Kanabay Court Reporters; Serving West Central Florida Pinellas (727)821-3320 Hillsborough (813)224-9500 Tampa Airport Marriott Deposition Suite (813)224-9500 1 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 1 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: Argument re: Bill Franks Testimony. 18 DATE: June 12, 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
2 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. LEE FUGATE 10 MR. MORRIS WEINBERG, JR. ZUCKERMAN, SPAEDER 11 101 E. Kennedy Blvd, Suite 1200 Tampa, FL 33602-5147 12 Attorney for Church of Scientology Flag Service Organization. 13 14 MR. ERIC M. LIEBERMAN RABINOWITZ, BOUDIN, STANDARD 15 740 Broadway at Astor Place New York, NY 10003-9518 16 Attorney for Church of Scientology Flag Service Organization. 17 18 MR. MICHAEL LEE HERTZBERG 740 Broadway, Fifth Floor 19 New York, New York 10003 Attorney for Church of Scientology Flag Service 20 Organization. 21 22 23 24 25
3 1 MR. WEINBERG: If you give me one second, I 2 need to pull a document out. 3 THE COURT: Okay. 4 MR. WEINBERG: I'm ready when you are. 5 THE COURT: I'm ready. 6 MR. WEINBERG: The next witness apparently is a 7 man named Bill Franks. 8 Bill Franks was an executive in one of the 9 Churches of Scientology who left the Church of 10 Scientology in December of 1981 and has not been 11 back in the Church, or even as a public member of 12 the Church, since December of 1981. 13 He has had no involvement in the inner workings 14 of the Church of Scientology for 21 years or so. He 15 left in December of 1981 before the corporate 16 restructuring that you have heard about took place 17 in the Church of Scientology, which was the 18 restructuring that took place after the problems 19 that occurred, you have heard about the Guardian's 20 Office and all that, the problems in the '70s. 21 That restructuring actually took place shortly 22 after Mr. Franks left the Church of Scientology, so 23 that the corporate structure, particularly RTC, 24 which is the -- the organization that you have heard 25 so much about that Mr. -- Mr. Miscavige is the
4 1 chairman of the board on, didn't even exist at the 2 time that Mr. Franks left the Church of Scientology. 3 CSI, which is the mother church that you have 4 heard about, was actually incorporated three weeks 5 before Mr. Franks left in December of 1981. So 6 we're talking about there were major changes in the 7 corporate structure of the Church of Scientology 8 21 -- since Mr. Franks left 21 years ago. 9 The founder of the religion, L. Ron Hubbard, 10 was still alive at the time that Mr. Franks left 11 and, in fact, lived until, if I'm correct, 1986. 12 I'll be corrected if it was 1985 because I don't 13 remember exactly. But it was four or so years after 14 Mr. Franks left. 15 At the time Mr. Franks left, Mr. Miscavige was 16 21 years old. 17 After Mr. Franks left, there came a period of 18 time for a few years where he was a witness against 19 the Church of Scientology in the early cases that 20 arose out of what had happened in the '70s. There 21 were cases in Florida as I understand it, cases in 22 California and other parts of the country. He was a 23 witness for a few years. 24 And in 1986 he settled -- he never had a 25 lawsuit, but he settled with the Church and entered
5 1 into an agreement that you have heard something 2 about. 3 More importantly, Mr. Franks has absolutely no 4 personal knowledge with regard to any fact that is 5 the subject matter of this proceeding. He clearly 6 has no knowledge of anything that has to do with the 7 disqualification or the misconduct, which is the -- 8 what the evidentiary hearing is supposed to be 9 about. 10 If -- if I could hand up to your Honor, on 11 May 23rd, 2002 Mr. Franks sent a three-page letter 12 to Mr. Drescher, who is the -- who -- who was one of 13 the lawyers for the Church in California. 14 THE COURT: Have I seen this letter yet? 15 MR. WEINBERG: I'm not sure you read it. But 16 it's -- but it's important you should read it 17 because you'll see from it, if you take a minute to 18 read it, what I'm talking about. 19 THE COURT: Okay. 20 MR. WEINBERG: All right. So that when we got 21 this letter from -- that Mr. Drescher got from 22 Mr. Franks, it was startling to us that what 23 Mr. Franks was saying is that, A, "I dissociated 24 myself from the church for the last 20-plus years," 25 and --
6 1 THE COURT: Don't tell me what I just read now. 2 I just read it. 3 MR. WEINBERG: Okay. So that -- so that the 4 only thing Mr. -- Mr. Franks could possibly be 5 called for is to talk about something that had 6 occurred prior to December of 1981 in his 7 affiliation or association with the Church of 8 Scientology. 9 And -- and the only thing that that could be 10 related to is somehow -- somehow have to do with the 11 substantive proof that Mr. Dandar thinks or 12 considers that he might offer if he ever tries this 13 case with regard to the wrongful death count. 14 And that is precisely what this hearing should 15 not be about. And I think you said it the other 16 day: We're not here to try the wrongful death case. 17 To the extent that Mr. Dandar believes that 18 something that is 20 years old would ever be 19 relevant, it's something that should have been 20 disclosed long before this hearing. 21 Mr. Franks appeared on the scene, we'll show 22 you, we just got the notice in April, literally as 23 we were about to go into these proceedings. And if 24 he would have been disclosed earlier, he would have 25 been deposed, like Mr. Armstrong and Mr. --
7 1 Mr. Prince and Mr. Young and all of the other 2 anti-Scientologists. 3 So that if -- if I understand what the Court 4 said, if I understand what the summary judgment 5 process is all about, what should happen is that if 6 Mr. Franks does have something relevant, it ought to 7 be set forth in an affidavit, we should be given the 8 opportunity to depose him. And if, at the end of 9 that process, there is something that ought to be 10 heard by the Court, then the Court can hear it at 11 that point. 12 The first time Mr. Franks' name was ever 13 mentioned, if I could approach you -- 14 THE COURT: Well, how do I know what it is he's 15 being called for? 16 MR. WEINBERG: Well, that is sort of -- 17 THE COURT: I mean, I think there could be a 18 lot of things that are relevant to this hearing that 19 he might know about that are fairly insignificant 20 but relevant that you all could cross-examine him 21 with five minutes of a break between direct and 22 cross. So I don't know what he's being called for. 23 MR. WEINBERG: That is part of why I'm making 24 this presentation. It is a very unusual situation 25 for a case that is five years old, for the first
8 1 notice -- if I can approach you, I'll give you two 2 more documents. 3 This is the notice of plaintiff's expert on 4 Scientology which is dated April 12, 2002, and then 5 April 24, 2002 is -- where is it? 6 MR. LIEBERMAN: 44. 7 MR. WEINBERG: 44. I didn't bring my glasses 8 up here. So April 24, 2002, this is Mr. Dandar's 9 witness list. Number 44, Bill Franks. 10 THE COURT: All right. 11 MR. WEINBERG: Which meant that prior to 12 April 24 -- or, arguably, April 12, 2002 -- we had 13 never heard the name Bill Franks. So, therefore, 14 Bill Franks wouldn't have been deposed. 15 And, you know, although I can -- I can -- I 16 could predict what Vaughn Young or Jesse Prince or 17 other people would say if questioned here, I have no 18 understanding of what Mr. Franks could say that 19 would be relevant, except I have his letter where he 20 says he doesn't know anything. And I really think 21 that what is going to happen here is that what we're 22 going to have is a -- is a session where Mr. Franks 23 just vents about his experiences dating back 21 24 years about the Church of Scientology. And I don't 25 think this is the proceeding for that.
9 1 That is my -- and, therefore, what I said the 2 other day, I think it's appropriate that Mr. Dandar 3 or Mr. Lirot, whoever it is, make a proffer to the 4 Court exactly what this man is supposed to say so 5 that we have -- we don't have to spend all day 6 tomorrow listening to stuff that your Honor would 7 either deem irrelevant or deem something that should 8 be set forth in an affidavit, we get an opportunity 9 to cross-examine by deposition, like you would 10 normally do in a summary judgment. 11 That is my argument. 12 THE COURT: Okay. Well, I mean -- 13 MR. WEINBERG: Oh, actually, I had one 14 further -- I'm sorry, Mr. Lieberman had reminded me 15 of one legal thing. 16 If what Mr. Franks is being offered for -- I 17 guess we don't know until -- what we're told is for 18 some pattern of practice or business practice, that 19 sort of argument. 20 As I understand it, the -- if he were being 21 offered for that, then he wouldn't be offered as an 22 expert. That would be as a fact witness. That is 23 Rule 404 and Rule 406. 24 And as I understand the law in that -- and that 25 may have been -- I was out of the room, that may
10 1 have been what was handed up to you. I'm not sure 2 exactly what was handed up to you by Mr. Fugate or 3 Mr. Lieberman at the end. But as I understand and 4 I'm told by Mr. Lieberman the law is, is that in 5 order to -- in order to establish -- in order for 6 that kind of evidence to be relevant and admissible, 7 the pattern must be precisely related to the 8 circumstances and in a recent time period. 9 So -- and, you know, I guess there is some 10 flexibility as to recent. But under no 11 circumstances would 21 years be recent. So if that 12 is what he's being offered for, legally we believe 13 that it wouldn't be admissible under any 14 circumstances. 15 THE COURT: Well, I don't think anybody knew 16 about Ms. Yingling, yet you got to call her. I 17 don't know whether he has information or not. If he 18 doesn't, make your objection. 19 The deal is this is a hearing. You are trying 20 to get the case dismissed and Dandar thrown off the 21 case. He has a witness he wants to present, and I'm 22 going to let him, whether you have notice of it or 23 not. This is not a trial. 24 MR. WEINBERG: I wanted to make a record of our 25 objections. And I assume that tomorrow -- I don't
11 1 want to interrupt the flow, so to speak, but I 2 wanted -- but I also don't want to waive any 3 objection. I just wanted to make it clear that we 4 don't believe that there would be anything of 5 relevance or anything that could possibly be 6 admissible from somebody that had left that long 7 ago. So I wanted to put that on the record and make 8 that position. 9 And as to Ms. Yingling, we were sort of put in 10 a position to where it seemed appropriate, given 11 what the accusations were by Mr. Dandar, that we 12 would do something that we wouldn't normally do, 13 and -- 14 THE COURT: Well, I assume when you say 15 allegations that had been filed were fraudulent and 16 false, that brings rise to somebody bringing a 17 witness in, if they have one, to say that really 18 isn't true. 19 So your objection is noted. It is overruled. 20 MR. WEINBERG: Okay. 21 THE COURT: Is that it for the day? 22 MR. WEINBERG: That was my objection. 23 MR. FUGATE: Your Honor, I did not -- when the 24 Court was making some comments earlier I did not 25 rise so I did not elongate or prolong Ms. Yingling's
12 1 stay on the stand. 2 But as an officer of the Court, you had raised 3 a couple of issues relating to Mr. Howie. And as a 4 colleague of mine, I wanted to let the Court know 5 that -- and if I'm out of order you can certainly 6 tell me so -- that we had discussed Mr. Howie's 7 position of Mr. Minton recanting at the conclusion 8 of his testimony, and that was what I think he 9 understood was going to happen. And -- 10 THE COURT: And I, of course, gave him that 11 opportunity. And he said no. I said he certainly 12 could. 13 MR. FUGATE: The only point I'm making to your 14 Honor is I think then it was decided -- and I 15 couldn't tell you, again I say I think, but I 16 couldn't remember whether that was at the end of the 17 day, the period of time, but the decision was to 18 provide an affidavit. 19 And -- but I just wanted to say, as I 20 understood it, he indicated he had a case that said 21 he needed to do that at the conclusion of the 22 testimony. That is what I understood he was doing. 23 And I wanted the Court to be sure and 24 understand that as an officer of the Court, I take 25 myself out of advocate position, I certainly don't
13 1 represent Mr. Minton, but as a colleague of 2 Mr. Howie, I know that was a position that he took. 3 And he was planning -- 4 THE COURT: Mr. Howie was sitting right here. 5 You really don't need to advocate for Mr. Howie. 6 I have my own opinion as to Mr. Minton and why 7 it is he didn't come clean in his second or third or 8 fourth affidavit. 9 I offered Mr. Howie the opportunity to do 10 whatever it was he wanted to do when you were done. 11 He declined and said he wanted to do it by 12 affidavit. He has done that. 13 Lawyers make choices. Sometimes clients make 14 lawyers make choices. I have no idea what it is. 15 It is none of my business. I just simply made an 16 observation. I stick to my observation. I have my 17 own opinions as to what is going on. 18 But I surely don't think that I need to hear 19 from you about stuff that is on the record. 20 MR. FUGATE: Have a nice day. 21 THE COURT: Thank you. 22 MR. DANDAR: Judge, Mr. Franks is afraid 23 that -- I mean, he has to leave tomorrow evening. 24 He's afraid he might run out of time. I know it's 25 late. We've been here all day --
14 1 THE COURT: I'll do the same thing with him as 2 I did with Ms. Yingling. I suggest you be done with 3 him by noon, and I suggest all they'll get is the 4 afternoon. It is that simple. 5 MR. DANDAR: All right. I want to remind the 6 Court, and I know you probably will tell me not to, 7 but we have subpoenaed Mr. Franks. Mr. Franks was 8 then contacted by this attorney, Mr. Drescher, who 9 represents Mr. Rinder at CSI and told him -- and 10 sent him a letter saying he better not come because 11 you signed this agreement. 12 THE COURT: Listen, all these things I suspect 13 I will see in some sort of motion from you telling 14 me how the Church has acted inappropriately, that 15 they ought to be dismissed, that they ought to not 16 do this and that and the other thing. 17 That is why everything that I hear in here, 18 that I find unfortunate, is because I suspect I'll 19 be hearing about it again. If I don't, that is 20 fine. If I do, that is fine. 21 MR. DANDAR: I just want to remind the Court 22 and make sure that you do remember this. You told 23 me that you were ordering Mr. Franks to appear to 24 honor his subpoena and that is why he's here and 25 that is what he's going to do tomorrow when we
15 1 start. 2 THE COURT: I did, indeed, say that. And I 3 did, indeed, say that as far as I was concerned, 4 that if he were subpoenaed -- I was not party to any 5 contract that he had signed with the Church of 6 Scientology, and that if he had been subpoenaed to a 7 hearing of mine, I expected him to be here. 8 For whatever that is worth, I have no idea 9 whether that will serve him well or poorly if he is 10 sued. I don't purport to suggest that. I could 11 care less. 12 All I know is you said this man had relevant 13 information. You served him a subpoena. I could 14 care less about some agreement that is -- that -- 15 I'm not a party to. 16 So as far as I'm concerned, I expect him to be 17 here. It has been stated by you on a document that 18 he is an expert witness. I would expect, therefore, 19 that anybody from the Church would be very reluctant 20 to be interfering with that. 21 If they have, then I expect I'll see motions 22 why their case ought to be dismissed, or why the 23 answer should be stricken, or why there should be 24 triple damages, or whatever in the world it is. And 25 I'll have to deal with it on the right time.
16 1 Will I have to order them to have no contact 2 with him tonight? No. I hope they know better. 3 MR. DANDAR: I hope they do. 4 THE COURT: If not, I suppose we'll have to 5 litigate that. This is your witness, he has been 6 identified as your witness, it has been told to me 7 in court that there is some thought that in the 8 state of Florida that in a civil case that one side 9 cannot have any contact with the other side's 10 experts. 11 Now, that has been alleged as to problems with 12 Mr. Prince. And I assume that if they make -- they 13 already have -- I assume if it will be told to me 14 again, if he was identified, that this Mr. Drescher 15 had no business contacting him, and I assume that -- 16 you know, I just am not going to be a policeman here 17 and tell either side what it is they need to do and 18 what they don't need to do. 19 I expect him to be here tomorrow. And I hope 20 he has some relevant testimony. If he doesn't, why, 21 he'll have an early exit. 22 MR. WEINBERG: Could I inquire one thing? 23 Could I ask Mr. Dandar, is he being called as an 24 expert or a fact witness? 25 THE COURT: He's on the witness list as an
17 1 expert. 2 MR. WEINBERG: For this hearing? 3 MR. DANDAR: He's an expert. 4 MR. WEINBERG: Then I really -- I do find that 5 objectionable because we have not had an opportunity 6 to depose him. I mean, no expert has testified in 7 court without either side being able to depose them 8 in advance. 9 THE COURT: That objection is overruled. 10 MR. WEINBERG: I understand. 11 MR. DANDAR: Judge, he's -- 12 THE COURT: We're going to go forward with this 13 hearing. I can't wait around for the types of 14 depositions you-all take. I would be here waiting 15 another two weeks. 16 MR. WEINBERG: I'm not arguing with you. I'm 17 stating my objection. 18 THE COURT: I understand. 19 MR. DANDAR: He's an expert in the same fashion 20 as Mr. Prince and Mr. Young are experts. They are 21 former Scientologists, 20-plus years, and they have 22 a vast amount of knowledge on policies and customs 23 and techniques. 24 THE COURT: And I expect that I'll hear from 25 Mr. -- from Mr. -- why am I having trouble with your
18 1 name? I had trouble with that before. 2 MR. LIEBERMAN: Me? 3 THE COURT: Yes. 4 MR. LIEBERMAN: Lieberman. 5 THE COURT: That I should not even listen to 6 them. And I'll tell Mr. Lieberman when he makes 7 that objection, I'll hear from him and then I'll 8 hear arguments on the law. 9 MR. DANDAR: All right. 10 THE COURT: I just expect they'll be jumping up 11 and down tomorrow. 12 MR. WEINBERG: It is just confusing because we 13 were told he's being called as a fact witness, 14 although on the -- for the trial on the witness list 15 he was listed as an expert. But we were told by 16 Mr. Dandar for this hearing he was being called as a 17 fact witness. So I'm just confused. 18 THE COURT: Okay. He -- I would have assumed 19 that he knows something that Mr. Dandar is planning 20 on calling him for regarding his ability to make the 21 allegation that Mr. -- I mean, I don't know a thing 22 about this guy. I never met him in my life. And I 23 could tell you just about what he'll say. I mean -- 24 MR. WEINBERG: I -- 25 THE COURT: I could tell you what he'll say.
19 1 And, you know, frankly, I could cross-examine, I 2 could put him on, and I have never deposed him, I 3 never met him. You have a lot more information than 4 I do. But I could almost -- I could write it down 5 if you want. 6 MR. WEINBERG: No. 7 THE COURT: And I'll show you after he's done 8 what it is -- 9 MR. WEINBERG: No, I think I have a sense of 10 what he will -- 11 THE COURT: I think you have a sense. I think 12 we'll hear something about that area that deals with 13 whether Miscavige -- or Mr. Miscavige would have 14 known about Ms. McPherson, and something about 15 whether or not he would have ordered this 16 unfortunate event to occur. 17 MR. WEINBERG: I mean, that is a "would have" 18 for somebody that was there 21 years ago. And that 19 is worse than Jesse Prince's affidavit, so that is 20 what I was really objecting about. 21 But I recognize what the cross-examination is. 22 I don't understand why we're really going through 23 that, given that. 24 THE COURT: Well, we have gone through this 25 because you have filed the motion to dismiss the
20 1 case. If you want to withdraw it -- 2 MR. WEINBERG: No, we don't want to withdraw 3 it. 4 THE COURT: Then we're going to hear from him, 5 because I am going to give everyone every 6 opportunity to be heard on this motion. 7 This is not a trial. There is no jury here. 8 Sometimes in a motion, with these allegations, 9 people have to cross-examine without having had the 10 opportunity to take somebody's deposition. 11 MR. DANDAR: And the other thing on the record 12 is that you told us in the beginning not to move for 13 directed verdict or whatever that would be at this 14 stage -- 15 THE COURT: I did that, Mr. Dandar, for you. I 16 figured regardless of what decision I made, if I 17 made a decision that you should not be removed from 18 the case, that there would be an inquiry by the 19 Florida Bar. 20 I have seen the Florida Bar counsel over here 21 from the beginning of this thing. So I suspect, 22 therefore, that they are asking for a transcript. 23 MR. DANDAR: Yes. 24 THE COURT: I thought it would be unfair to you 25 to have one side's part of the case on the record
21 1 and not whatever witness you wanted to present. 2 That is not that I'm doing the Florida Bar's 3 work for them. But I just, quite frankly, felt that 4 even I, in making a decision whether to disqualify a 5 lawyer, would want to hear everything that both 6 sides had to say. 7 MR. DANDAR: Yes. 8 THE COURT: And, therefore, decided I didn't 9 need to hear argument. I would hear from both 10 sides. I think that would be probably a good way to 11 do it. 12 Are you saying you didn't want to waive 13 anything? 14 MR. DANDAR: I don't want to waive anything. 15 THE COURT: Nothing is waived. 16 MR. DANDAR: All right. 17 THE COURT: But I just don't want to hear legal 18 argument. I want to hear from everybody so when I 19 sit down to ferret out, I don't have to say, "Gee, I 20 wonder, if I heard from one of their witnesses, what 21 I would have heard and did I stop too soon?" 22 In other words, if I were to hear your argument 23 right now and were to go home, I would have to think 24 about this long and hard then and I might have to 25 say, "Well, it is denied and I want to hear your
22 1 witnesses." 2 So the best thing for me to do is hear it all. 3 MR. DANDAR: Okay. 4 THE COURT: Then you -- but you have not waived 5 a thing. 6 MR. DANDAR: All right. 7 THE COURT: All right? 8 MR. LIROT: Very good. Thank you. 9 THE COURT: Mr. Lirot, anything else from you? 10 MR. LIROT: No, Judge. Just my gratitude. 11 THE COURT: Well, that is -- 12 MR. WEINBERG: That is very charitable. 13 THE COURT: Everybody has been nice to me 14 today. 15 MR. WEINBERG: What time tomorrow morning? 16 THE COURT: Mr. Howie may not have such nice 17 things to say. 18 MR. WEINBERG: What time tomorrow morning? 19 (A discussion was held off the record.) 20 THE COURT: Tomorrow, 9~o'clock. 21 MR. WEINBERG: See you at nine. 22 THE COURT: We're in recess. 23 (WHEREUPON, Court stands in recess at 24 4:50 p.m.) 25 _________________________________
23 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 12th day of June, 2002. 12 13 14 ______________________________ LYNNE J. IDE, RMR 15 16 17 18 19 20 21 22 23 24 25