I might perceive of as an 4 agreement? 5 THE WITNESS: Not as being one that existed. 6 As I say, I heard that radio talk -- I heard the 7 allegations made by the defendant and I heard the 8 statements from Mr. Minton that there was not an 9 agreement. 10 THE COURT: Okay. Even on the radio, as it was 11 expressed on the radio -- 12 THE WITNESS: It was pretty vague. 13 THE COURT: -- it was pretty vague. The bulk 14 of an amount, if there is a sufficient recovery, 15 if -- if this is paid, and if that is paid? 16 THE WITNESS: Yes, ma'am. 17 THE COURT: That is about as good as it gets, 18 isn't it? 19 THE WITNESS: That is as precise as any version 20 of it that I ever heard, either -- either from the 21 radio transcripts or being alleged. 22 THE COURT: So when -- when your clients said 23 in deposition, no, there was never any agreement, 24 that did not surprise you? 25 THE WITNESS: No, ma'am.
243 1 THE COURT: That was consistent with what he 2 told you? 3 THE WITNESS: Yes, ma'am. 4 THE COURT: Except what he said on the radio? 5 THE WITNESS: Yes, ma'am. And as I say, I 6 asked him about it. And he said, "Hey --" and, you 7 know, I was asked about the difference between the 8 way he writes on the Internet and the way he speaks 9 in deposition. And -- and -- Mmm, a little bit of 10 chain yanking would not have been out of character 11 on the radio. 12 THE COURT: You think it's possible that in 13 this case -- no, too late. I'm not going there. 14 THE WITNESS: Yes, ma'am. 15 THE COURT: I'll ask that of Mr. Minton, maybe, 16 myself. 17 But anybody need this witness any more? 18 MR. MOXON: A couple follow-ups on yours, your 19 Honor. 20 RECROSS-EXAMINATION 21 BY MR. MOXON: 22 Q You didn't represent Mr. Minton in 1998? 23 A No, I didn't. 24 Q You didn't represent Mr. Minton in 1999, did you? 25 A No, I didn't. I spoke to him once in 1999.
244 1 Q I think you said you came in to represent him just 2 a couple of days before his deposition May 24th of 2000, 3 isn't that right? 4 A It was whenever the motion for protective order 5 regarding that deposition was filed, it was within a day or 6 so of those. It may have been a couple weeks before -- 7 Q May 26th of 2000, as I recall. 8 A Well, yes, the depo was like the 24th or the 26th, 9 but I had filed a motion for protective order earlier. So 10 it would have been -- but it was in May. 11 Q So the agreement -- or the arrangement that 12 Mr. Minton posted on the Internet and talked about on the 13 radio and was talked about broadly all happened long before 14 you were representing Mr. Minton, right? 15 A If it happened, it happened long before I 16 represented him, long before I had ever seen him or even 17 heard of him. 18 Q So he didn't come to you to write up an agreement 19 that already existed, right? 20 A He never -- 21 THE COURT: There really isn't any need to go 22 through a whole bunch of stuff here. 23 MR. MOXON: I just wanted to clarify he wasn't 24 representing Mr. Minton at a time -- 25 THE COURT: He was representing him, however,
245 1 in May when Mr. Minton said, in a deposition, as 2 clear as a bell, there was no agreement. 3 MR. MOXON: Okay. 4 BY MR. MOXON: 5 Q However -- well, let me show you a page out of the 6 deposition, I'll read it to you, because I only have one 7 copy and I'll hand it to you. May 24, 2000, later in the 8 deposition. 9 THE COURT: Is this the same one where he says 10 no, then he says yes, then he says no, then he says 11 yes? 12 MR. MOXON: Well, this is a "yes." 13 THE COURT: Then I'll find the "no." 14 Go ahead. 15 MR. MOXON: Okay. Well, we have already seen 16 that one earlier from Mr. Dandar. 17 THE COURT: If you are going to ask him about 18 it, I'm going to ask him about the other one. Go 19 ahead. 20 MR. MOXON: Okay. 21 BY MR. MOXON: 22 Q So we are making reference to the exhibit which is 23 the -- 24 A I'm sorry, which exhibit is that? 25 Q Exhibit at the deposition, which is --
246 1 THE COURT: This is a posting? 2 MR. MOXON: I'm just giving you reference here. 3 THE COURT: Okay. 4 BY MR. MOXON: 5 Q Exhibit Number 26, which is a posting to the 6 Internet dated February 2, 2000: "Subject: The future of 7 the Lisa McPherson Trust." 8 I asked, "Did you make this post to the Internet? 9 "Answer: It looks like one of mine, yes. 10 "Question: --" 11 THE COURT: Where are you, counsel? 12 MR. MOXON: I'm on Page 424 of his deposition 13 of May 24, 2000. 14 THE COURT: Okay. 15 MR. FUGATE: Your page reference, your Honor, 16 is Page 239 to that deposition. 17 MR. MOXON: What? 18 THE COURT: I'm asking him where he's reading. 19 424? 20 MR. MOXON: Yes. 21 THE COURT: Okay. Go ahead. 22 BY MR. MOXON: 23 Q I said, top of Page 425, "At the top of the second 24 page of Exhibit 26 it states --" and then I get interrupted, 25 and then I go ahead, at line 11, "At the top of the second
247 1 page it states: 'The family of Lisa McPherson has given us 2 their full support and, as you know, promised to give the 3 vast majority of any settlement or award from trial to the 4 Lisa McPherson Trust.' Correct? 5 "Answer: That's correct. 6 "Question: And you got that information from 7 Mr. Dandar? Right? 8 "Answer: That's correct." 9 Were you present when those questions were asked 10 of Mr. Minton and he gave those answers? 11 A If the question and answer are reflected in the 12 transcript of a deposition which also reflects my 13 attendance, yes. I have no independent recollection of the 14 question or the answer. 15 Q You didn't make any effort to correct the record 16 at this point that there was, indeed, an agreement, Mr. 17 Minton believed he had an agreement that the Lisa McPherson 18 Trust would get money at the end of this case? 19 A Well, actually, I know this is going to be 20 terrible news for you, what I said after the answer was: "I 21 apologize, the preceding question -- I did not catch the 22 question, whether you were asking if the substance was 23 correct or if that was the statement that was made." 24 And I don't know what comes after that other than 25 Mr. Minton's answer, that that's the statement -- which I
248 1 assume is that's the statement I made. 2 Q I'll give you the next page. We continue. He 3 says: "I wrote that. 4 "Question: You wrote that? 5 "Answer: Yeah. 6 "Question: The information -- the basis for this 7 is from information you got from Mr. Dandar? 8 "Answer: That's correct. Yes. 9 "Question: No other source? 10 "Answer: Correct. 11 "Question: And you announced this to the world 12 then on the Internet, correct? Is that right? 13 "Answer: To all the world to read it." 14 A Okay. What is your question? 15 Q My question is you made no attempt to change or 16 correct anything on the record -- 17 THE COURT: Well, he already said he posted it 18 on the Internet. 19 MR. MOXON: My point is Mr. Merrett is now 20 asserting there was no agreement. And I think it's 21 pretty obvious -- 22 THE WITNESS: Let me make it clear -- 23 THE COURT: I understand it, counsel. 24 THE WITNESS: -- I don't know whether there was 25 an agreement or not.
249 1 MR. MOXON: Good. That is all I want to know. 2 THE COURT: But you can read that is about an 3 Internet posting. 4 THE WITNESS: Yes, ma'am. 5 THE COURT: You already told us that he -- he 6 sometimes exaggerates. 7 Let me read to you from the same deposition 8 about an agreement, this is on Page 238, the same 9 deposition where you attended, apparently, May 24 of 10 2000. 11 "Do you have any agreement of any kind with the 12 estate of Lisa McPherson? 13 "Answer: No. 14 "Does the Lisa McPherson Trust have any 15 agreement with the estate of Lisa McPherson? 16 "Answer: No. 17 "Question: Does the estate of Lisa McPherson 18 have any agreement with any family members? 19 "Answer: No." 20 Where is the other reference? It is even 21 clearer. Do you remember? 22 MR. DANDAR: Yes. 23 MR. LIEBERMAN: I remember some testimony on 24 391 to 394, your Honor, I think. 25 THE COURT: Let's look.
250 1 MR. WEINBERG: How can you remember that? 2 MR. LIEBERMAN: I may stand corrected. Let me 3 see. 4 MR. MOXON: That is exactly right, Page 392, 5 391 to 394, he affirms the agreement again. 6 THE COURT: If you don't mind, I think you are 7 done and I think it is my turn, and I'm looking for 8 what it is I want to look for, and I don't need you 9 to find it. I'm going to find it. 10 MR. DANDAR: 223, Judge. 11 THE COURT: I don't need your help, either. 12 MR. DANDAR: Oh, I'm sorry. I thought you 13 asked for it. I'm sorry. 14 THE COURT: Oh, yes, here it is. I knew I had 15 marked it. 16 "Question: Have you ever talked to Dell 17 Liebreich about what would happen to the hoped-for 18 proceeds in this case? 19 "No. 20 "Question: Have you ever had any discussion 21 with her about money coming to the Lisa McPherson 22 Trust? 23 "Answer: No. 24 "It never happened? 25 "Answer: No.
251 1 "Question: Have you talked to anyone in the 2 family about money coming for Lisa McPherson Trust 3 arising out of any hoped-for proceeds? 4 "Answer. No. No. 5 "Question: Have you talked to anyone in the 6 family about the potential proceeds in this case 7 going to a 'anti-cult' organization? 8 "Answer: No." 9 Did that seem fairly consistent with what you 10 had been told by your own client? 11 THE WITNESS: Yes, ma'am. And I think a big 12 part of what is going on is pure donative promises. 13 THE COURT: Yes. I know what happened. 14 Sometimes -- 15 THE WITNESS: I think Mr. Minton, being in 16 business, knows the difference between an agreement 17 and -- 18 THE COURT: Oh -- 19 THE WITNESS: -- "Hey, when I hit the lottery, 20 you are fixed, judge." 21 That is not quite the same thing when we have 22 an agreement where you will kick in for lottery 23 tickets and split the proceeds. 24 THE COURT: And having represented Mr. Minton, 25 was it your belief that he hoped that if there was a
252 1 big recovery, that -- 2 THE WITNESS: He would be paid back. 3 THE COURT: Well, number one, he was going to 4 be paid back from money he loaned to Mr. Dandar and, 5 number two, he hoped the family would honor what he 6 thought they were saying, which was they didn't need 7 a whole bunch of money -- I don't know how old these 8 folks are -- but they didn't need $80 million, which 9 were the figures floating around at the time, but he 10 kind of hoped they would contribute to the Lisa 11 McPherson Trust or something just like it so they 12 could fight Scientology forever and ever? 13 THE WITNESS: Yes, ma'am. And I can tell you 14 that he has both testified and told me he has lent 15 substantial sums of money in the same spirit, in the 16 hope that if the person gets a job or comes into 17 money or whatever, that it will be paid back, but 18 without getting a note, without having anything 19 enforceable. 20 MR. MOXON: I think I just have one last 21 question then. 22 BY MR. MOXON: 23 Q Do you recall, during the deposition, where -- 24 THE COURT: You have asked enough questions, 25 counselor. Thank you. You can point to me anything
253 1 you want to from the deposition. We really don't 2 need to hear from this guy any more. 3 All right, thank you very much for coming. You 4 may be excused. 5 THE WITNESS: Thank you, your Honor. 6 THE COURT: We're done for the day, and we'll 7 see you all tomorrow at 9 o'clock. 8 (WHEREUPON, court stands in adjournment at 7:20 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
254 1 REPORTER'S CERTIFICATE 2 3 STATE OF FLORIDA ) 4 COUNTY OF PINELLAS ) 5 I, LYNNE J. IDE, Registered Merit Reporter, certify that I was authorized to and did stenographically 6 report the proceedings herein, and that the transcript is a true and complete record of my stenographic notes. 7 I further certify that I am not a relative, 8 employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' 9 attorney or counsel connected with the action, nor am I financially interested in the action. 10 11 DATED this 24th day of May, 2002. 12 13 14 ______________________________ LYNNE J. IDE, RMR 15 16 17 18 19 20 21 22 23 24 25