Evidentiary Hearing on the Motion to Disqualify Defense Counsel

Witnesses Michael Garko & Samuel D. Rosen

29 - 30 August, 2002 // Volume I

IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., Plaintiff VS. CASE N0. 00-002750-CI-20 DELL LIEBREICH, individually and as Personal Representative of the Estate of Lisa McPherson, ROBERT MINTON and THE LISA MCPHERSON TRUST, Defendants. BEFORE: The Honorable W. Douglas Baird Circuit Judge PLACE: 315 Court Street Clearwater, Florida DATE: August 29 - August 30, 2002 REPORTED BY: Susan M. Valsecchi, RPR Registered Professional Court Reporter Sixth Judicial Circuit ---------------------------------------­ HEARING (VOLUME I) ---------------------------------------­ Pages 1 - 192 (Excluding Index.) ROBERT A. DEMPSTER & ASSOCIATES (727) 443-0992  APPEARANCES F. WALLACE POPE, JR., ESQUIRE SAMUEL D. ROSEN, ESQUIRE JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS Post Office Box 1368 Clearwater, Florida 33757 (727) 461-1818 Attorney for Plaintiff WILLIAM B. HILL, JR., ESQUIRE PAUL, HASTINGS, JANOFSKY & WALKER 600 Peachtree STreet, NE, Suite 2400 Atlanta, Georgia 30308-2222 Attorney for Witness Samual Rosen KENNAN GEORGE DANDAR, ESQUIRE THOMAS DANDAR, ESQUIRE DANDAR & DANDAR P.O. Box 24597 Tampa, Florida 33623 Attorney for Dell Leibreich LANSING SCRIVEN, ESQUIRE 442 W. Kennedy Boulevard, Suite 280 Tampa, Florida 33606 Attorney for. Witness Michael Garko 3 WITNESS PAGE MICHAEL GARKO INDEX OF WITNESSES DIRECT EXAMINATION BY MR. DANDAR 25 CROSS-EXAMINATION BY MR. ROSEN 88 REDIRECT EXAMINATION BY MR. DANDAR 115 SAMUEL DAVID ROSEN, ESQUIRE DIRECT EXAMINATION BY MR. DANDAR 128 CROSS-EXAMINATION BY MR. HILL 160  P R 0 C E E D I N G S THE COURT: All right. We're here to continue the evidentiary hearing on the motion to disqualify Defense Counsel. MR. ROSEN: Thank you, Your Honor. Good morning. If I might raise one or two preliminary matters to which we have submitted some papers to the Court. The first one is -- was a short motion that we submitted a couple of days ago entitled Plaintiff's Motion for Relief From Kennan Dandar's and Tom Dandar's Contumacious Conduct. I don't know -- has Your Honor had a chance to read that? THE COURT: Yes. MR. ROSEN: Okay. I would -- as Your Honor knows, one of the remedies we're seeking is a time limit to Mr. Dandar's defense, apart from any other remedies that Your Honor may impose, for the activity which occurred before Judge Barton respecting the conflict, so I would suspect that that's probably a good starting point for today, that motion, if I may ask Your Honor ahead of time -- I'm not going 5 to argue it. Everything we have to say we've put in our papers. THE COURT: Well, I'm going to consider the circumstances regarding the conflict and the matters that were contained in the motion and the transcripts of the hearings before Judge Barton. I don't have any particular desire at this point to do anything about it. I'm going to -- you know, we're going to see this hearing through and receive all of the relevant testimony that needs to be received on the part of either party, and then it will be resolved along with everything else. So I'm not going to lay down any markers at the beginning of this process regarding how it's to be effected. MR. ROSEN: I take it from your comment that the markers refers to time limits. THE COURT: Right. MR. ROSEN: Okay. If I could then move on to the next two, which are related. We filed bench memorandums. One is concerning exclusion of testimony respecting alleged conversations with Robert Minton, and 6 the second is a memorandum to exclude Mr. Dandar's defense as irrelevant. They are related matters. I don't know if Your Honor has had a chance to review those. THE COURT: Just briefly. I just got them a couple days ago. MR. ROSEN: Okay. Well, they're kind of short, but let me walk you through what the problem is. On the assumption that what was going to happen before this Court has some similarity to what happened during 35 days before Judge Schaeffer, Mr. Dandar's case in defense, as we understand it, is to call witnesses, including Mr. Prince, himself, to testify to conversations they had with Mr. Minton. The, quote, defense that Mr. Dandar is presenting or at least we expect that he will, because it's what he presented to Judge Schaeffer, is that in these conversations which occurred after the settlement meetings in March and April, Mr. Minton allegedly made comments and admissions -- I shouldn't say admissions -- comments -- to Mr. Dandar and to 7 Mr. Prince which they interpret as he threatened them, as we threatened them and Mr. Minton in the settlement meetings, both church representatives and attorneys threatened Mr. Minton. And I assume Mr. Dandar is offering that to demonstrate collaterally something respecting Mr. Minton's testimony. We have three points to make on that, and I think this is going to cover all of the evidence that Mr. Dandar has to present, except for perhaps himself. His entire case, as we understand it, is this, based on the witnesses he identified, including me: Here's the history of this, and here's why we think this evidence is excluded. First of all, it's not relevant to any issue in this case. What we're trying, as Your Honor knows, are discrete and-very specific acts of misconduct by Mr. Dandar. What Mr. Minton allegedly said to Mr. Dandar and Mr. Prince, which they interpreted as being some sort of a threat, is not relevant to these issues.  Secondly, as we set forth in the first of these briefs -- the bench memorandum, rather --­the one that is entitled Plaintiff's Testimony -- excuse me -- Plaintiff's Bench Memorandum to Exclude Dandar's defense, that's where we argue the relevance in the second one. We argue as follows: Mr. Minton was on the witness stand before Your Honor. He is no longer here. And not surprisingly, Florida is not to his liking. To the extent he was asked when he was before you on the witness stand of any conversations he had along these lines, supposedly this defense, he denied them. More importantly, to the extent he was asked, this is a collateral matter. And I think the law is that you cannot impeach a witness on a collateral matter by offering extraneous evidence, i.e., other witnesses. THE COURT: Since when is Mr. Minton's credibility a collateral matter? MR. ROSEN: No. The credibility is not the collateral matter. Mr. Minton's credibility is certainly an important matter, not anything but collateral, but the collateral  issue is whether or not Mr. Minton says something to Mr. Dandar or Mr. Prince, you know, which they interpret as meaning the Church of Scientology threatened me. That's not -­that is collateral. That doesn't go to Mr. Minton's credibility. The second aspect is as follows: I think the law since Queen's Bench that if you want to impeach a witness, you must confront them, give them an opportunity and say in effect, "Didn't you tell me X?" Okay? To the extent that they did ask him about it, that's a collateral impeachment. To the extent that they offer evidence of any conversations with Mr. Minton that they did not ask him about when they were on the stand -- when he was on the stand -- that violates the fundamental rule that you cannot impeach a witness without first confronting him with the statements. So we have it in two different compartments, depending on whether the information to be elicited is something that was addressed in Mr. Dandar's cross-examination of Mr. Minton before you or not.  I don't know what the testimony is, so I can only tee up the categories, if you will. It's going to be one of those two. If it's the first one, we think it's collateral. If it's the second one, clearly it cannot be offered. Now, let me get to the bottom of this. And as we understand it from the proceedings before Judge Schaeffer, Mr. Dandar's defense is as follows: In meetings, settlement meetings held between the Church and its Counsel and Mr. Minton and Ms. Brooks and Mr. Minton's counsel starting in my office on the 28th of March and continuing into the month of April, Mr. Dandar's allegations before Judge Schaeffer was that we threatened Mr. Minton, we somehow pressured him to provide -- to bear false witness against Mr. Dandar. That may be relevant, as Your Honor indicated, to the extent it goes to the credibility of Mr. Minton, but I remind Your Honor that most of the evidence in this case has nothing to do with credibility. It's documents that existed long before, whether it be Mr. Minton's checks, whether it be Mr. Dandar's letters, notes, et cetera, his briefs, his statements to the courts. But I want to go beyond that for a moment. There were six people at the meeting in my office, a representative of the church and two attorneys, myself and Ms. Yingling. Across the other side of the table were Mr. Minton, Ms. Brooks and Mr. Minton's attorney, Mr. Jonas, from the firm of Hale and Dorr in Boston. Six people at this meeting. Mr. Dandar has alleged before Judge Schaeffer that at this meeting Mr. Minton was threatened. Let me tell you what's happened so far because I'm going to ask you to have Mr. Dandar, if you're going to allow him to pursue this defense, to make a proffer. Number one, Judge Schaeffer asked if the attorneys would be willing to-waive their work product privilege with respect to the notes at that meeting. All three attorneys waived. Myself, Ms. Yingling and Mr. Minton's attorney waived our work product privilege and produced the notes. There's nothing in there 12 about threats. Mr. Dandar persisted, "I know they threatened him. That's my claim. I don't have any evidence. I wasn't at the meeting." The next thing that happens is three of the six people at the meeting have testified. Mr. Minton testified both before you and before Judge Schaeffer emphatically denying that there were no threats, no promises, no coercion, nothing addressed to him. Ms. Brooks, who did not testify before you but did testify before Judge Schaeffer, said the same thing, "I was at those meetings, no threats, nothing." Ms. Yingling, an attorney for the church testified before Judge Schaeffer, "I was there. There were never any threats." Now, does that mean that he cannot call the other people who were at the meeting, including me? Because Your Honor knows he said last time I'm his first witness. Not necessarily. But it would strike me that in this context, if Mr. Dandar wants to allege -- continue to allege -- without any 13 evidence, no good-faith belief, as far as I'm concerned, that anything was said, either by my client or by the attorneys, myself included, at this meeting, which was in any way inappropriate by way of a threat or coercion, I would ask you to ask Mr. Dandar to make a good-faith proffer. And that not only applies to my testimony -- and I'm perfectly willing to testify. As Your Honor knows, one of my partners, Mr. Hill, is here to represent me in case I have to testify. But Mr. Dandar is apparently going to call a series of witnesses, and I would ask that Your Honor ask him to make a good-faith proffer. If Mr. Dandar is going to stand here and tell you, "I have a good-faith belief," I will use myself as an example, "that if Mr. Rosen takes the witness stand, he's-going to admit that he threatened Mr. Minton," that's fine. Let him make the good-faith proffer, and Your Honor can deal with whether or not that is good faith after the testimony is in. But so far, what has happened is just this 14 endless thing of Mr. Dandar making accusations of what happened in these meetings that neither he was in nor any of his witnesses were in, and he just makes acquisitions of misconduct against attorneys. He's made acquisitions against Mr. Pope. Mr. Pope was not even there, and he complained that Mr. Pope threatened Mr. Minton. And I think there comes a point in time -- I'm not asking you necessarily to cut him off, because I understand that given the seriousness and the nature, perhaps, as Your Honor said a moment ago, 'you should hear all of the relevant evidence, but I think it is appropriate, as Mr. Dandar is going to call a parade of these so-called defense witnesses all addressing one issue, supposed threats to Mr. Minton, that he make a proffer of what he intends to offer, and Your Honor can then determine whether it's relevant, whether it is hearsay, as we've argued. You know, a statement by Mr. Prince on the stand as to what Mr. Minton told him is hearsay, pure and simple. And I think it would benefit the process, 15 then, if Your Honor is going to consider any of this, that we start with each witness, including myself, with Mr. Dandar making a proffer. I thank Your, Honor. MR. DANDAR: Judge, I would like to not follow his suggestion. I would like the Court to permit me to call Dr. Garko, my former trial jury consultant in the wrongful death case, who is sitting here with his attorney, paying his attorney to sit here. He's a witness. Dr. Garko was not a party to the New York meetings. Dr. Garko was a party to conversations with Mr. Minton after the meetings commenced here in Clearwater. I also ask you to make a note and have Mr. Rosen produce anywhere in any record of Judge Schaeffer's where I accused Mr. Pope of extorting Mr. Minton. Mr. Pope states he was not at any of the meetings, and that's where we left it. We didn't go accuse him of something. He said he wasn't at the meetings. We took him at his word. I would like to start with Dr. Garko so he can get on and get off the stand. He is from 16 Northeast Tampa, and I hate to have him sit here while we argue this while his attorney is present. THE COURT: I can't recall. Did you confront Mr. Minton with these alleged statements that he made to Mr. Garko at the time that he was on the stand testifying? Mr. DANDAR: No, at that time we did not know that Mr. Minton had secretly met with Dr. Garko. Dr. Garko also secretly met with Sandy Weinberg, Counsel for Flag, the day before he testified for the church. THE COURT: The reason I'm asking is because it wouldn't be impeachment. Mr. DANDAR: Well, it's impeachment on this subject, his meeting with Mr. Minton which Occurred after Mr. Minton came into the contempt hearing on April 9th. His meeting resulted in conversations concerning Mr. Minton soliciting from Dr. Garko an agreement to testify that this so-called secret meeting took place in my office to add on David Miscavige, and Dr. Garko testified - THE COURT: Why isn't this all hearsay? Mr. DANDAR: It's not hearsay because, 17 number one, Mr. Minton is a party in this case, and it's a statement against interest. It's an admission against interest. When he files an affidavit in your court this secret meeting and there’s a witness - - he says that Dr. Garko was there - Dr. Garko is going to testify under oath it didn't happen, it never happened, and that's impeachment of, number one, of a party and, number two, of their only -- their prize witness. Their whole foundation of their motion rests on Mr. Minton. THE COURT: I wouldn't say their whole foundation rests on Mr. Minton. Mr. DANDAR: Okay. THE COURT: Mr. Rosen? MR. ROSEN: Yes, Your Honor. The history is as follows: At the time of the hearing when the hearings commenced before you and in April at the resumption of the contempt hearing, Dr. Garko was trial consultant engaged by Mr. Dandar. When those hearings resumed and we started formally the disqualification hearing on the 18 19th of April, Dr. Garko was sitting here at counsel table with Mr. Dandar. They cross-examined -- Mr. Lirot cross-examined Mr. Minton on the witness stand on the 19th before you. Mr. Minton testified to that meeting. You will remember the meeting. He flew down here, was picked up, he came to Mr. Dandar's office, they talked about the strategy of amending to add Mr. Miscavige, went down the elevator, Mr. Dandar then went to Mr. Minton and Ms. Brooks, and Mr. Dandar allegedly said this meeting never happened, et cetera. He sat here. Any conversation he had that Dr. Garko could offer that he had with Mr. Minton, they could have asked Mr. Minton about when he was here and they didn't. You asked a question of Mr. Dandar, let me answer it. I don't pretend to have memorized the entire transcript of the proceedings before you, but to my knowledge, there was never any question asked about any conversation with Mr. Garko, at all. 19 THE COURT: We've established that it's not impeachment, but that it's not - that it’s not admissable hearsay because it's it's an admission against - or it’s an admission by a party, which is Mr. Minton. MR. ROSEN: Yes and we anticipated that. If Your Honor could turn to our bench memorandum concerning Exclusion of Testimony Respecting Alleged Conversations with Robert Minton, you will see that we start out asserting that this is hearsay, and we anticipate in this - on page 3 we say the evidence is hearsay. THE COURT: It's obviously hearsay. MR. ROSEN: Yeah. And we anticipate this, as we go further on into the brief, we say, okay, on Pages 4 and 5, the only possible hearsay exceptions that Mr. Dandar could argue are either admission, party, which pertains to a party, or declaration against interest, which pertains to a non-party. As Your Honor knows, admissions and declarations against interests have one thing in common. They have to consist of a statement  20 which would -- a person would not make because it would subject them to some sort of liability, civil liability, criminal liability. THE COURT: This isn't a declaration against interest. MR. ROSEN: Say again. THE COURT: This is not -- these alleged statements would not be declarations against interests. MR. ROSEN: That's correct. THE COURT: And I don't think they suggested that they were. They suggested that these were admissions by parties. Why don't you address that. MR. ROSEN: Okay. And my response to that is they are not admissions because they don't admit anything. Mr. Minton is saying this is what I did and this is what happened at the meeting with Mr. Dandar. If it is offered as an admission through Dr. Garko of a conversation that occurred and they didn't ask him about it, we're back to the Queen's Bench Rule. You should have confronted him with it when he was on the witness stand. But let me give you, perhaps, a more 21 important proposition. Mr. Minton, while he is a, quote, party in the breach case before you in the sense that we have amended to add him as a defendant, he is not a, quote, party to this proceeding. This is a proceeding to disqualify Mr. Dandar as counsel for Ms. Liebreich. And I would suggest, Your Honor, consistent with your own ruling on April 9th, that Mr. Dandar was not a party to the contempt proceeding against Mr. Minton. If you remember, when Thomas Dandar tried to cross-examine him on the 9th, Your Honor said, "You're not a party this is a contempt proceeding. It's between the Plaintiff and Mr. Minton," and of course the Court. That's the same situation here. This is a proceeding to disqualify Mr. Dandar. Mr. Minton, while he is a party in the underlying case, is not a party to this proceeding. So even if you looked at it in the broadest light as an admission, even though they never confronted him with it, it can't come in as an admission of a party because he's 22 not a party here. And that's why we treated it in our brief in the alternative. If he's not a party here, then the only exception is a declaration against interest. And as Your Honor knows, a declaration against interest requires that the witness say something which would be against his own interest, which would, for example, subject him to civil or criminal liability. There is nothing to that effect that's, in fact, one of the reasons Your Honor to have Mr. Dandar make the proffer, because what you're going to hear is not anything about Mr. Minton making a statement of declaration against interests that, "God, I committed fraud," or I did this or I did that. THE COURT: I don't want to hear anymore about declarations against interests. I've already told you that that's not the exception here, so we don't need to argue that. MR. ROSEN: Well, if what he's asserting is admission, for the reasons I stated, including that admissions only apply to parties and Mr. Minton is not a party to these 23 proceedings for disqualification of Mr. Dandar. THE COURT: All right. I'm going to go ahead and allow the testimony. It appears to me that under 9802, it would be an admission, and it's the party's own statement. So do you want to call the witness? Mr. DANDAR: Yes, thank you. We call Dr. Michael Garko. MR. ROSEN: Your Honor, while Mr. Garko is coming forward, there's one other thing I forgot. We had indicated we were going to rest, we don't have anymore witnesses. However, we do have some additional exhibits to offer. What we've done, Your Honor, is we have two volumes for you. Volume I are just another copy of all of the exhibits that have already been received. Volume II -- and we've given these to Mr. Dandar -- are exhibits that we're offering. Some of them were identified earlier, but I forgot to move them in, and some of them came up afterwards in the Judge Schaeffer hearing. I'm offering these exhibits as part of our case, and we rest. And if Mr. Dandar wants to 24 take a few minutes to read them during a break, that's fine. But Volume I is what's already been received and Volume II is what we're offering. THE COURT: Well, you don't have to worry about offering them out of order, but I do think that Mr. Dandar ought to have an opportunity to take a look at them before the Court receives MR.ROSEN: Sure. THE COURT: I've already got the stuff you -- there were two volumes basically. MR. ROSEN: Yeah, they include ones that I forgot to move into evidence, so the ones -- this Volume I is the ones that are already in -- THE COURT: All right. MR. ROSEN: -- as we reviewed the transcript. And these are the ones that we will offer. Mr. Dandar can review them. MR. DANDAR: We would object to any new evidence since they already rested, and we would also object to, after they rested, moving exhibits into evidence. THE COURT: I've already told them I'm 25 going to allow them to open up their case and put this in if it's relevant and otherwise admissible, so let's proceed with the witness. MR. SCRIVENER: Good morning, Judge. I'm Lance Scrivener, Counsel for Mr. Garko. MICHAEL GARKO, called as a witness, having been duly sworn, testified as follows: DIRECT EXAMINATION BY Mr. DANDAR: Q. Good morning. Please state your full name. A. Michael Garko. Q. And what is your occupation? A. I'm a trial and jury consultant and a professor. Q. And professor on what subject? A. Communication. Q. What is the extent of your education? A. I have a bachelor's degree in communication, mass communication, with an emphasis in public relations. I have a bachelor's degree in humanities. I have a master's degree in communication and I have a Ph.D. in communication theory and research. Q. When did you start -- when did I retain you as my jury trial consultant? A. My recollection is somewhere at the end of '98, beginning of 1999. 26 Q. In what case was that? A. This case. I beg your pardon. The wrongful death case, Lisa McPherson case. Q. And from that moment on, you continued and practiced as my jury trial consultant, not only in the Lisa McPherson wrongful death case, but other cases, correct? A. That's correct. Q. And did there come a point in time when you ceased being my jury trial consultant on that wrongful death case of Lisa McPherson or any other case? A. Yes. Q. And when did that occur? A. You're asking me when did I perceive -­ Q. When did you. give me notice that you resigned? A. I sent you a letter not long ago telling you that I formally resigned from the Lisa McPherson wrongful death case. Q. That was after you testified before Judge Schaeffer? A. That's correct. Q. Okay. Now, during the course of the litigation in the wrongful death case, you came to know Robert Minton, correct? A. I did. Q. And during the course of the litigation of the 27 wrongful death case, would you ever contact Robert Minton without my permission? A. I don't have any recollection of ever calling him. With respect to your permission, I did that as a matter of protocol for myself. I didn't think I needed your permission either to call or not to call. I just did that because I wanted to focus on the matters of the case. I didn't want to interact with him or, in fact, the client. Q. Who was in control of the wrongful death case from the moment you started until today? MR. ROSEN: Objection, no foundation, calls for a conclusion. BY MR. DANDAR: Q. Based on your observations and experience in working with me -- well, let's back up. How often would you work with me on the wrongful death case? A. Well, over the three-year period, in those three years I worked with you almost every day. Q. And would you attend all of the depositions? A. I think I attended the lion's share of the depositions in that case, as well as hearings. Q. Would you attend the hearings? A. Yes. Q. And would you from time to time -- would you and I 28 go over to the Lisa McPherson Trust office and stop in and say hello? A. Yes, we did. Q. Okay. And did you meet Dell Liebreich, the personal representative of the estate? A. I did meet her. Q. Okay. Based upon your experience in working with me in the wrongful death case of Lisa McPherson, who was in control of the case? MR. ROSEN: Same objection. THE COURT: Overruled. THE WITNESS: The client. BY MR. DANDAR: Q. And who is the client? A. Ms. Liebreich. Q. Okay. Did Robert Minton, as far as you know, exercise any control over the wrongful death case? MR. ROSEN: Objection. THE COURT: Overruled. THE WITNESS: Not to my knowledge. I guess I'm -- what do you mean by control? If you could tell me what you mean by the control issue, I think I understand what you mean, but... BY MR. DANDAR:  Q. Okay. Control meaning directing me to do things in the case. MR. ROSEN: Objection. That's irrelevant. That's not the issue. MR. DANDAR: Well, I'm at a disadvantage on what the issues are, Judge, because the Motion to Disqualify hand-delivered to my brother on April 8th during Robert Minton's deposition did not specify any grounds for disqualification. And as we had a hearing on the 19th and the 30th of April before you, things just kind of blossomed. And when we went to Judge Schaeffer, they even grew even more. Now, they did file a Statement of Issues, I think, maybe two or three days ago, but you haven't ruled on that so I don't know what the issues are quite frankly, so... THE COURT: Well, the issue is whether you should be disqualified. You certainly can't be disqualified for representing your client, okay, so I think you know what the issues are. The issues are did you suborn perjury, did you file false affidavits, did you violate the canons of ethics. Those are the issues. 30 again There's no mystery about that. MR. DANDAR: But when they're objecting, they're saying it's outside the issues. If I violated the canons of ethics, they haven't stated until maybe two days ago where they're coming from on that. THE COURT: Well, I think it's fairly obvious. MR. ROSEN: Your Honor -- MR. DANDAR: It's not obvious to me. THE COURT: Maybe you ought to read that again. MR. DANDAR: If you're ruling that those are the issues -- THE COURT: I'm not ruling anything. You said you don't know where they're coming from. They've said where they're coming from, so it's no mystery. If you want to address that, fine. If you want to address something where they're not coming from, I don't know why you would want to do that. MR. DANDAR: I'm trying to be very cautious because this is a very serious allegation. It's a broad allegation against me 31 personally. THE COURT: Well, I think that in terms of the issues, I think that they have self-restricted the issues down to the ones that they set out in the document that I received a few days ago, and it seems to me that if that's what they think the issues are and the ones that they are going to be hanging their hat on, maybe those are the ones you ought to address rather than some issue that they don't think is relevant. MR. DANDAR: That's fine. The reason why I'm being so cautious -- the next reason I'm being so cautious is because I don't want Dr. Garko to leave the stand and they say, well, here's another issue you can use, Judge, and then I don't have any testimony. That's all. So I will go with that statement by the Court. MR. ROSEN: Your Honor, if I may just say a word, just to remind Mr. Dandar -- he's apparently forgotten something -- our original Motion to Disqualify Mr. Dandar, which I believe was served on April 8th and 9th, when we came to the hearing Your Honor indicated on 32 objection by Mr. Dandar that that was insufficient because given the gravity of the circumstances, Mr. Dandar was entitled to something much more by way of specification of what the misconduct was. And Mr. Pope, I remember, jumping up and saying, "Your Honor, you're absolutely right; he's entitled to know precisely what the specifications are, almost like an indictment, you know, here are the specifications of misconduct, et cetera, and we will do that." And apparently Mr. Dandar has forgotten that before we resumed before you on April 19th we served them and filed them and he has had it all of this time. THE COURT: Okay. MR. DANDAR: So just for the record, I'm looking at the Statement of Issues, service date of August 14th, 2002, which was six issues, and I'm also looking at an August 28th, 2002 bench memorandum which seems to raise six issues, some of which are not the same as the ones on August 14th. So should I address my witnesses both of these Statements of issues? THE COURT: Yeah. MR. DANDAR: All right. BY MR. DANDAR: Q. Dr. Garko, were you ever involved in conversations with anyone concerning how much money I was borrowing from Mr. Minton? MR. ROSEN: Objection to the leading nature of the question. This is his witness, judge. THE COURT: Sustained. It's also hearsay. BY MR. DANDAR: Q. Okay. Dr. Garko, did you have any conversations with Mr. Minton as to the status of the money he was giving me? MR. ROSEN: Objection. That's hearsay. THE COURT: I think it's vague. I don't know whether it's hearsay or not because it's a little too vague. Can you be a little more specific? BY MR. DANDAR: Q. Did you ever hear Mr. Minton classify the money he gave me as either a loan to me or to the estate? MR. ROSEN: Objection. That's hearsay, what Mr. Minton said. THE COURT: I have already ruled that it's an admission. You can answer. THE WITNESS: Could you repeat the question, please. BY MR. DANDAR: Q. Did you ever hear Mr. Minton classify the money that he gave me over the years as a loan to me or a loan to the estate? A. My understanding was that -­ THE COURT: Your understanding is not what we're talking about. What we’re talking about What we're talking about is conversations that you heard from Mr. Minton, statements that he made, not your understanding or your belief or anything else, okay, so be very careful about that. careful about that. THE WITNESS: Okay. I never heard him use the word loan. BY MR. DANDAR: Q. Did he ever say who the money was going to? MR. ROSEN: I'm going to object. That's vague, who the money was going to. THE COURT: Overruled. Go ahead. THE WITNESS: The money was going to the estate. BY MR. DANDAR: Q. Did you see checks to the estate? MR. ROSEN: I'm sorry. I didn't hear that 35 question. BY MR. DANDAR: Q. Did you see checks by Mr. Minton to the estate? A. I never saw any checks. I never saw checks. Q. So are you recollecting a conversation and statement made by Mr. Minton over the years that he was giving money to the estate? MR. ROSEN: I object to this. This is improper. MR. DANDAR: I need to pinpoint the witness down as to what he's referring to. THE COURT: Why don't you ask him what he heard and when he heard it. Then you can pin it down that way, what that may be. BY MR. DANDAR: Q. When did you hear Mr. Minton make any statement concerning who the money is going to? A. Over the years -- over the two or three years, the three years that I was working as the trial consultant on the case, we had conversations with Mr. Minton, you and I -- and I can't remember the exact times or places, but it was clear to me that when we did talk about the money, that the money was going to the estate to fund the litigation -- that is, the Lisa McPherson wrongful death 36 case -- that was my understanding based on conversations that you and I had with Mr. Minton at various points in time over the three years. Q. You sat with me at the deposition of Mr. Minton in May of 2000? A. I believe I did. Q. And John Merrett was representing Mr. Minton? A. Yes. Q. Do you recall in that deposition, did you try to correct anything that Mr. Minton said in that deposition about where the money was going to? MR. ROSEN: Objection. THE COURT: Wait a minute. The deposition speaks for itself. MR. DANDAR: I'm not asking what the deposition transcript is. I'm asking him if he tried to correct anything that Mr. Minton said in that deposition concerning where the money was going to. MR. ROSEN: How could he correct it? He's not the witness and he's not an attorney. I don't understand the question, Your Honor. THE COURT: Yeah, you need to rephrase. BY MR. DANDAR: Q. Can you recall for us specifically where this 37 conversation took place? A. It wasn't just one conversation, Mr. Dandar. When we did speak with Mr. Minton about funding in the case, it was clear to me that he intened the money to be channelled -- or funneled or whatever, directed - to the estate to be put in trust, some trust account, and to be used to fund this case. That was my understanding. I mean -­ Q. But what were the words of Mr. Minton? A. I don’t remember his exact words, but I can tell you what I didn’t hear him say. I didn’t hear him say, "Here's some money, go have a good time.” I mean, that’s not what he said. I inferred - it was implied - I concluded - from our Conversations with him, even as recently as 2002 when we went up to New Hamphsire, the the money was to be used to fund the litigation. That was my understanding. I mean, that's as simple as it is for me. I mean, that's what it was, and that's what it is in my mind as I sit here today testifying under oath. Q. Did Mr. Minton attach any strings to this money he gave me? A. I never heard Mr. Minton - MR. ROSEN: Objection to the question, "That he gave me." 38 BY MR. DANDAR: Q. I will rephrase it. Did you ever hear Mr. Minton attach any strings to the money that I received? A. Only that the money was to be used to fund - to support the costs incurred in the litigation of the Lisa McPherson wrongful death case. In terms of any other kinds of conditions or conditions, I never heard him say that -- say anything like that. Q. Did you ever hear Mr. Minton say that I had to amend the Complaint and sue David Miscavige? MR. ROSEN: Objection. THE COURT: Wait, wait. This is leading. You know, if he's got statements that he heard Mr. Minton say regarding some issue, maybe ask him about those statements, but, you know, you can't just lead him into yes or no answers. You know, that's not testimony. MR. DANDAR: Judge, I apologize for not saying this earlier. Dr. Garko is an adverse witness. Dr. Garko used to be a defendant in this case. And I'm going to get into that now, and maybe I should get into it right now. He certainly is not a witness for me or the estate. He's an adverse witness. 39 And I don't think you know about any of this -- and, see, I'm coming from Judge Schaeffer. This all came out. So let me go down there and establish that first, okay? THE COURT: All right. BY MR. DANDAR: Q. Dr. Garko, you and I have not talked to each other since the hearing of April the 9th, that day, April the 9th; is that right? A. No. That's not true. Q. When did we last talk? A. We spoke on the day that I testified in Judge Schaeffer's court. Q. Okay. All right. Other than the day that you testified in Judge Schaeffer's courtroom, is that the only time you and I have talked since April the 9th? MR. ROSEN: I object. If Mr. Dandar is trying to lay a foundation that this witness has a reason -- as a, quote, adverse witness - has a reason to lie, the fact that he used to work for Mr. Dandar and does no longer plainly fails. If he's got some animosity he wants to bring out through the witness, it is not “I haven't talked to you." 40 I haven't talked to my son in three months either. It doesn't mean that he's an adverse witness for me. THE COURT: Well, what's the basis that you're claiming he's an adverse witness, just because he has testimony that's not favorable to you? MR. DANDAR: No, I'm trying to establish that now. I mean, that was just one of many questions that I had to establish that. MR. ROSEN: Your Honor, can I ask for a proffer outside the presence of the witness so we don't waste all day with this as to what Mr. Dandar will proffer to you as a factual basis this witness will testify to which makes him adverse under the code? THE COURT: No. BY MR. DANDAR: Q. Dr. Garko, did you meet in private with your attorney, Mr. Scrivens, with Mr. Weinberg representing the Church of Scientology? MR. ROSEN: Objection. The fact that he meets with his attorney with an attorney for the church makes him adverse? THE COURT: Nothing is determined yet, Mr. Rosen, and it never will be if he never gets to answer the questions, so let's, you know, wait until he's finished with what he claims to be the proffer and then -- or the basis for the foundation -- and then we'll hear what you've got to say about it. BY MR. DANDAR: Q. Did you meet with Mr. Weinberg? A. You used the word in private. What do you -- can you be specific? What do you mean by in private? Q. Did you meet with Mr. Weinberg at your attorney's office with your attorney present? A. Yes, I did. Q. All right. Did you have that meeting the afternoon before you came in and testified for the Church of Scientology? A. No. Q. When did you have that conversation, that meeting? A. I testified in Judge Schaeffer's court it was the day before. Q. I thought that's what I said. I’m sorry. A. Maybe I misunderstood you. Q. Okay. And before you met with Mr. Weinberg, he sent you a letter -- he sent you a letter saying that the Church of Scientology Flag Service Organization was going 42 to dismiss you from this case before Judge Baird because they had no evidence against you; is that right? A. Yeah, that's correct. MR. DANDAR: I would like to have this marked as the defense exhibit. Who marks it? Should I just mark it? THE COURT: No. MR. ROSEN: Mr. Dandar, can I have a copy? MR. DANDAR: You most certainly may. THE COURT: Which exhibit is this? MR. DANDAR: I believe it will be Number 1. MR. ROSEN: No. It's Number 3. It's Defendant's 3. THE COURT: Okay. BY MR. DANDAR: Q. Take a look at Defendant's 3 for identification. Did you receive this letter? A. My attorney did. Q. Did you see this letter? A. I did. Q. Do you have any idea why this letter was sent to you on Friday, June 8th before you met with Mr. Weinberg on the following Monday? MR. ROSEN: Objection. Calls for 43 speculation, "Do you have any idea why an attorney did this"? THE COURT: Sustained. BY MR. DANDAR: Q. Did you know that you were about to receive this letter before your attorney got it on June 8th? A. No, I didn't. MR. DANDAR: I would like to move this Defendant's 3 in evidence. MR. ROSEN: My objection is only relevance, Judge. THE COURT: It will be received. BY MR. DANDAR: Q. Let me show you what we'll mark -- in Judge Schaeffer's courtroom it was Exhibit 190: in this courtroom it will be Defendant's 4. I'm handing you Defendant's 4 marked by the Court. Have you seen that before? A. I have. Q. And what is it? A. It's a release agreement and covenant not to sue. Q. Is that signed by Mr. Ben Shaw? A. It is. Q. Was Ben Shaw present when Mr. Weinberg met you and your attorney? A. No, he wasn't. 44 Q. And who drew up this covenant and release agreement? A. I believe it was my attorney, Mr. Scrivener. Q. In the first paragraph of the release agreement and covenant not to sue, Defendant's 4, it states that the Church of Scientology Flag Service Organization is releasing you for valuable consideration, quote, the receipt and sufficiency of which are hereby acknowledged, closed quote. What consideration did the Church of Scientology receive to release you from any and all claims? A. I have no idea. Q. Now, before you testified before Judge Schaeffer, did you tell Mr. Weinberg anything differently than what you said under oath in the hearing before Judge Schaeffer? MR. ROSEN: Objection. We're not trying the wrongful death case before Judge Schaeffer here. I don't understand this question, and it certainly doesn't go to the premise of this witness is adverse. THE COURT: It's a little too vague. BY MR. DANDAR: Q. Okay. After the hearing of April 9th, Mr. Lirot who attended that hearing, did you meet with him at the courthouse in Tampa?  Q. to me in A. I did, along with you, Mr. Lirot, Patricia Greenway, and an expert witness we were using in a case that we were trying that day. They were also present. Q. When you say we were trying that day, I was the attorney in a trial in Tampa? A. Correct. Q. Okay. And after that day in court and after you heard Mr. Lirot said about the hearing on April 9th, did you and I have a discussion? A. We did. Q. And did we have a discussion both in the meeting room in the courthouse as well as in the parking lot next to the courthouse? A. We had a conversation in a waiting room, witness waiting room, I believe it was. We had a conversation in the hallway of the courthouse going to the elevator. We had a conversation in the elevator. We had a conversation down the elevator, out through the courthouse, down the elevator, out through the courthouse, down the street, into the parking lot. Q. And would you agree that those conversations were - you were very upset with me? A. I was very concerned about what I had heard from Mr. Lirot and upset with you. Upset, disappointed. Q. Did you threaten me that you were -- did you state to me in the parking lot that you were going to go hire a 46 lawyer? A. No, that's not what I said, Mr. Dandar. To give that context -- Q. I just asked you that question. A. No, that's not what I said. Q. Okay. Now, since that time, and excluding Judge Schaeffer's hearing where you appeared to testify for the church, did you have any conversations with me? MR. ROSEN: Objection. It's irrelevant. THE COURT: Overruled. THE WITNESS: I'm sorry. Repeat your question, please. BY MR. DANDAR: Q. Since that day on April the 9th when we parted in the parking lot until you testified before Judge Schaeffer, did you have any conversations with me? A.ot with you but with your attorney. Q. Mr. Lirot? A. That's right. Q. Okay. And during that time-from April 9th to the time we met at the courthouse and when you testified, did you have any conversations with Mr. Minton? A. I had a conversation -- yes. Q. Did you go to see Mr. Minton when he was staying on the beach during the pendency or after he testified on 47 April the 9th? A. Yes, I did. Q. Do you recall what date that was? A. I don't remember the exact date. It was the first Sunday following April 9th. Q. Okay. And when you went to see Mr. Minton, did he have any conversation with you concerning him meeting with you, me, Jesse Prince, Stacy Brooks in my office to discuss adding on David Miscavige? MR. ROSEN: Objection, two grounds. This not only calls for hearsay, but this again has nothing to do with the premise this is an adverse witness. MR. DANDAR: It's not a leading question. MR. ROSEN: I would object to the solicitation of what other people in this meeting said. And I remind the Court of a comment I made earlier. This witness has now testified that this meeting occurred on the Sunday after April 9th. That would have been April 14th. Mr. Minton was on the stand in this court on April 19th and cross-examined. MR. DANDAR: We11, that's another question. I will get there. 48 BY MR. DANDAR: Q. Not telling us what the conversation with Mr. Minton was, did you ever tell me that you met with Mr. Minton? A. Did I ever tell you? Q. Yeah, before you testified before Judge Schaeffer? A. I never spoke with you, Mr. Dandar. Q. Right. And contrary to Mr. Rosen's comments to the Court this morning, were you sitting here as my jury trial consultant on April 19th? A. I don't think I was. Q. In fact, the last time you served as my jury trial consultant on any case was April the 9th, correct? A. That's my recollection. MR. ROSEN: I stand corrected. BY MR. DANDAR: Q. Now, did Mr. Minton tell you about this meeting where you're present, I'm present, Jesse Prince was present and Stacy Brooks are present discussing the addition of Mr. Miscavige as a defendant in the wrongful death case? MR. ROSEN: Objection, same objection, calling for hearsay. MR. DANDAR: Judge, you already said it's admissible under 9802. THE COURT: Overruled. 49 THE WITNESS: Are you talking about when I met with Mr. Minton - BY MR. DANDAR: Q. Yes. A. -- on Sunday, April 14th, is that what you're talking about? Q. Yes. A. What did he tell me about that meeting? Q. Yes. A. He told me that he was present, you were present, I was there, Jesse was there and Stacy was there. He mentioned to me the position that I took regarding the adding of David Miscavige. He talked about that. He talked about a conversation he had with you, I believe, in an elevator subsequent to the meeting, in which you were to have said to him something to the effect of this -- no one is to know about this conversation or this meeting is to be kept quiet or something to that effect, in essence that this was not for public consumption. I don't know the exact quote, but something like that. He talked about my position regarding the adding of David Miscavige to the wrongful death case. He recalled that -- you asked me what he talked about, and some of this may be inane to you, but he talked about the weather. He said, I remember, that it was very 50 hot. He talked about it being -- the meeting taking place in your new office. Q. Which office? A. The one on -- which one was it now -- the second one, the one -- I think it was on Kennedy. Is it on Kennedy? Q. Kennedy, okay. A. He talked about there was clutter in conference room because you had just moved in there. Q. You had an office there too, didn't you? A. Yeah, yes, I did, at least for a while. He -- that's all I can recall at the moment. Something may come to me as we go along here, but that's all I can remember at this moment about what he said regarding that meeting. That's all I remember at the moment, Mr. Dandar. Q. Did you have a reply to that? A. Well, I did. About the meeting? Q. Yeah. MR. ROSEN: I'm confused; Your Honor. Are we talking about the meeting on Sunday the 14th? BY MR. DANDAR: Q. Yeah. Did you have a reply to Mr. Minton on April the 14th when he told you about this meeting that he 51 said took place in my office on Kennedy Boulevard? A. I did. I replied to his general conversation about that. I reiterated my position regarding that meeting, and I told him that it was my position in that meeting, it was my position prior to that meeting, and it was my position even on that day of April 14th, that David Miscavige should not have been added to the wrongful death case, and I gave him three reasons. And I said, "If you recall, Bob, I gave somewhat of a speech about the adding of David Miscavige and why he shouldn't be added. From a jury trial consultant's perspective, I thought it was imprudent." And I said, number one, David Miscavige shouldn't be added because -- I used the metaphor of a smoking gun -- I said there's no smoking gun to support the claim in the Fifth Amended Complaint that David Miscavige knew about Lisa McPherson being in the Ft. Harrison Hotel and giving the order to, quote, let her die, end quote. I said, "There's no e-mail, there is no letter, there is no witness, there is no smoking gun." And I reminded him, I said, and the second reason I gave in that meeting as to why David Miscavige should not be added to the Complaint was that you had struck -- I said Ken had struck a -- not a deal -- but had signed a contract or an agreement with Scientology not to 52 add parties. I said, admittedly, I'm not a lawyer, but I told Mr. Dandar -- I told Ken as I said to him -- I told Ken that you have a legal hurdle to jump here. And I'm not an attorney and I don't know how or in what ways such a contract or agreement could be legally or ethically circumvented; I just felt it was problematic for you to deal with, and quite frankly a big distraction. And the third reason I gave, which is, I felt, a practical reason, is I said nobody is ever going to be able to serve David Miscavige a document, a subpoena, or any other document to put this kind of decision into process. You're not going to be able to serve him. And I reminded Mr. Minton, I said, and as it turns out, I was right on all three points. And I explained that to him, and he said I recall you making that argument. Q. Dr. Garko, my question was: Did you agree with Mr. Minton that a meeting took place between you and me, Stacy Brooks, Jesse Prince and Mr. Minton as outlined in Mr. Minton's recantation affidavit in my office on Kennedy Boulevard? A. That wasn't your question. Your question is what did I say to him in response to his discussion about the adding of David Miscavige, and I just answered your 53 question. Q. Okay. I'm sorry. So my next question is, did you correct -- did you have any reply to Mr. Minton when he said that a meeting took place between you and I, Stacy Brooks, Jesse Prince and he in my office on Kennedy Boulevard discussing the addition of Mr. Miscavige as a defendant? A. I did talk to him about that, and I said that I did not view it as a formal meeting. I tried to explain to him my perception of what went on that day when I was in the room with you, him and Stacy Brooks. Q. So Jesse Prince wasn't there? A. I don't have a recollection of that. Q. You've read the affidavit of Mr. Minton where he describes this meeting, that he flew into Tampa especially for the meeting to come to my office with an elevator, to discuss adding on David Miscavige with all of those individuals. A. I read his affidavit, yes. Q. And did you reply to Mr. Minton on April 145h that that meeting that he described never took place? A. What I said to him was that it was not a formal meeting. I viewed it as, for lack of a better term, a conversation. I mean, he and Stacy -- my recollection is that 54 he and Stacy Brooks stopped by the office, they did go into the conference room, we did go in there, and we were sitting around talking. I didn't view it as a driven -- an agenda-driven meeting. I just didn't see it that way. I saw it as a meeting, call it. Q. Was Jesse Prince there? A. I don't have a recollection of Jesse Prince being there. Q. And was Brian Haney there? A. I don't have any recollection of Brian Haney being there either. Q. Did this take place in my old office on O'Brien, the one you're talking about? A. No, no, no, I'm talking about -- no. The meeting that I'm thinking about - no. The meeting that I’m thinking about are the -- this event, whatever you want to call it, took place in your other office where there's an elevator. I think that's Kennedy Boulevard. Q. And do you recall when I moved into that office? A. I think I do. I helped you move. Q. Do you remember? A. I don't have a real clear memory of that. 55 Q. Okay. Well, isn't it true that the meeting that you're talking about that's not a meeting -- just dropped in out of the blue and said hi kind of a meeting, get together -- didn't that occur after the October 8th '99 hearing with Judge Moody where he upheld the stipulation? A. I'm unclear as to when it happened. My recollection is that we had been before Judge Moody on this issue at least twice. I remember you filed a motion to add David Miscavige as a party, and I believe Judge Moody denied that motion and you went back. Again, this conversation with Mr. Minton and you and Ms. Brooks and myself occurred either between those two hearings or subsequent to the second ruling by Judge Moody. I'm unclear as to exactly when. Q. And do you remember the second ruling by Judge Moody? A. I do remember that. Q. He permitted us to add him on? A. That's my recollection. Q. Now, let me see if I can help you out on dates. The hearing with Judge Moody the first time where he upheld the stipulation was October the 8th of '99. MR. ROSEN: Objection, leading. Mr. Dandar testified as to when it happened. THE COURT: Overruled. Go ahead. 56 BY MR. DANDAR: Q. I moved into my office on November 1st of '99. Okay? A. Okay. Q. The second hearing with Judge Moody is in the middle of December -- A. Okay. Q. -- '99. Does that help refresh your memory as to when Mr. Minton dropped in out of the blue to talk to us and say hi? A. I really don't remember. I'm not clear. Q. Okay. All right. So when you told Mr. Minton that this so-called special meeting that he describes in this recantation affidavit did not take place the way he described it, the people weren't there as the way he described it, people being there like Jesse Prince, did he have a reply to that? MR. ROSEN: That question is complete with testimony by Mr. Dandar. Can we just stick to questions, Your Honor? Mr. Dandar is testifying about some affidavit that's not even before the Court as to whether Mr. Prince is in this meeting. THE COURT: Would you restate the question? 57 MR. DANDAR: I will. BY MR. DANDAR: Q. This drop-in by Mr. Minton and Ms. Brooks -- MR. ROSEN: Objection to the characterization of the drop-in. THE COURT: I think I know what he's talking about. MR. ROSEN: Okay BY MR. DANDAR: Q.-- that you described, present at that meeting or the drop-in, whatever you want to call it, was me, you, Minton and Brooks. MR. ROSEN: Your Honor, Mr. Dandar is testifying. THE COURT: He's asking a question. I believe that's the testimony, but I'm not sure, so I would like to hear the answer, okay? THE WITNESS: My recollection is -- THE COURT: Who was present at that meeting? That's kind of the way you ask a question, you know? THE WITNESS: I was present, Your Honor. Mr. Dandar was present, Mr. Minton was present and Ms. Brooks was present. I don't have a 58 recollection of -- THE COURT: So you don't recall anyone else other than those four? THE WITNESS: I don't. THE COURT: All right. Thank you. Move on. BY MR. DANDAR: Q. Now, at that meeting that you just described for the Judge -- A. Yes. Q. -- did Ms. Brooks make any statement about the addition of David Miscavige? A. I mean, she made several comments along the way. Could you be more specific as to -- Q. Did she say something that caused you or shocked you about her position on adding David Miscavige? A. After I made the argument as to why I believed David Miscavige should not have been added or be added as a defendant in the wrongful death case, she looked over at you and said, "And so why did you add him, Ken," something to that effect. That's my recollection, "So why did you add him, Ken?" And I was surprised by that. BY MR. DANDAR: Q. Why were you surprised by that? 59 A. Because I knew that she was the person who came up with that idea, that she was the creator of it, the architect of it, whatever term you want to use. It was her idea. And when she responded that way, it just sounded odd to me. It was like -- I mean, she was encouraging you to do that. She was the one who was making that argument. I was opposed to it, as you know. MR. DANDAR: Okay. If you will give me a minute, I will get the right one. There's like five recantation affidavits in here. MR. ROSEN: I can't hear you. Your Honor, can I ask Mr. Dandar to speak up? I simply cannot hear him. THE COURT: I think he's just mumbling to himself at this point. MR. ROSEN: Okay. BY MR. DANDAR: Q. All right. Dr. Garko, you did review the recantation affidavits of Mr. Minton? A. I did. Q. And -- well, you know what, I will just come back to that. Okay. THE COURT: While we've got a short break here, why don't you either -- you or Mr. Rosen -- can 60 explain to me procedurally how this Miscavige motion in front of me went. My understanding is that you moved to amend the Complaint to add him as a party. MR. DANDAR: Him and two corporations and two other individuals. THE COURT: All right. And then there was a hearing, and that was denied. MR. DANDAR: Yes. THE COURT: And then there was another hearing and it was granted. MR. ROSEN: No. MR. DANDAR: I will explain how it happened. THE COURT: No. There was an order saying you may add him as a party. MR. DANDAR: Yes. THE COURT: Okay. And then how did they finally get removed as a party? MR. ROSEN: What happened is this: Mr. Dandar's first motion to amend which was filed in September of 1999 was a motion to add five defendants, including Mr. Miscavige. Judge Moody said no. That motion that was filed is the subject 61 of the breach case. That was the breach of the agreement not to add parties. After Judge Moody said no, Mr. Dandar came back in December with a second motion, this one only to add Mr. Miscavige, not the other four. And he did it on the eve of the statute of limitations running out. Judge Moody said, "You want to do this, you act at your peril. This may be a breach of this contract, but you want to add him, you're telling me the statute is running out," he had an immediate hearing and he said go ahead and add him. That was the second breach that resulted in the judgment in Texas that was before you on domestication. Mr. Dandar then purported to serve Mr. Miscavige as a defendant in the wrongful death case. I was brought in to represent Mr. Miscavige; that's my appearance in the wrongful death case. I argued a series of motions before Judge Moody. One was the service was no good. Two was the motion to dismiss. Three was summary judgment. Judge Moody then ruled that the service 62 was insufficient, the service is quashed; and in view of that determination, I don't have to address the other issues that you raised. So service is no good; Mr. Miscavige is not presently in. Mr. Dandar then told -- I think it was Judge Quesada who at that time took over from Judge Moody on the wrongful death case -- we're not going to try to re-serve him. So he was stricken from the caption. The only consequence of the second one, of the second motion, which was successful before Judge Moody, is, as I said, it resulted in a breach case in Texas which is now the judgment is back before you. THE COURT: Fine. MR. DANDAR: Would you like to see the order? THE COURT: No, I just wanted to understand it. MR. DANDAR: Well, what he said isn't exactly correct, but... THE COURT: Well, it's not that important. MR. DANDAR: It isn't? THE COURT: No. I only understood about 63 the one regarding the, you know, related organizations. I presume that that was the difference, that there was a difference between an individual or a related organization in terms of the agreement or at least that was the argument. MR. ROSEN: No. The first one was to name two churches and three individuals, including Mr. Miscavige. The second one was -- Mr. Dandar's position was we're adding Mr. Miscavige not as the head of RTC, but we claim he acted in some other capacity, and therefore the agreement not to add the churches or their executives does not cover actions taken ultra vires by an executive. THE COURT: Okay. I understand. BY MR. DANDAR: Q. During your years as my jury trial consultant, Dr. Garko, did you ever see Mr. Minton interfere with the conduct of the wrongful death case? MR. ROSEN: Objection. Calls for a conclusion under the canons. It's a conclusion of law. 64 THE COURT: Overruled. THE WITNESS: Could you explain what you mean, give me more specificity? What do you mean by interfere with the conduct? BY MR. DANDAR: Q. Interfere by saying do this and don't do that, things like that. A. I recall him saying on a number of occasions that you needed to use Stacy Brooks and Jesse Prince more. Q. In which way, use them more how? A. That you needed to follow their advice about issues that were related to the religion of Scientology and to include that component or that issue in the wrongful death case, that to make it more of a Scientology case than a wrongful death case. Q. Isn't it true, Dr. Garko, that throughout the time that you were my jury trial consultant you saw Mr. Minton having no involvement in the wrongful death case, that he was aloof, as you put it, in the wrongful death case? MR. ROSEN: Object to the form of the question. THE COURT: Overruled. THE WITNESS: I have characterized him as being aloof. I wouldn't say that he was never involved in the case. I mean, he was involved. 65 He was concerned. He demonstrated that concern. He was enthusiastic about the case, and he demonstrated that in a number of different times and places and contexts, situations, if I understood your question. BY MR. DANDAR: Q. Did you ever see me follow his advice and make the wrongful death case more focused on the Scientology aspects? A. His advice? Q. Yeah. A. I was never present in any conversation where I heard Mr. Minton say, Ken, you should do X, Y or Z and then you went and did X, Y or Z. If that's what you're asking me, I never heard those kinds of conversations. Q. All right. Now, I want to show you what's already in the court record. MR. DANDAR: And, Judge, if you need a copy of this, I can give it to you. It's a recantation affidavit number two of Mr. Minton filed by Mr. Howie, his attorney, on April 29th, 2002, and I want to show this to the witness. MR. ROSEN: Can I have a copy, Mr. Dandar? 66 MR. DANDAR: I don't have an extra copy. MR. ROSEN: I'm sorry? MR. DANDAR: I'm sorry? MR. ROSEN: May I see it before you show it to the witness? MR. DANDAR: I'm going to show him Paragraph 17, beginning on Page 6. MR. ROSEN: I just want to see the affidavit. Your Honor, I object to this. This is an affidavit that was filed, the recanting for purposes of the perjury statute. And the reason -- this is an appropriate example of why I asked for a proffer. I believe that what Mr. Dandar is now going to do is to try to impeach a witness, Mr. Minton; by asking this witness if the statements in the affidavit are true. I think that's improper. MR. DANDAR: That's not what I'm going to ask. THE COURT: I don't know what he's going to do. I guess we'll wait and see. BY MR. DANDAR: Q. Read out loud Paragraph 17. A. Paragraph 17?  67 Q. Yes. A. On Pages 6 of 20 and 7 of 20? Q. Yes. A. "In the fall of 1999, I flew to Tampa Airport and was picked up by Ms. Brooks and taken to Mr. Dandar's new office on Kennedy Boulevard in Tampa for a meeting concerning whether Mr. Dandar should add David Miscavige as a defendant in the wrongful death case. "Attending that meeting in Mr. Dandar's new conference room were Ms. Brooks, Mr. Prince, Dr. Garko, Mr. Dandar and myself. "The focus of the discussion was not -- was not what the facts were concerning Mr. Miscavige, but how to pressure him." Q. Did you have a conversation with Mr. Minton about that allegation that you just read in his affidavit? MR. ROSEN: I'm sorry. What's the date of the affidavit? MR. DANDAR: I previously said it's April 29th, 2002. MR. ROSEN: Your Honor, the witness testified to a conversation with Mr. Minton on Sunday, April 14th. I don't understand the question. Did he have a conversation with him at that meeting about an affidavit that was 68 filed two weeks later? BY MR. DANDAR: Q. Did you have a conversation on that subject matter with Mr. Minton after April 9th?. A. April 9th of 2002? Q. This year, right. A. A conversation with him about the meeting? Q. Yeah. Did you have a conversation about -­ A. Yes, I did. I had a conversation with him about the meeting. Q. And did you tell Mr. Minton that that meeting did not take place as he described in his affidavit? MR. ROSEN: Objection. How can he tell him on April 14th that a meeting described in an affidavit of April 29th didn't take place? MR. DANDAR: I didn't ask him about April 14th. I asked him after April 9th, did he have a conversation with Mr. Minton about his statement in that affidavit? MR. ROSEN: Could we establish when that was? THE COURT: All right. Well, if it was about the statement in the affidavit, then it would have had to have been after the affidavit, correct? 69 MR. DANDAR: Yes. THE COURT: All right. So let's ask him that first. Did you have a conversation with Mr. Minton after -- what was that, the 29th? MR. ROSEN: Yes. MR. DANDAR: Yes. THE COURT: -- the 29th of April regarding statements that he made in that affidavit? THE WITNESS: I don't believe I did, Your Honor. BY MR. DANDAR: Q. Is the first time that you are aware that Mr. Minton was claiming that a meeting took place with me and you, Brooks, Prince and him in my Kennedy Boulevard office with an elevator, was that on April 14th? A. No. Q. When was it? A. It was the day Mr. Lirot came to the courthouse in Hillsborough County with Ms. Greenway and summarized the hearing in Judge Baird's court that day, and that was the first time I learned about a number of different things. But, I mean, he talked about, you know, this meeting. And I think he testified. I think that's my recollection of one of the things Mr. Lirot summarized.  Q. Okay. And as you sit here today, is it your recollection that that meeting took place or did it not take place? And we probably went over this. I don’t know. A. I objected to the characterization of it as being a meeting. I'm trained in such a way when somebody says you're going to have a meeting, the first thing that comes to my mind is I ask what’s the agenda, you know. It's true, there are impromptu meetings, but I just didn't see it as a meeting where -­ if he had an agenda, I didn't know about it. I just thought he was coming by the office with Ms Brooks. I went into a conference room, I sat down, we talked about various things. And this business about pressuring Mr. Miscavige came up, and I tried once again to voice my concern that we shouldn't do this, and that’s the context of why I gave my argument. So the pressuring business that I just read is what prompted me to give my speech about why this was an imprudent thing to do. Q. And Mr. Prince was not present at the meeting or the get-together or whatever it's called that you're referring to? A. I don't recall him being there. Q. And neither was Mr. Haney? 71 A. I don't recall him being there. Q. Okay. And Dr. Garko, are you aware of any agreement by the Estate of Lisa McPherson to give Mr. Minton or the Lisa McPherson Trust the bulk of any hoped-for proceeds from the wrongful death case? A. Written agreement? Oral agreement? Q. Either. A. I'm not aware of any formal, oral or written, agreement to do such a thing. Q. Are you aware of the beneficiaries, the ultimate beneficiaries, the aunts and uncle of Lisa McPherson, having any plans to use the hoped-for proceeds of the wrongful death case for any cause? MR. ROSEN: Objection, Your Honor. Among other things, calls for a legal conclusion by this witness, a non-attorney, as to who the beneficiaries are of an estate. THE COURT: Overruled. THE WITNESS: I just recall from depositions that were taken in Texas of the family, of the Lisa McPherson family, Lisa McPherson's family, there were questions about that issue, and I recall family members talking about that there was a potential to use any monies that were awarded in this case to fight 72 Scientology or some such notion. recollection of that. BY MR. DANDAR: Q. Now, whenever I would receive any money from Mr. Minton, Dr. Garko, were you aware of that? MR. ROSEN: Objection. There's no foundation. How could this witness possibly answer that question? MR. DANDAR: Well, it's a question to establish if there's a foundation. If he says no, then I agree with Mr. Rosen. BY MR. DANDAR: Q. Are you aware of when Mr. Minton would give me any money? A. Apparently on some occasions I was aware, and on other occasions I was not aware. Q. Okay. Dr. Garko, did you ever tell me that you were going to or that you did, in fact, meet with Mr. Weinberg in Mr.Scriven's office? A. Did I ever tell you that I was going to do that? Q. Yes. A. No. My attorney tried to contact you, but I never talked to you. Q. Do you know if you or your attorney ever told my attorney, Mr. Lirot, that you were going to meet with  73 Mr. Weinberg to prepare for your testimony as a witness for the Church of Scientology? A. I don't know what Mr. Scriven may have communicated to Mr. Lirot. Q. All right. Have you met with anyone associated with the Church of Scientology since you testified before Judge Schaeffer? A. No, I haven't. Q. Have you talked to anyone associated with the Church of Scientology? A. No, I haven't. Q. Are you aware of any meeting with Bob Minton in attendance where it was discussed in front of him to add on David Miscavige in the wrongful death case before we first went to court for the very first time in October to request the addition of Mr. Miscavige and to set aside the 1997 agreement not to add on further parties? MR. ROSEN: Objection to the testimony and to the question. There was no going to court to set aside any agreement. MR. DANDAR: Judge, I just can't -- I have to give you this order because that's a bold face misrepresentation to the Court. MR. ROSEN: It was filed after the motion was filed, and Mr. Dandar forgot to tell Judge 74 Moody that there was this agreement. When he got caught submitting a motion without disclosing a prior agreement, that's when he filed a declaratory motion that the agreement is no good. You don't file that as part of the motion. He never disclosed it. In fact, he accused us of breaching confidentiality -- THE COURT: So your motion that you originally filed with Judge Moody was to add parties and to set aside the agreement? MR. DANDAR: The first motion was to add parties. The second motion was to set aside the agreement. Mr. Fugate representing Flag brought it to my attention -- THE COURT: Oh, you had forgotten about it? He had to bring it to your attention? MR. DANDAR: No. He wrote me a letter warning me that there was an agreement, so I filed this motion to set aside the agreement which was the first thing heard before Judge Moody, and the order of October 22nd -- THE COURT: So we've got it straight, you filed a motion, you didn't say anything to Judge Moody about the existence of an agreement 75 saying you wouldn't do such a thing, then Lee Fugate calls you, and so you file an amended motion that does say something about it, right? MR. DANDAR: It came up in the very first hearing before the October 8th hearing, and we didn't argue the motion at that time because there was no time left, and so then I filed a motion to set aside the agreement. THE COURT: Okay. I understand the process. So what's your question to him? BY MR. DANDAR: Q. Was there ever a meeting before we went in before Judge Moody in October where Mr. Minton was present and we discussed in front of him to add on David Miscavige in the wrongful death case? A. I never attended any such meeting. Q. Did we -- you and I - ever have a meeting where we sat down with Stacy Brooks where we sat down strategized on the case of how we needed to add on more parties, for any reason? Without telling us any of the substance of the discussions, my question was: Was there any such meeting where we sat down with Stacy Brooks to strategize on adding more parties? A. My recollection was that there were various conversations at different points in time involving 76 Ms. Brooks and the litigation of this case and that particular issue, among other issues. Formal meetings, you want to call them meetings, I don't know. I do recall her advising, making arguments, about these kinds of issues. Q. I want to read for you from Page 93 of your testimony before Judge Schaeffer on that question. A. Right. Q. And the testimony is from June 11th, 2002. A. Right. Q. On Line 19, question, "Did we ever have a meeting with her where we sat down and strategized on the case of we need to add on more parties, for some reason, without telling us what the meeting was about?" Answer, Line 23, "I don't have a recollection of that." A. That's right. MR. ROSEN: Objection, Your Honor. What is the purpose of reading this? That's not impeachment. That's exactly what the witness just said. MR. DANDAR: I don't think that's what he said. I wanted to clarify that with the Court. THE COURT: Well, it sounded to me like it was exactly the same question and exactly the 77 same answer. Apparently there were various conversations, but apparently there was no meeting regarding the issue of adding parties. BY MR. DANDAR: Q. Dr. Garko, is Stacy Brooks a trial consultant on the wrongful death case? A. My understanding was that she was at certain times, yes. Q. Okay. A. You said trial consultant, Mr. Dandar? Q. Not like you, but a consultant on Scientology, a consultant in the case. A. Yes, I understood her to be a consultant with respect to Scientology matters, yes. Q. You were the only jury trial consultant, correct? A. That I know of on the case, yes. Q. Now, Dr. Garko, do you recall Mr. Minton asking me to go to his house in New Hampshire in February of 2002? MR. ROSEN: Objection. Is this going for hearsay, "Do you recall Mr. Minton asking me?" MR. DANDAR: Technically I'm a party too, I guess. I'm just trying to lay a foundation for my next question. THE COURT: All right. Go ahead. 78 THE WITNESS: I do recall. BY MR. DANDAR: Q. Okay. And do you know the purpose of that trip -- MR. ROSEN: Continuing objection, Your Honor. THE COURT: You know, I'm not sure - MR. DANDAR: I will withdraw that question. BY MR. DANDAR: Q. During the weekend trip to Mr. Minton's house in New Hampshire, did he mention anything about -- THE COURT: Wait a minute. Did he go on the trip? MR. DANDAR: Yes. THE COURT: I don't know that. You know lot about this that I don't, so try to explain it to somebody who hasn't heard it before, okay? MR. DANDAR: Okay. I'm sorry. THE COURT: Did you go on a trip with Mr. Dandar up to Mr. Minton's house in Connecticut? THE WITNESS: I did. MR. ROSEN: I think you misspoke. It's New Hampshire, not Connecticut. 79 THE COURT: It's all the same to me. MR. ROSEN: Someplace up north. THE COURT: When did this trip take place? THE WITNESS: It took place prior to -- I don't have the exact date, Your Honor. Sometime, I think, in February, I believe. THE COURT: Okay. All right. What was your question about this trip? MR. ROSEN: February of what year? THE WITNESS: Of 2002. MR. ROSEN: Thank you. I'm sorry. BY MR. DANDAR: Q. And during this weekend at Mr. Minton's farmhouse in New Hampshire in 2002, was there a discussion about funding the case? A. Oh, yes. Q. And what did Mr. Minton say about funding the case? A. I can talk a long time about that. I mean, that's a very open-ended question. Q. Well, I don't want you to talk a long time. THE COURT: That's true. Do you want him to just go on about it or do you have a specific question? BY MR. DANDAR: 80 Q. Yes. Did Mr. Minton in your presence say that he was going to continue to fund the case? A. He didn't say that. Q. Did Mr. Minton say, in your presence, that he was not going to fund the case anymore? A. He did say that. Q. Did Mr. Minton say in your presence, however, he had friends in Europe who were interested in funding the case? A. I don't know if he said it exactly that way. Q. Well, put it in your words of how you remember it. THE COURT: Put it in his words. That would be better. THE WITNESS: I recall Mr. Minton saying something like he was not going to fund the case, and then we queried him on did he know anybody else that would be inclined to do that. He said he might know some people in Europe. That's what I recall him saying. MR. ROSEN: Your Honor, I need to object and move to strike this. This is precisely the Queen's Bench type -- what I referred to as the Rule of Queen's Bench. Mr. Minton was on the stand. Mr. Dandar was obviously at this meeting. He wasn't asked 80 about this. I don't understand how he could not ask Mr. Minton, let him leave the witness stand and now bring in a witness to testify as to this where Mr. Minton is being denied of his -- and not only him, but us -- denied of his ability to have Mr. Minton's testimony on this subject? MR. DANDAR: Judge, it goes to -- and I believe -- I mean, I will go look it up, but I think this was brought up when Mr. Minton testified before you. And, yes, I'm operating here at somewhat of a disadvantage because I spent 35 days with Judge Schaeffer, so you're right; I've got all of this in my mind, and I believe -- that's all I can say -- that on April 19th Mr. Minton talked about this. I will go and double check. But it is part of one of their issues that they raise about the concealment of a May 2000 check. THE COURT: May 2002. MR. DANDAR: No. Actually, their issue Number 6 is a May -- THE COURT: Oh, right, right, May 2000, right. That's Exhibit Number 5.  82 MR. ROSEN: May 2000. MR. DANDAR: May 2000 concealment of a UBS check in his May 24th, 2000 deposition. Of course, they also argued to you on April 9th on questioning Mr. Minton that he concealed a March 2002 check from the Switzerland bank, but I don't know how he did that since that wasn't part of any deposition question. THE COURT: I thought we were talking about a conversation in February of 2002. MR. DANDAR: We are. THE COURT: Okay. So what's the May 2000 check got to do with that? MR. DANDAR: I don't want to say it in front of the witness, unless you want to have a side bar. I just wanted to ask the witness a follow-up question on Mr. Minton's comments about getting money from friends in Europe. That's all. THE COURT: Okay. MR. DANDAR: I'm told that on Page 881, Line 22 of Mr. Minton's testimony, he talks about - MR. ROSEN: Whose testimony? 83 MR. DANDAR: I'm sorry. That's Judge Schaeffer's courtroom. That's irrelevant. I will try not to do that again. MR. DANDAR: Dr. Garko -- no, that's not an issue. I'm sorry. MR. ROSEN: I can't hear. MR. DANDAR: That's not an issue. I'm not going to ask the question. sorry. BY MR. DANDAR: Q. Dr. Garko, you already said that you attended the Robert Minton deposition of May 24th, 2000. A. That's my recollection, yes. Q. Are you aware of any moment in time when I met with Mr. Minton or talked to Mr. Minton about preparing him for that deposition? A. My recollection is I don't have a recollection of meeting met with Mr. Minton prior to his deposition, that you met with him. I don't have a recollection of that. I didn't see it. I wasn't in attendance. MR. ROSEN: Your Honor, I don't want to sound like a broken record, but the reason I asked for the proffer, Mr. Minton testified that Mr. Dandar made a statement to him between the two of them. He's going into that deposition. Mr. Minton didn't testify that 84 Dr. Garko was there. THE COURT: I think Dr. Garko just said he wasn't there either. MR. ROSEN: But my question. is what's the purpose of even eliciting that he wasn't there? THE COURT: Well, I don't know, but we're somewhere, I guess. BY MR. DANDAR: Q. Dr. Garko, were you or were you not at the May 24th, 2000 deposition of Mr. -- THE COURT: That isn't the question. You asked whether or not he had met with Minton and you prior to the deposition to prepare for the deposition. That's what you asked. And he said, no, he didn't remember being with him prior to, to prepare for the deposition. MR. DANDAR: Okay. I'm sorry. BY MR. DANDAR: Q. Did you observe any conversation that I had with Mr. Minton the day of the deposition before the deposition started on May 24th, 2000? A. You talked to him, yes. Q. Were you present? A. My recollection is I think we stood in the hall 85 and chatted before the deposition, during the deposition -- I mean, after the deposition. Q. Was there any conversation from me to Mr. Minton for him to lie or conceal the UBS check? A. No conversation ever took place where you asked Mr. Minton to perjure himself, not in front of me. Q. In all of the years that you have known me, Dr. Garko, have you ever known me to ask any witness to lie? MR. ROSEN: Objection. Character witness? THE COURT: Sustained. That's not the issue. MR. DANDAR: Well, they have placed my character in issue. They're calling me a perjurer. THE COURT: No, no one has placed your character in issue, okay? We're talking about professionalism here. We're talking about your duty as a lawyer. We're not talking about whether you kicked the dog or were bad to your kids, okay? That's not what it's about. It's about whether or not you violated your duty as a lawyer and whether or not you suborned perjury. MR. DANDAR: Well, I believe the 86 question -- and he's known me since '98. THE COURT: It doesn't matter if he had seen you do it any number of times. It would still be irrelevant, okay? We're talking about this circumstance. We're not talking about some other. BY MR. DANDAR: Q. Dr. Garko, are you aware of any time where I've prepared an affidavit for Mr. Minton to sign stating that there was no agreement between the estate and he or the LMT to receive hoped-for proceeds from the wrongful death case? A. Out of an abundance of caution, I don't have a clear recollection of that. For some reason in my mind, there's some memory of that, but I don't have a clear recollection of that, so I just -- I'm not clear on that. I really don't remember. Q. All right. I think I'm just about done. Let me just check. Okay. For the record, Mr. Minton was questioned on April 19th commencing at Page 55 concerning the New Hampshire trip at the end of February 2002 and the UBS checks. My question to you, Dr. Garko, is: In the New Hampshire trip at Mr. Minton's house, did you ever hear Mr. Minton say that Ken Dandar wanted un-traceable money to 87 assist in continuing the case? A. I never heard him say that. Q. Okay. MR. ROSEN: If Mr. Dandar has a lot longer, I've got a nature call. I can hold it for a bit if he's close to the end. THE COURT: I've got a lunch call. BY MR. DANDAR: Q. One question: Did I ever represent Mr. Minton? A. I don't think so. I don’t recall you representing him as an attorney. Q. We talked about the May 24th, 2000 deposition. Are you aware if I met or talked with Mr. Minton to prepare him for his September 2001 deposition or his October 2001 deposition? A. I don't have any knowledge of that or a recollection of that. MR. DANDAR: That's all I have. THE COURT: Do you intend to cross-examine this witness ? MR. ROSEN: Yes, I do, Your Honor. THE COURT: Do you think that it's going to be a lengthy cross-examination? MR. ROSEN: No. I believe if I can take a nature break, my cross-examination will be less 88 than a half an hour, maybe even shorter than that. Let me be safe and say a half an hour. I don't want to disappoint you, Judge. THE COURT: You're not going to disappoint me. The thing that disappoints me is that it's noon and it's time to take a lunch break, so I hate to keep him here, especially keep his attorney here, but I think we're going to have to do that. MR. ROSEN: If you will just give me a couple minutes to mosey on down to the men's room, we can come back, and I'm sure I will be done by 12:30 if that's okay with you, Judge. THE COURT: Okay. Five minutes. (Thereupon, a brief recess was held.) CROSS-EXAMINATION BY MR. ROSEN: Q. Dr. Garko, you describe yourself as a jury trial consultant, but, in fact, you perform far greater services than a typical jury consultant who helps select jurors and looks for demographics, right? A. Yes. Q. Okay. I mean, most jury trial consultants don't attend depositions and court hearings and the like as you have; is that right? 89 A. Not necessarily. Q. Okay. You said you signed on to be a jury consultant -- a trial consultant -­with Mr. Dandar in 1998, beginning of '99, around that area? A. My recollection is the end of '98, beginning of '99, somewhere in there. Q. What was your financial arrangement? Were you being paid by the hour or a flat rate? MR. DANDAR: Relevance, privileged. THE COURT: Privileged? MR. DANDAR: It's a personal business matter between me and Dr. Garko. It's not an issue in this case. THE COURT: Overruled. THE WITNESS: Initially I was hired and I received a retainer, a monthly retainer, that would -- plus my billable hours, you know, but billable hours would certainly amount to more than the retainer, but there was a monthly retainer that I was paid. BY MR. ROSEN: Q. All right. So you were paid X number of dollars flat per month for your services? A. That's right. Q. And did that arrangement continue throughout the 90 period of your relationship with Mr. Dandar in this case, wrongful death case? The concept of retainer? A. The concept of retainer? Q. Yeah. A. Yes. Q. Did the retainer increase or -- I'm not interested in that. I'm only interested in was the basis of the payment retainer as opposed to hours? A. I received a retainer. I worked on the basis of a retainer -- Q. Okay. A. -- throughout my involvement in the case. Q. Okay. And when was it that you began to office on Mr. Dandar's premises? A. I'm not sure about that. Q. Approximately. A. Gosh, maybe a year into the case; six months, a year into the case, something like that. It was when he moved over into his new office on Kennedy, from O'Brien to Kennedy. Q. Somewhere around November of '99, in that area? A. Yes, yes. There was an office there and... Q. Okay. So you just moved in -- you started officing on his premises, and I presume you paid no rent, right? 91 A. I don't know what you mean by officing. Q. You maintained an office. A. He maintained an office. I didn't have an office. Q. And you had an office in his suite for your use. A. There was an office there that was used for the Lisa McPherson Trust, and I used that office. Q. Okay. And did you go to that office fairly regularly? A. I went to the offices regularly. I was there. Q. How frequently would you say you had conversations with Mr. Dandar on strategy issues, either in the wrongful death case or this case, whether they be adding a party, should we take this deposition, should we serve these interrogatories, anything involving what lawyers do in terms of strategy, if you can understand my broad question. And I'm just asking you for your best estimate. Did that happen once a day? Three times a week? Four times a month? Whatever it may be. A. All the time. That was part of my function as a trial and jury consultant, was to provide counsel on strategies. Q. And that counsel included being involved in questions to be asked of witnesses in depositions that Mr. Dandar was taking? A. Do you mean in preparing witnesses? Q. No, no, no, suggesting to Mr. Dandar what he might ask a witness in deposition. A. I think from time to time I did that. Q. Okay. You testified that you were hired by Mr. Dandar as a consultant in the wrongful death case. Did there come a time when you were also -- your employment was broadened, let's say, to be his consultant in this breach case? A. The breach case in Florida? Q. This case before Judge Baird in this courtroom. A. Not necessarily. I mean, specifically, I was assisting him in matters related to Scientology. To me it all sort of blended together. Q. Okay. Well, fair enough. In your mind, your services included services in this case, this breach case, right? A. Yes, I suspect that's true. Q. And you, in fact, have attended depositions held in the breach case including of Mr. Minton, right? A. Yes. Q. And you've attended court hearings - A. Sure. Q. -- in this case? A. Yes. Q. And I misspoke. On April 19th you weren't sitting 93 at counsel table; you were a witness designated by Mr. Dandar. A. That's correct. Q. So you were under the judge's sequestration rule; you were outside. A. That's correct. Q. And after April 19th, after you had ceased to perform services designated for Mr. Dandar, Mr. Dandar is the one who designated you as a witness, right? A. That's true. Q. Okay. This meeting that occurred -- excuse me. I'll strike the word meeting. I understand what you mean. A conversation that occurred on the subject of whether to add Mr. Miscavige, as you've described it -- I'm not going to take you through it again -- that conversation, now that you know the sequence of the first motion, the second motion and when Mr. Dandar moved his offices, does that help place in time when this conversation occurred? A. It really doesn't. I mean, it really doesn't. Q. Let me see if I can perhaps refresh your recollection. I believe you testified that there was conversation on the subject of, quote, whether to add Mr. Miscavige, and you spoke out that it would be a bad 94 idea for the following reasons. Now, I don’t want to be too literal with you, Dr. Garko, but I took your words, "Whether to add," as indicating that this conversation occurred before the second motion to add Mr. Miscavige. Am I understanding your testimony correctly? A. I did say, "Whether to add." Q. Am I understanding your testimony correctly? A. Understanding it to mean that the meeting took place between the two hearings? Q. Yeah, before the second motion, the motion before Judge Moody, to add Mr. Miscavige as a defendant. A. My recollection is I was making an argument not to do it. Q. Okay. Now, this is one of how many different conversations you had with Mr. Dandar -- forget Minton or Brooks -- on strategies in terms of amending complaints, you know, the five or nine amended complaints that Mr. Dandar filed throughout the wrongful death case - what is your estimate as to how many conversations you had over the years with Mr. Dandar on the subject of amending his pleadings in the wrongful death case? A. Mr. Rosen, it would be very difficult to give you a number. Q. Could you tell me, is it somewhere between X and Y 95 or it's more than two dozen or less than 2,000? Anything that would help us? A. When Complaints were amended, I would discuss with him those Complaints. Q. Okay. A. To give you an exact number would be very -­ Q. No, I don't want an exact number. I want your best approximation of how many conversations you had with Mr. Dandar on the subject of amending pleadings at various times. A. Quantitatively speaking, I could just say to you quite a few. Q. Okay. This meeting -- excuse me. I keep saying the word meeting and I need to correct myself. The conversation that occurred that you've described with Minton and Brooks and you on the subject of adding Mr. Miscavige -- I didn't hear you mention it -- was Dell Liebreich at this meeting? A. No. Q. Was she participating by telephone? A. No. Q. After the meeting, did you and Mr. Dandar get on the phone with Ms. Liebreich and get her consent to do this? A. No. 96 Q. Did you ever participate - I assume that Mr. Dandar certainly must have had conversations with Ms. Liebreich outside your presence, right? A. I assume that. Q. Did you ever have any conversations with Ms. Liebreich outside Mr. Dandar's presence? A. Not with respect to the strategies of the case. Q. Let me see if I understand this conversation. The subject is whether to add Mr. Miscavige. You've told us the opinion you expressed and why. You've told us Ms. Brooks was very much pushing this. A. Yes. Q. What was Mr. Minton's position at this meeting? A. He didn't say too much. Q. Did he express in any way to you of yes, no, maybe, on the subject of adding Mr. Miscavige that you can recall? A. Not that I can recall. Q. What did Mr. Dandar say? Did he express any view of yes, no or maybe? A. My recollection is that we debated that issue. I don't recall specifically where he came down at that point in time. Q. But we know at some point in time he decided to file that motion to add Mr. Miscavige, right? 97 A. That's correct. Q. Dr. Garko, from your testimony, I'm getting an -- and please tell me if I am correct or not - that you, indeed, were the closest advisor working basis, hand in glove, to Mr. Kenean Dandar in with the McPherson matters, right? A. I would be one of those people that worked with him on a daily basis, yes. Q. Wait a minute. Not one of these people. I'm asking you if anybody was closer to him by way of an advisor, almost, as you've described, on a daily basis. Were you the number-one advisor to him? A. From a trial and jury consultant's perspective, yes. Q. Okay. Now, after this meeting, did you participate in any discussion with Ms. Liebreich and Mr. Dandar on the subject of filing the motion to add Mr. Miscavige? A. No. Q. Do you have any knowledge on the subject of whether Ms. Liebreich ever approved that motion? A. I don't. Q. Do you have any knowledge of whether Ms. Liebreich even knew that Mr. Dandar filed it? A. No. Repeat your question again. I'm sorry. 98 Q. Do you have any knowledge of whether Ms. Liebreich even knew that Mr. Dandar had filed this motion? A. I didn't have direct knowledge. I presumed it. Q. You presumed it. A. I presumed it. Q. All right. I don't want you to assume. And when I ask you do you have any knowledge, it means did somebody ever say anything to you -- A. No. Q. -- or did you see a letter or something. A. No, I did not. Q. Did Mr. Dandar ever represent to you that he had spoken with Ms. Liebreich and she instructed him to file the motion to amend? MR. DANDAR: Objection, work product, what conversations he had with me alone. MR. ROSEN: I don't believe so. This is crime fraud, if it's anything. MR. DANDAR: I don't understand crime fraud. We're talking about whether Mr. Minton perjured or was asked to perjure himself, not about my conversations with anybody else. THE COURT: I will sustain the objection. BY MR. ROSEN; 99 Q. Now, if I understand correctly, you, in daily contact as Mr. Dandar's advisor, spoke out not only against but rather forcefully against adding Mr. Miscavige, right? A. That's true. Q. And you gave Mr Dandar the three -- I don't want to comment, but it sounds pretty coherent reasons for your position, right? A. I thought it was a good argument. Q. Okay. Now, we know that Mr. Dandar ultimately filed the motion. Did you have any discussion with him as to why he went and did that in the face of your recommendation? MR. DANDAR: Objection, Judge. This occurred after the alleged that brings us to your courtroom. This concerns after October the 8th that he's talking about. And for for him to ask him what Mr. Dandar thought or why he did something is also work product. MR. SCRIVEN: Judge, I would join the work product objection. THE COURT: I will sustain that. BY MR. ROSEN: Q. At the time that Ms. Brooks participated in this conversation, who was Ms.Brooks employed by? LMT? A. I'm not sure, Mr. Rosen. I don't know. 100 Q. Well, who did you understand her to be an agent of, if anyone? Whose interests was she serving? A. I thought she was a consultant for Mr. Dandar at the time. That's my recollection. Q. Did you have an impression that whe was being paid by Mr. Dandar? A. My understanding is that she was not being paid. Q. Now, you have -- you're aware that one of the issues in this case involved two Swiss bank checks? A. Yes. Q. Did Mr. Dandar ever indicate to you in any way, shape or fomr that he had received these checks, either one? A. If these are the two checks for the amounts of $500,000 and the other for $250,000 -­ Q. That’s correct, sir. A. -- no. Q. In fact, sir, did there come a time when Mr. Dandar told you he could not continue your retainer because he didn’t have any money? A. Yes. Q. Can you tell us when that was, sir? A. That was in September of 2002. Q. No. We're in August of 2002 now. A. I beg your pardon. I'm sorry.  101 Q. I'm going to give you a hint. It's not September 2002. A. I beg your pardon. It was in September of 2001. Q. At that time, you were still on the monthly retainer with him, right? A. I was. Q. And Mr. Dandar told you he had to discontinue that monthly retainer because he didn’t have any money? A. That's what he told me, yes. Q. Did he ever resume paying that monthly retainer? A. Never did. Q. Did he ever pay you anything after he cut you off in September of 2001? A. Nope. Q. Now, I want to make sure we understand something. You're aware now that on or about the 7th of March of 2002 Mr. Dandar received a check for $250,000, a Swiss bank check from Mr. Minton. A. I am now aware of that. Q. You weren't aware of it at the time that Mr. Dandar was telling you he didn't have any money to pay you, right? A. That's correct. Q. Are you aware of the amount of money in the aggregate, an estimate -- and I'm not asking for any kind 102 of breakdowns -- the amount of money that you folks spent in costs and expenses, experts, depositions and the like? MR. DANDAR: Objection, privileged. Violates the Second District Court's opinion. MR. ROSEN: It's not privileged and it doesn't violate the opinion. We went through this last time. THE COURT: Why is it relevant? MR. ROSEN: Because we're showing that With respect to this money, Your Honor knows our position is that Mr. Dandar stole it, and he was hiding it from even Dr. Garko and telling him, "I don't have the money to pay you." MR. DANDAR: Judge, it's not relevant because there's no issue of whether or not I stole money. That was my money. This Church of Scientology has no standing to come into this Court to say I stole money that doesn't belong to them, and they had no interest in when I had the money. THE COURT: We're getting far afield here. MR. ROSEN: All right, Your Honor. I will move on. THE COURT: His testimony was, at least from my notes, that Dandar told him he wasn't going to tell him. MR. ROSEN: He wasn't going to tell him what? THE COURT: That Dandar told him he didn't want to tell Garko about the checks. MR. ROSEN: Right. And that goes to the credibility. THE COURT: And Garko said he didn't know about the check, so I don't know why we need to go into how much money was spent. MR. ROSEN: Okay. I will move on. BY MR. ROSEN: Q. In the questioning of you by Mr. Dandar you alluded to some discussion with Mr. Lirot on the day that Mr. Minton had first testified here. A. Yes, I did. Q. And you were in some trial with Mr. Dandar in Tampa? A. That's true. Q. Do you recall that date to be April 9th? A. That's what I recall. Q. Now, Mr. Lirot came up to where you folks were in Tampa and gave you a report of what Mr. Minton had said? A. Yes, he did. 104 Q. And can you tell us what that -- I'm not suggesting you give us chapter and verse, line by line, but could you give us the substance of what Mr. Lirot said? MR. DANDAR: Work product, priveleged That's my attorney talking to me and my trial consultant. MR. ROSEN: Okay. I will lay a foundation. BY MR. ROSEN: Q. You mentioned there was some other person there, an expert witness in the case you were trying? A. I did. Q. That person is not one of Mr. Dandar's many consultants in this case, is he? A. Not to my knowledge. Q. He's not one of Mr. Dandar's supposed consultants in the wrongful death case, is he? A. Not to my knowledge. Q. And he sat there and listened to this conversation? A. That's my recollection. Q. Tell me what Mr. Lirot said. A. He summarized the hearing. He summarized specifically Mr. Minton's testimony, and he said -- and these are the items I remember; they stand out in my 105 mind -- one, that Mr. Minton testified that Mr. Dandar had asked him to lie, that is, to suborn perjury. Two, that Mr. Dandar had concealed from me the monies that Mr. Minton had given to him, one check for $500,000 and one check for $250,000, is my recollection. That he's talked about David Miscavige and the adding of David Miscavige, and he made some points about that. The things that caught my attention were the suborning of perjury and Mr. Lirot talked about misappropriation of funds, I believe. That was the topic. Those two things caught my attention. Q. What, if anything, did Mr. Dandar say? A. He said a number of things. One of the things I remember -- MR. DANDAR: I just want to object and make sure we're restricting it only to this conference room where one of my expert witnesses were present. THE COURT: I don't know-what we're restricting it to. Yeah, this is where this other person was present. THE WITNESS: One thing I do remember him saying -- and it's a quote; it's exactly what he said -- quote, "I wish I would have listened 106 to Michael," end quote. And that was in -­ BY MR. ROSEN: Q. In the context in which you said that, you're Michael. A. I'm Michael. Q. In the context in which that was said, can you please explain what Mr. Dandar said that he should have listened to you? A. That was with respect to the adding of David Miscavige. Not to add David Miscavige was my advice, and he wished he would have listened to that. Q. The advice you already testified to that you gave as to the reasons why he shouldn't be doing it. A. Exactly. Q. And Mr. Dandar said, "I wish I would have listened to Michael in terms of not adding him." A. Correct. Q. Did Mr. Dandar make any statements saying, in words or substance, Minton is a liar, this never happened, the money was mine, anything about any of the content of what Mr. Lirot was relating? A. I don't recall him saying that. Q. Well, did Mr. Lirot relate that Mr. Minton had just come off the witness stand and testified that Mr. Dandar stole the money? 107 A. That's what I -­ MR. DANDAR: Objection. That's a mischaracterization of Mr. Minton's testimony on April 9th. MR. ROSEN: Excuse me. Mr. Minton's testimony. BY MR. ROSEN: Q. Is that the substance of what Mr. Lirot related in that meeting in Tampa as to what Mr. Minton had said? A. That's an inference that I drew from what Mr. Lirot said. Q. And at that moment when first confronted with that acquisition by his counsel, Mr. Lirot, did Mr. Dandar deny it? A. I don't recall him denying it. Q. When Mr. Lirot reported that Mr. Minton's testimony here in court included that the money was supposed to be used for the estate's expenses in wrongful death and not a personal loan to Mr. Dandar, when Mr. Lirot reported that testimony, when first being told about this acquisition, did Mr. Dandar deny it? MR. DANDAR: Same objection, Judge. in the April 9th testimony. THE COURT: Overruled. THE WITNESS: Mr. Dandar listened to 108 BY MR. ROSEN: Q. My question is: Did he say anything -- A. No. Q. Did he say that's not true? A. No, he didn't say that directly. Q. And was part of Mr. Lirot's report on April 9th of Mr. Minton's testimony, did it include the event of Mr. Dandar telling Mr. -- allegedly telling Mr. Minton not to disclose Swiss bank checks because -- in deposition -- because you didn't sign them, they didn't have your name on them, or words to that effect? A. I don't recall that. I don't recall it. Q. Do you recall a discussion that Mr. Lirot reported that Mr. Minton had testified, in words or substance, that Mr. Dandar had told him not to disclose these Swiss bank checks? A. I do recall that. Q. And what -- at the instant that he was first confronted with that accusation, what was Mr. Dandar's statement? Did he deny it? A. No. 109 Q. Okay. Now, this person who was in the room was an expert engaged, I assume, by Mr. Dandar in that other case you were trying in Tampa? A. That's correct. Q. Well, Mr. Dandar knew that person was in the room, He wasn't hiding or anything. A. That's right. Q. Okay. So he knew that that -- I think you said he was a psychologist. A. Yeah, I think he's a psychologist. Q. Mr. Dandar knew that that psychologist in that room was not part of his work -- withdraw that -- had nothing to do with any McPherson case; he knew that, right? MR. DANDAR: Objection as to what counsel knew. BY MR. ROSEN: Q. Did you know it, Dr. Garko? A. I never perceived that particular expert witness to be involved in the wrongful death case. MR. DANDAR: I would object, Judge. I don't know how to do this, because actually that expert witness was involved in the wrongful death case. MR. ROSEN: Well, you're going to have to get on the stand and testify to that, sir. BY MR. ROSEN:  110 Q. Was anybody else present at this meeting, by the way, in Tampa where Mr. Lirot is reporting the events? A. Patricia Greenway, I believe, was there, Ms. Greenway. Q. Ms. Greenway, okay. Is Ms. Greenway another one of Mr. Dandar's supposed consultants? A. Not to my knowledge. I don't know. Q. Do you have any idea how many fact witnesses Mr. Dandar has designated as, quote, consultants who may not be deposed, either in this case or in the wrongful death case? Do you have any idea? MR. DANDAR: Relevance. THE COURT: Sustained. BY MR. ROSEN: Q. Now, you said that you weren't certain -- respecting -- Going back to the meeting in Mr. Dandar's new office -- Minton, Brooks you and Dandar -- you were asked whether Mr. Prince was present, and you said you didn't remember that to be the case. I want to see if I can understand your testimony, Doctor. Are you saying that he wasn't there or are you saying it is possible he was there, but you just don't recall it as you sit here today? A. I don't recall him being there. 111 Q. But you wouldn't say under oath that he was not there; is that right? Or if you would, then say it. A. I just -- I don't recall him being there because he was present at other times, and one interaction starts to blur into another, and I just don't have a clear recollection of him being there. Q. Okay, if that's your best recollection. Now, Mr. Dandar also asked you about a gentleman named Haney. A. Yes. Q. Do you have a -- can you tell us yes or no whether Mr. Haney was present at this meeting? A. He was not present at that meeting. Q. That one, you're sure of. A. I'm positive on that. Q. Okay. This conversation, did it take place in a conference room? A. It did. Q It did? A. It did. Q. And so all participants were there in that conference room together? A. Yes. Q. Was there a telephone in that conference room? A. There was. 112 Q. Does that telephone have a speaker component? A. It does. Q. Did anybody, including Mr. Dandar, let's get Dell on the phone to discuss this? A. Not to my recollection. Q. Now, you s aid in response to a question by Mr. Dandar that Ms. Liebreich, the client, controlled the case, and I want to go back and just ask you about this. Do you have any firsthand knowledge of Ms. Liebreich ever approving any of the multiple complaints in the wrongful death case? DANDAR: Objection, work product. ROSEN: He waived it. He asked the question. Ms. Liebreich was in charge; she was calling the shots. DANDAR: Now he's asking for specific details of my client’s communication with me, and that’s work product. THE COURT: How can he test the general questions that you asked if not by specific questions? MR. DANDAR: Because I didn't ask for content. It's like asking a yes or no question. THE COURT: Overruled. Go ahead. 113 THE WITNESS: Would you please repeat your question? MR. ROSEN: May I ask the reporter to read back? THE COURT: Question, "Do you have any firsthand knowledge of Ms. Liebreich ever approving any of the multiple Complaints in the wrongful death case?" THE WITNESS: I do not have first-hand knowledge. BY MR. ROSEN: Q. With respect to any decision -- withdraw that. Is the basis of your knowledge on that subject statements that Kennan Dandar made to you? A. Yes. Q. Okay. Did you ever see any correspondence which would reflect Ms. Liebreich being consulted by Mr. Dandar on any strategic decision, amend a Complaint, take a deposition of so and so, serve interrogatories? Any of those strategic decisions that lawyers make, did you ever see even a single piece of paper -- letter, e-mail, fax -- from Mr. Dandar to his client soliciting her opinion as to whether to do something? MR. DANDAR: Outside direct. THE COURT: Overruled. THE WITNESS: Three years, it's a long time, a lot of paper. I don't recall. I don't recall. BY MR. ROSEN: Q. Not a single one? A. I have no recollection of reading a correspondence outlining what Q. Okay. In the three years that you were Mr. Dandar's - if I may say -- right-hand man in this litigation adventure, was there ever a time in a discussion, whether it be personal or telephone, with Mr. Dandar and the client, Ms. Liebreich, in which decisions on strategy were discussed or made? A. No. Q. Never? A. Not to my recollection. Q.Well, I would like, Dr. Garko, if you could help us on this point to enlighten us. You know that there were -- I don’t know -- nine or ten different versions of the Complaint filed at various times in the wrongful death case? A. I know the Fifth Amended Complaint. That's as far as I've gotten. Q. Okay. Fifth Amended Complaint. 115 And you know there were obviously many depositions taken in that case. A. Scores. Q. And scores of document requests and interrogatories? A. Yes. Q. Yes. And in all of that strategic work that lawyers do, are you telling me that you cannot remember a single decision ever made in which you were present and Ms. Liebreich was present and Mr. Dandar was present to discuss it and agree on it; is that your testimony? A. That's my recollection. MR. ROSEN: No further questions, Your Honor. REDIRECT EXAMINATION BY MR. DANDAR: Q. Dr. Garko, did you ever read my mail to Dell Liebreich? A. Read your mail to her? Q. To her. A. I don't have a specific recollection of doing that. I'm not saying I didn't. I just don't remember doing it. Q. It wasn't part of your job duties to read my mail to Dell Liebreich or to any other client; was it? A. No, no. And was it part of your job duties to sit on the -- or get on the telephone when I'm talking to Dell Liebreich? A. No. Q. So when you say, "I didn't see a letter and I didn't hear him talk to Dell Liebreich," that doesn't mean it never happened, though? A. No, that doesn't mean that. I'm sorry. Repeat that -again. Q. When Mr. Rosen said did you ever see a letter going to Dell Liebreich strategizing about the case, that doesn't mean a letter to Dell Liebreich strategizing about the case never happened. A. No, it doesn't. Q. And when you don't recollect me talking to Dell Liebreich on the telephone about the case, that doesn't mean I don't talk to Dell Liebreich on the telephone about the case; does it? A. No, it doesn't mean that. Q. Now, did I tell you about the check that Mr. Minton gave me in 2001? A. Which check? Q. Any check. A. In 2001? Q. Yeah, last year? A. You may have. Q. You don't remember? A. I don't remember. Q. Did I tell you about the checks before Mr. Minton's -- before May of 2000, did I tell you about the checks that Mr. Minton gave me in the year 2000? A. I believe so. Q. How many? A. I don't recall that, exactly how many. I mean, I don't recall how many. Q. What about in 1999? A. I don't recall having a recollection of knowing about checks received by you from him in 1999. Q. What about 1998? A. No. Q. Now, this one drop-in of Mr. Minton and Ms. Brooks that you can recollect where you voiced your opinion about adding David Miscavige -- A. Yes. Q. -- Ms. Brooks said to you, did she not, "Ken, why did you do it?" A. She said something to the effect, "Why did you add him, Ken?" Q. So that's past tense; isn't it? A. That's my recollection of what she said. 118 Q. One last question: And this one drop-in that you recollect when Ms. Brooks said, "Why did you add him, Ken," there wasn't a decision made at that drop-in/get-together; was there? A. I don't have a recollection of some decision being made, no. Q. Without going into content, was I gung ho about adding on David Miscavige? A. When? Q. At any time. At any time. Gung ho? A. I wouldn't characterize it as gung ho. Q. Did I make a quick decision to add on David Miscavige? MR. ROSEN: Objection. This witness is not a mindreader. THE COURT: Sustained. BY MR. DANDAR: Q. Did it take a period of time for me to come to a decision? ROSEN: Same objection, Your Honor. BY MR. DANDAR: Q. Was there any time involved in the final decision to go forward and add on David Miscavige? MR. ROSEN: Same objection, Your Honor. 119 THE COURT: You've got to lay a predicate. I don't have any idea how long, you know, what the process was or -- MR. DANDAR: See, I don't want to violate work product. THE COURT: Well, you can't have it both ways; can you? MR. DANDAR: Well, I'm trying. THE COURT: I know. MR. DANDAR: I'm trying to give you a picture, is what I'm trying to do. THE COURT: Right. MR. DANDAR: That's all I have. MR. ROSEN: Your Honor, is your intention to take a lunch break at this point? THE COURT: My intention was to take a lunch break at noon, you know. MR. ROSEN: I know you had to accommodate my kidney, as well as the witness. THE COURT: We will take a break until 1:30. MR. ROSEN: Your Honor, can we ask, so we can use the lunchtime productively, who Mr. Dandar's next witness is? THE COURT: Who are you going to call 120 next? MR. DANDAR: Mr. Rosen. THE COURT: Use it productively. MR. ROSEN: Your Honor, has the motion - THE COURT: And we'll deal with it when I come back. Is this witness excused? MR. DANDAR: Yes. MR. ROSEN: Yes. (Thereupon, the lunch recess was held.) THE COURT: Okay. Be seated. Let's continue. MR. POPE: Your Honor, I had filed a motion to have Mr. Hill admitted pro hac. May I bring an order? I have given the other side copies. And the other thing is, Your Honor, since it appears that Mr. Dandar is going to be allowed to call Mr. Rosen as a witness, we would request that the Court ask of Mr. Dandar to make a good-faith proffer as to what he hopes to elicit from this witness. MR. DANDAR: Judge, I'm going to elicit from Mr. Rosen his discussions with Mr. Minton in the New York meeting of March 28th and 29th in Mr. Rosen's office. 121 THE COURT: this the meeting that was testified to in front of Judge Schaeffer where Mr. Minton testified to and other people that were there testified? MR. DANDAR: Yes, that's the first two of the many meetings that Mr. Minton had with representatives of the church. THE COURT: So those have been testified to, so you know what those witnesses said took place, correct? MR. DANDAR: I know what those witnesses had to say. I don't know what Mr. Rosen has to say. I have Mr. Rosen's notes that were produced, but I didn't have Mr. Rosen's testimony. I have Ms. Yingling’s, which is another attorney for the church. THE COURT: Do you have some good-faith basis to believe that Mr. Rosen's account of that meeting is going to be any different than what you’ve already heard? MR. DANDAR: Yes, because Ms. Yingling's notes, which are really good notes - she has even corrected those notes - so Mr. Rosen may have a recollection that is totally different from the notes of Ms. Yingling and her 122 testimony. And Mr. Minton and Ms. Brooks already contradicted the testimony of Ms. Yingling as to what transpired at that meeting, so Mr. Rosen is another participant. I don't know what he's going to say. THE COURT: And the relevance of whatever this testimony is? MR. DANDAR: The relevance of the testimony is that that meeting two days in Mr. Rosen's office in New York City, Mr. Minton had as his attorney from Boston; Mr. Jonas was present. When Mr. Minton comes down here, all of the sudden he doesn't have an attorney present at any of the 15, 20 meetings he has with Mr. Shaw and Ms. Yingling, and there are no notes for those meetings. So the relevance of the meeting in New York starts the process, which I believe is the extortion process, to get Mr. Minton to lie under oath to do whatever he has to do to get the wrongful death case dismissed. THE COURT: And in any of the notes and 123 any of the testimony up to this point, has anyone testified that that occurred? MR. DANDAR: Well, Mr. Minton -- no. Mr. Minton and Ms. Brooks and Ms. Yingling deny that he was coerced or told what to do. THE COURT: Do you have any good faith to believe Mr. Rosen is going to testify any different than that? MR. DANDAR: I do, because I have no idea -- THE COURT: It's not a matter of what you have any idea of. It's not that you don't know anything. It's that you do know something, because he's the attorney in this case; he's Counsel. And before you can call him, you need to have a good-faith basis to call him that has some relevance or some significance to what's going on here and not just harassment. MR. DANDAR: It's not harassment. I’m going to have a good-faith basis to call him -- THE COURT: What is the good-faith basis you have to believe that his testimony is going to be in any way different than the testimony that you've already heard about that meeting? 124 That's what I need to know. MR. DANDAR: I have no notes from Mr. Rosen. THE COURT: You're not answering my question. MR. DANDAR: I'm trying to. I have no notes from Mr. Rosen except a list of cases that he was adding up the attorney fees that they spent to present to Mr. Minton in New York saying, "This is how much we're going to sue you for under RICO." I have just those notes. I have Ms. Yingling's notes, which are much more detailed. She ascribes Mr. Rosen as saying certain things at the meeting. She abbreviates them. And my good-faith belief is that Mr. Rosen will come into court, and he will testify to the full extent to supplement what's missing in her notes. This goes to the motivation for all of this to happen in this court and Judge Schaeffer's court, and we have case law that the motive for a witness to lie under oath is indeed relevant. 125 This agreement that they had with Mr. Minton which Mr. Rosen and Ms. Yingling started in New York City is part of the Mary Carter agreement, which is illegal, unethical, a charade on the court. They didn't tell you about this agreement until I came forward and started to present evidence and cross-examined on this agreement. Then it all came out. But in this courtroom back on the 19th and 30th of April, they attempted to preclude this Court from knowing aboui it. They raised confidentiality. Mr. Minton's lawyer objected. Mr. Rosen said, "Go ahead and talk about if he made Rosen said, "Go ahead and talk about if he made any promises to you." What they didn't tell you about was this secret agreement that he had with Mr. Minton. THE COURT: All right. Here’s the deal. I will let you call him. And at the end of his testimony or at the end of this proceeding, if I find from testimony or evidence that's presented that Mr. Rosen has nothing more to add about this of significance than what you have already heard 126 from the three other participants that you've already heard, then there will be some sanctions involved. This is just very extraordinary, and, you know, I think that if there were some real significant, important information that you honestly and in good faith believed he has that is any different from anything that you've heard from the other participants in that meeting, that would be one thing. I just don't think it's there. MR. DANDAR: Well, Judge, now that you've said that, I'm sure Mr. Rosen will testify -- THE COURT: Well, did you think he was going to testify any differently regardless? MR. DANDAR: Well, I have the notes of Ms. Yingling, which are the only notes I have of any substance. She attributes a little phrase to him. I want him to explain to the Court what is meant by that. That, I don't know. THE COURT: Well, if that's going to be the be all and end all of this case, let's have it done. Okay? MR. DANDAR: All right. 127 THE COURT: Swear to tell the truth? MR. ROSEN: I do. MR. DANDAR: Before today, the last hearing before you on April 30th, Mr. Rosen got up and said they rested. Today, this morning, that he doesn't want to rest; he wants to bring in more evidence. I would ask the Court that if you're going to allow him to reopen his case and bring in more evidence that we have Mr. Rosen step down and have them finish their case before I continue with the presentation in my case. THE COURT: Why would I do that? MR. DANDAR: It's proper procedure. They need to rest. THE COURT: You have already put your first witness on. What difference does it make if he finishes his case, you know five minutes from now or an hour from now? I don’t understand what the purpose of that is. DANDAR: It's just proper. RT: You've got him up here, you’ve called him. Apparently you want to ask him about some comments that he made in this 128 meeting. Let's do that. Okay? SAMUEL DAVID ROSEN, ESQUIRE, called as a witness, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. DANDAR: Q. Mr. Rosen, when is the first time that you became that Mr. Minton had made an overture to attempt to settle Flag's claim against him in this case with Judge Baird? A. Early February of this year. Q. And how did you come to realize that? A. I learned that from Mr. Pope relating a conversation to me of a telephone call he had had from Mr. Howie. Q. And what did Mr. Howie say -- what is your understanding of what he said to Mr. Pope in reference-to an overture to settle? Q. I can only tell you what Mr. Pope told me. Q. All right. A. Mr. Pope previously told me that Mr. Howie was appearing for Mr. Minton, and Mr. Pope made some laudatory remarks about Mr. Howie's integrity. And then shortly after that, Mr. Pope called me and said he got a call from Mr. Howie and Mr. Howie would 129 like to discuss settlement of the claims against Mr. Minton in this breach case. Q.Did you have a conversation with Mr. Howie or Mr. Minton after that? A. Subsequent to that, after getting authorization from the client, there was a three-way telephone conversation between myself, Mr. Howie and Mr. Pope. Q. And what is the name of the person for your client that you got authorization from to commence discussions? A. I think it was Mr. Shaw. Q. Okay. And did you have discussions of settlement with Mr. Howie or did you have it with Mr. Minton? A. I never had any discussions of settlement with Mr. Minton other than the meetings in my office. Q. Okay. Did you relate to Mr. Howie that your client was not interested in settling with him in this case with Judge Baird, that global settlement? A. Absolutely not. Q. Okay. How many conversations did you have with Mr. Howie before your meeting in your office with Mr. Minton and Mr. Jonas? A. I would think, including the conversation I had m in Judge Baird's anteroom when we appeared in somewhere around mid March, I would think there were 130 three or four. Q. During any of those conversations, did you tell Mr. Howie that your client was only interested in a global settlement, rather than just settling with Mr. Minton in this case? A. Absolutely not. Q. Whose idea was it to meet in your office on March 28th? A. It was my suggestion that the intended venue be changed from Miami to New York, because it was going to be Mr. Jonas from Boston who was representing Mr. Minton and Ms. Brooks in the meeting, rather than Mr. Howie, and I suggested to Mr. Jonas that rather than everybody hauling down to Florida -- his client was in New Hampshire, he was in Boston, I was in New York -- that I would bring my people up, and New York seemed like a convenient place, so I offered my office as a venue. Q. Okay. During that meeting -- before you started that meeting, had you seen the UBS check of May 2000 written to me? A. Not only did I not see it, I didn't know it existed until long after that meeting. Q. During the meeting of March 28th with Mr. Minton in your office -- with Mr. Jonas and Mr. Minton - First of all, who were you representing on March 28th? A. I was engaged to represent four separate church entities separately incorporated on the basis that there was -- both sides had expressed a desire to at least explore the possibility of a global settlement of all disputes between Mr. Minton and any church entity. In order to do that, there were four different church entities that had varying ongoing disputes with Mr. Minton; they were the Church of Scientology of California, the Church of Scientology International, Flag and Religious Technology Center. And I was engaged in this effort to represent all four to achieve, if it were possible, a global settlement; if not, to negotiate individual items of settlement that may involve one of them but less than all of them. Q. When did you first learn or come to an understanding that the meeting on March the 28th was going to discuss the global settlement concerning several to discuss the global settlement concerning several different and separate Scientology corporations? A. In a telephone discussion I had with Steve Jonas sometime between the 15th of March and the date that the meeting occurred. It was soon after I was told by Mr. Howie that it was going to be Mr. Jonas and not Mr. Howie who would be 132 representing Mr. In these discussions. Q. And Monique Yingling, a Washington D.C. attorney, also appeared in your office on March 28th, correct? A. Yes, she was in the meetings;that's correct. Q. She’s a tax specialist attorney? A. I don't have any knowledge of that. Q. You have no knowledge of her expertise? A. I have dealt with Ms. Yingling on several matters as co-counsel, but never on a tax matter. I have dealt with human rights matters with her, alleged violations by foreign nations of the U.N. Declaration of Human Rights, and I’ve dealt with her on some commercial disputes, but I have never dealt with her on any tax matter, if that’s your question. Q. Are you aware that she was formerly with the Justice Department in their tax division? A. No. Q. Who was she representing at the meeting? A. She was assisting in the sense of a second person, and I presume that she was - I never discussed it with her directly, but I presumed she was engaged the same way I was, by four different separate church corporations, to represent them in this effort to explore whether or not a global settlement was possible. Q. And Michael Rinder was also there. Who did he 133 represent? A. He was a representative of CSI, Church of Scientology International. Q. Did the Church of Scientology International have any claims concerning Mr. Minton? A. They were in litigation with Mr. Minton. Q. What case? A. If you give me my notes -- I'm trying to remember. Q. Let me hand you what we'll have marked by the Court as Defendant's Exhibit 5, which is also Exhibit 185 of the defendant in the wrongful death case. Can you identify Exhibit 5, please. A. Excuse me, Your Honor. I'm sorry. I forgot. Thank you. MR. POPE: The man's got to see. THE WITNESS: Exhibit 5 are the notes that I made on the day before the meeting, the 27th of March, on a going-forward basis in terms of these were the things that I was going to present to Mr. Jonas and Mr. Minton and Ms. Brooks, so they're notes of what I intended to say, if that will help you. BY MR. DANDAR: Q. All right. So there are 13 different items listed; is that right? 134 A. Yes, sir. Q. No, your question was CSI. CSI was involved in Roman Numeral 2 which is known as the Wollersheim case in California. That’s my shorthand. I wrote a note to myself, "Wolly." I refer to Wollersheim in my own notes. And CSI was, I believe, also involved in case Number Roman 8 that's discussed there, and that is Lopez, a case that had been settled just before that. Item Number 10 is not a case; it's IRS harassment. And I don’t know if CSI was involved in that being a target of Mr. -- a target of the IRS by virtue of Mr. Minton’s statements to them. This pertains to church people being - church entities who were - Mr. Minton had made allegedly improper statements about to the IRS in an attempt to get the IRS to revoke their tax-exemption status. So CSI may have been involved in that one as well. I don’t know whether CSI was involved in Number 6, what's called the European cases. There were several litigations between Mr. Minton and church entities in France and Germany, maybe someplace else in Europe too. I wasn't involved in any of those, but I don't know if CSI was a party to any of these. BY MR. DANDAR: 135 1 Q. Did you bring these notes with you to the meeting 2 with Mr. Minton on March 28th? 3 A. Yes, I did. 4 Q. And what was the reason why you had the dollar 5 figures next to each item listed, the 13 items? 6 A. The purpose of this presentation was to give both 7 Mr. Minton and his counsel an idea of how much money 8 Mr. Minton had cost the church -- churches, each different 9 one -- in litigation expenses by virtue of his conduct in 10 controlling litigation, funding litigation, providing 11 witnesses to provide affidavits, et cetera. 12 And the purpose here was just to give 13 Mr. Minton something he did not know in terms of how much 14 the church has spent, for example, in the wrongful death 15 case, and also to give Mr. Jonas, who was not involved in 16 any of these cases, more of a picture of what -- how much 17 damage, financial damage, Mr. Minton had done and would 18 continue to do in these cases. 19 Q. And were these figures given to him as a measure 20 of damages for a future RICO suit to be filed against 21 Mr. Minton? 22 A. There was no future RICO suit to be filed against 23 Mr. Minton. 24 Q. Did you tell Mr. Minton at that meeting that you 25 were preparing a RICO suit to file against him as soon as 136 1 the church won the wrongful death case in Lisa McPherson? 2 A. No. I will tell you what I said to him. If you 3 look at the litigation matters, when we get down to the 4 third page, Roman 12, my handwriting, if you can't read it, 5 is, "Our planned RICO case." 6 And I said to Mr. Minton -- I was really 7 talking to Mr. Jonas, my counterpart across the table -- I 8 said, "In the interest of full disclosure -- we're trying 9 to get a global settlement -- I want to put our cards on 10 the table. You know, you know the cases that Mr. Minton is 11 either involved in or is about to be involved in; for 12 example, in the case before Judge Schaeffer. But I want 13 you to understand that we're acting in good faith here, and 14 I'm going to lay out for you not only what you know about, 15 but what you don't know about." 16 And I said to him that several of the churches 17 had looked at -- had paid counsel -- and that's what the 18 words are, "we've spent," to research, legal research, on 19, the question of whether a federal RICO claim lied -- civil 20 RICO claim lied against Mr. Minton. 21 The research had never been completed. The 22 clients, including Flag, were planning on proceeding with 23 that if the attorneys said okay, because the practice we 24 follow is we research a case before we bring it, and we're 25 basically researching our opposition to a motion to 137 1 dismiss. 2 And I told them that the research had been 3 stopped in the middle because the determination had been 4 made that any RICO case -- and they were certainly hoping 5 to file one -- would not be filed until after the wrongful 6 death case had been completed. 7 And that is the reason why you will notice 8 that, with respect to all of the pending litigation, there 9 are two lines on my notes: "We've paid," and, "We will 10 pay." 11 If you go up to the very top, Page 1, wrongful 12 death case, "We've paid," and, "To be paid." 13 And I gave the figures both for any pending 14 case as to how much the particular church clients had paid 15 and how much they had budgeted or estimated that they would 16 have to pay. 17 When it came to the RICO one, as you can see, 18 sir, on the third page, the only entry is, "We've spent," 19 and that's the $40,000. 20 And the reason for that was the decision of 21 whether to bring that case -- the client wanted to bring it 22 for sure -- but the decision whether to bring it was 23 postponed so far into the future that it was not even a 24 discussion of or an estimate of, if we would bring it, how 25 much it would cost. 1 Q. Do you recall holding up, in the presence of 2 Ms. Brooks and Mr. Minton, what you termed or stated was a 3 draft of a RICO suit? 4 MR. HILL: Objection as to time, Your Honor. 5 Are we still talking about the March 28th and 29th 6 meetings? 7 MR. DANDAR: Yes. 8 MR. HILL: Which one, the 28th or 29th? 9 BY MR. DANDAR: 10 Q. 28th. 11 A. I recall that it never happened and it was not 12 possible, because no draft complaint, RICO complaint, was 13 ever prepared. 14 The research was stopped in the middle when the 15 client made a decision that they do not want to consider 16 bringing that case until after the wrongful death case had 17 been tried. 18 And I can tell you, not one word, not even a 19 caption, had been drawn, so there was no draft for me to 20 show Mr. Minton about it. 21 Q. My question is: Did you show a piece of paper to 22 Mr. Minton and Ms. Brooks that you purported and you 23 represented to be a draft of a RICO suit? 24 A. Of course not. 25 Q. Did you present to them a copy of the Armstrong 139 1 case where the church is suing Mr. Jerry Armstrong and now 2 Mr. Minton in excess of a hundred million dollars? 3 A. If you will refer to Item Number 3 on the first 4 page, one of the litigations I spoke about is Armstrong. 5 And you will see, "We've paid," and, "We will have to pay." 6 Again, when we came to the Armstrong matter, I 7 said, "In the interest of full disclosure -- I don't want 8 you thinking that I'm going to sandbag you -- you don't 9 know this yet, Mr. Jonas, but we have a case against 10 Mr. Armstrong in Wren County, California, and we are 11 amending or adding Mr. Minton as a defendant. 12 That motion or that pleading to add Mr. Minton 13 as a defendant was well under way, and I think it was close 14 to final, because I know I served it on him on April 5. 15 So if you're asking me whether or not I 16 referred to that in the meeting, I certainly made a 17 disclosure of what they did not know, and that was, 18 "Mr. Minton, you're about to be sued by one of the church 19 entities in California in the Armstrong case." 20 He didn't know that. And, in fact, they were 21 very thankful that I was candid enough to put the cards on 22 the table and tell him what was coming. 23 BY MR. DANDAR: 24 Q. Did you make any notes of the meetings on March 25 28th or 29th? 140 1 A. No. 2 Q. Now, isn't it true, sir, that Mr. Rinder told 3 Mr. Minton at that meeting on March 28th that before the 4 church would enter into any discussions with him on 5 disengagement, that Mr. Minton first had to make the Lisa 6 McPherson wrongful death case and the Larry Wollersheim 7 case in California go away? 8 A. Absolutely not. Never said that. 9 Mr. Rinder expressed a strong preference for a 10 global settlement and expressed in the strongest possible 11 terms his preference that all of the litigation go away. 12 Mr. Jonas, I believe, asked if we were willing 13 to let Mr. Minton out of the breach case and out of the 14 wrongful death case. 15 And Mr. Rinder's response was, "Your client's 16 not getting out of any case until the case is over. We're 17 not letting you out and then continuing to litigate with 18 the others. 19 "So if what you want is to get out of the 20 wrongful death case where you're about to, be added as a 21 defendant, then we're telling you, you're not getting out 22 until the case is over," and that's what Mr. Rinder said. 23 Q. Isn't it true, sir, that Mr. Rinder told 24 Mr. Minton that the declarations and affidavits of Jesse 25 Prince, Stacy Brooks and Vaughn Young would have to be 141withdrawn in the McPherson case and the Wollersheim case before the Church of Scientology would consider disengagement from Mr. Minton? A. Absolutely not. Q. Isn't it true, sir, that Mr. Rinder told Mr. Minton that the Lisa McPherson Trust web site and any domain names that has her name on it, Lisa McPherson, would have to be taken off of the internet before the Church of Scientology would consider disengagement from Mr. Minton? A. To the contrary. If you look at my notes, you will see, on page -- let me see where it is -- top of Page 3, Roman 11. Let me translate, because my handwriting is not that good, "Internet and trademark disputes." That had nothing to do with Lisa McPherson web sites. That had to do with Mr. Minton had registered as domain names the words Orthodox Scientology, Reformed Scientology and some other name that included the registered trademark Scientology, and we presented that we had already paid $32,000, we were expecting to pay $150,000, we were going to sue or go through ICANN, which is the dispute-resolution group for the internet, to have those registrations cancelled. There was no demand that Mr. Minton not have a Lisa McPherson web site or anything like that, certainly 142 1 not by us. 2 Q. Have you read the testimony of Monique Yingling in 3 the case before Judge Schaeffer? 4 A. I have not, sir. 5 Q. Have you looked at her typed notes that she 6 produced? 7 A. I have not, sir. 8 Q. Did you also tell Mr. Minton in this meeting on 9 March 28th that he was going to be added onto the Texas 10 breach case? 11 A. No. I told him -- and when we came -- as we came 12 to each one of these items, I gave a little bit of 13 background, because some of them Mr. Minton was unfamiliar 14 with. All of them Mr. Jonas was unfamiliar with. So I was 15 really talking in the sense more for Mr. Jonas's 16 edification. 17 If you go down to Item Number 9, RTC/Liebreich, 18 that's the Texas case you're referring to. 19 When I came to that, I told Mr. Minton that 20 Ms. Liebreich had testified in that case in deposition that 21 she expected Mr. Minton to pay any judgment that was 22 entered against her or against the estate and that she 23 expected Mr. Minton to pay the expenses -- costs, if you 24 will -- that were awarded or would be awarded against her 25 in the favor of RTC. 143 1 That was the context in which it came about. 2 It wasn't that we were suing Mr. Minton. 3 And, Mr. Dandar, of course, you know that we 4 didn't do that, because you tried the case, and it was 5 tried two months before this meeting. We tried that case 6 to a jury in January of 2002. So Mr. Minton wasn't a 7 party. 8 Q. Mr. Rosen, isn't it true during this March 28th 9 meeting you told Mr. Minton that if he could get the 10 affidavits supplied by the, quote, Minton camp, closed 11 quote, removed from the Wollersheim case in California, the 12 motion to dismiss by the Church of Scientology would be 13 granted and the Wollersheim case would go away? 14 A. No, sir. That was not what was said on that 15 subject. 16 Q. Isn't it true, sir, that Michael Rinder told 17 Mr. Minton in your presence on March 28th that before there 18 would ever be disengagement between him and the Church of 19 Scientology, Mr. Minton had to get the Lisa McPherson 20 wrongful death case dismissed? 21 A. Absolutely false. And the events of March 29th 22 proved it to be false. 23 Q. Didn't you tell Mr. Minton on March 28th that he 24 caused it, and therefore he can make it go away? 25 A. No. That comment was made by Mr. Rinder in the  144 1 following context: 2 There was a discussion about Mr. Minton 3 bringing about a resolution, a settlement of the wrongful 4 death case. 5 Mr. Jonas asked, "Well, I don't know anything 6 about this case. What's involved? You know, what are the 7 numbers? What's the Plaintiff's demand? What's the 8 offer?" 9 And Mr. Rinder said, "I can't tell you that. 10 It's confidential. It was a mediation." 11 And Mr. Jonas said, "Well, is the question here 12 that you want Mr. Minton to make Ms. Liebreich withdraw the 13 case or do you want this case settled?" 14 And Mr. Rinder said, "I want this case 15 settled." 16 And Mr. Jonas said, "Well, okay, tell me 17 confidentially, how much are you willing to pay to settle 18 the case?" 19 Mr. Rinder said, "Nothing." 20 Mr. Jonas said, "Well, why not?" 21 And Mr. Rinder said, "Look, this is Minton's 22 case, he's funding it, all of the people who are the 23 witnesses are his people, he pays them to testify." 24 And most importantly, Ms. Liebreich is only a 25 nominal Plaintiff, because there is an agreement that we 1451 were told and aware of that the substantial portion of any 2 proceeds of that case would be, given by the estate to some 3 anti-cult, for lack of a better term, or anti-Scientology 4 organization that Mr. Minton would choose. 5, So, in reality, we were looking at Mr. Minton 6 being the real party in interest in the case, Ms. Liebreich 7 being a nominal party. 8 And the statement made to Mr. Jonas was, "If 9 Liebreich needs some money to go away to resolve this, you 10 pay her; you're the one who owns this case. You pay her." 11 Q. Isn't it true, sir, that Mr. Minton was told by 12 either you or Mr. Rinder that he had to stop funding the 13 wrongful death case of Lisa McPherson before Scientology 14 would consider disengagement of him? 15 A. No, sir, at least not when I was in the room. 16 Q. Were you in the room at all times? 17 A. I was in the room throughout the entire sessions 18 of March 28th except for two periods that I was not at the 19 meeting. 20 Q. And who was left in the meeting? 21 A. The other five people. 22 Q. So Ms. Yingling engaged in conversation with 23 Mr. Minton and Mr. Jonas while you were not there? 24 MR. HILL: Objection. Calls for speculation. 25 THE WITNESS: Well, sir, obviously the 1461 answer to your question is: How would I know 2 if I wasn't there? I don't mean to be 3 sarcastic, Mr. Dandar, but... 4 BY MR. DANDAR: 5 Q. All right. In your presence -­ 6 A. No. 7 Q. -- there was never a demand made to Mr. Minton on 8 behalf of the Church of Scientology that before there would 9 be disengagement, he had to stop funding the wrongful death 10 case? 11 A. To the contrary. It was -- we were told that 12 Mr. Minton had already stopped funding the wrongful death 13 case, and he announced in August or September of 2001 that 14 he was no longer going to provide any funds for the 15 wrongful death case. 16 I was also told -- I didn't know it firsthand 17 at the time, because I'm not involved in the wrongful death 18 case, that at that time you posted a plea on the internet 19 for money saying, "Mr. Minton is no longer funding; I need 20 money," that Ms. Liebreich posted a plea for money needed 21 to cover the case. 22 So there was no demand that he stop it because 23 our understanding was exactly the contrary, he had already 24 stopped seven months earlier, and he publicly announced it. 25 Q. Isn't it true, sir, that you or Mr. Rinder made a 147demand of Mr. Minton on March 28th that the Jesse Prince and Stacy Brooks affidavits in the Lisa McPherson case would have to be withdrawn and they would not testify in the Lisa McPherson case before the church would consider disengagement? A. Mr. Dandar, I think you asked me that before, but let me say it as clearly as I can. The answer is no, number one. The answer is, number two, as you know, I am not involved in the wrongful death case. I did not attend a single minute of the hearings you recently had before Judge Schaeffer. I represent nobody. I would not even know what affidavits you were referring to when you said something about withdrawing your Jesse Prince affidavit. I would have no idea what it is. Q. Did you hear Mr. Rinder say that? A. No, sir. Q. Do you remember telling Mr. Minton and Mr. Jonas about trying to exert influence over Dandar and Liebreich to get rid of the Lisa McPherson case? A. No, that's exactly what they said. Mr. Minton said -- I'm not sure he used the word, "exert influence," but Mr. Minton said, in words or substance, that he would talk with you and with Dell, and he was not without influence with you in terms of bringing about -- not a 148 withdrawal of the case -- a resolution, a settlement. As I said earlier, the contemplation was that she was a nominal Plaintiff so she needs some money to resolve the case, and our demand was, "Mr. Minton, you pay her; we're not." Q. Do you remember Mr. Jonas telling you that Mr. Minton cannot commit to making the Lisa McPherson wrongful death case go away? A. Yes. Q. What did you say back to Mr. Jonas when he said that? A. Nothing. He said, "I can't give you a guarantee that we can bring about a resolution of the case." Fine. You know, I probably just nodded and said, "I hear you." Q. Isn't it true, sir, that in response to Mr. Jonas saying he can't commit to making the case go away, you said, "I hope this is not a harbinger of things to come because I would be extremely disappointed."? A. No, sir. First of all, the word is harbinger, not I harbinger. (Pronunciation.) Q. Thank you. It's not a word that I use. A. Okay. What I said was, in the context of that we were getting bogged down on this issue and their position was 1491 that we would have to pay; and it was in that context, the 2 demand that we have to pay to settle the case that I said, 3 "Gee, I hope this is not a harbinger of things to come 4 because we've got x-number of other disputes to talk about; 5 and if we're going to bog down on that kind of a demand, 6 we're not going to get anywhere." 7 Q. Now,do you recall giving a list of demands to 8 Mr. Jonas and Mr. Minton on March 28th? 9 A. I'm sorry. I didn't hear the question. 10 Q. In addition to Exhibit 5 of the 13 items that you 11 listed with the monetary figures next to each one of 12 those -­ 13 A. That's background information. 14 Q. -- did you make a further demand on other things 15 that Mr. Minton had to do before there would be 16 disengagement? 17 A. No, sir. 18 Q. Isn't it true the word disengagement is a word 19 Mr. Rinder used? 20 A. Several times. 21 Q. What does that mean? 22 A. It means total disengagement. In fact, if I 23 remember correctly, that word was in Mr. Rinder's statement 24 within the first five minutes of when the meeting started 25 on the 28th,and it was in the context of, "What we would 1501 prefer, if we can get it, is a global settlement, total 2 disengagement. 3 "We understand, Bob, you want the same thing. 4 If we can't do it, maybe we can talk about resolutions of 5 individual matters, but we would prefer a total 6 disengagement of all areas and matters in which we are 7 adversary to each other, either directly or through your 8 funding or whatever." 9 And I remember Mr. Minton nodded his agreement, 10 and somebody on their side of the table -- it might have 11 been Mr. Jonas -- said, "You mean we can't even send you 12 Christmas cards?" 13 And Mr. Rinder said, "That's right. We reach 14 total disengagement. I don't want to get any Christmas 15 cards from you." 16 Q. Do you remember Mr. Rinder adding onto that 17 definition of disengagement to include investigations of 18 Mr. Minton and his wife and his two daughters? 19 A. That was a demand that was made by Mr. Jonas. 20 That was his agenda as to what he wanted, his set of 21 demands on behalf of Mr. Minton for what would constitute a 22 disengagement. That's correct. Mr. Jonas said that much 23 later in the meeting. 24 Q. Did Mr. Rinder also say that he believed 25 Mr. Minton didn't want any further hassles in his life from 1511 the Church of Scientology? 2 A. Yes. He said, "I believe you want the same thing 3 we do, total disengagement, complete global peace." 4 Q. Now, the next day on March the 29th, the meeting 5 continued, correct? 6 A. Yes. 7 Q. The meeting on the 28th lasted about all day? 8 A. Well, on and off. We met for a while, then there 9 was a caucus and we met again, and then we took a long 10 lunch. Then we resumed in the afternoon. Then we had 11 another caucus. And then we had, I think it was, a fourth 12 session. It was either four or five all together that day. 13 And then it ended, you know, late in the afternoon, maybe 14 4:30, five o'clock, something like that, on Thursday. 15 Q. Isn't it true on Friday, March 29th you told 16 Mr. Minton that if he wanted disengagement, he would have 17 to meet the demands that were placed on him by Mr. Rinder 18 by April the 9th, the following Friday? 19 A. Sir, there weren't any demands placed by -- there 20 was no proposal for a settlement by Mr. Rinder ever 21 presented, so I don't know what you're talking about. 22 It's not like -- we didn't even give him a 23 dollar amount. We told him how much he had cost us. We 24 didn't even make a demand. We didn't say x-number of 25 dollars we want to get paid or whatever. There was never 1521 any specific demand. We weren't up to that point. 2 Q. Well, you didn't expect Mr. Minton to add up all 3 of the figures that you're representing to him in his 13 4 items? 5 A. Actually, you reminded me, as another bit of 6 levity, I did not add them up, as you can see. And when we 7 got all done, Mr. Minton laughed and said, "It sounds like 8 a lot of money? How much is it?" 9 And I said, "I don't know; I didn't add it up." 10 And Mr. Jonas said, "I've got something of a 11 running total. I think it's about 40 million." 12 Q. Did you tell Mr. Minton that you intended to get 13 him back in a deposition and delve into his personal 14 financial matters on the 28th or 29th? 15 A. No. I told him that we already had a deposition 16, scheduled for April 8th in this case, that I was to depose 17 Mr. Minton. And, yes, I was going to seek the answers-to 18 the financial matters, questions that I had tried to ask 19 him earlier, he had refused to answer or in many cases 20 invoked Fifth Amendment privilege. Absolutely. 21 MR. DANDAR: I would like to move Exhibit 5, 22 the notes of Mr. Rosen, into evidence. 23 MR. HILL: Your Honor, no objection, so 24 long as the record reflects that in the upper 25 right-hand corner there seems to be a 1531 handwritten notation in a bracket; "Rosen 3-28 2 notes, hand del,"I guess that's delivered, 3 "6/10/02." 4 Those are not parts of Mr. Rosen's -­ 5 THE COURT: Do you acknowledge that? 6 MR. DANDAR: So stipulated. 7 THE COURT: All right. It will be 8 received. Do you have the original one that I 9 marked? 10 MR. DANDAR: Mr. Rosen does. 11 MR. ROSEN: Do you have them, Bill? 12 MR. HILL: No, I don't have them. I've 13 got a copy. 14 MR. DANDAR: That's it. 15 BY MR. DANDAR: 16 Q. Mr. Rosen, did you meet with Mr. Minton after 17 March 29th? 18 A. No. 19 Q. Do you know how many times Mr. Minton has met with 20 either Mr. Rinder or Ms.Yingling after March 29th? 21 A. I have no idea. 22 The only word I ever said to Mr. Minton after 23 the morning of 29th was when I nodded hello to him if I saw 24 him in a courtroom or when I had,quote, a conversation 25 with him on this witness stand and I examined him, or in 1541 deposition. 2 I never had a word, outside of the deposition 3 or a courtroom, with Mr. Minton after the morning of the 4 29th of March. 5 Q. And, Mr. Rosen, you were involved in the 6 Wollersheim case in California, correct? 7 A. Yes, sir. 8 Q. And isn't it true, sir, that you used the 9 recantation affidavit of Stacy Brooks in the Wollersheim 10 case in California in an attempt to get Mr. Leipold, the 11 attorney representing Mr. Wollersheim, disqualified from 12 the case? 13 A. Sir, I don't know what you're talking about, I 14 really don't. 15 MR. HILL: Your Honor, I hesitate to rise to 16 object, but I understood Mr. Rosen was on the witness stand 17 to question him in reference to March 28th and March 29th. 18 THE COURT: That's what I understood. 19 MR. DANDAR: I apologize, Judge. I don't 20 think I announced that I was restricting my 21 questions just to the 28th and the 29th. 22 THE COURT: I'm announcing it, okay, 23 because it's about your case. Now, it isn't 24 about what Mr. Rosen does in some other case. 25 It's about what he did in this case. 1551 And I don't see what the relevance of what 2 Mr. Rosen does in some other case has to do 3 with this, unless you can explain to me why it 4 is significant or relevant of what he's done in 5 some other case that doesn't involve 6 Mr. Minton. 7 MR. DANDAR: Ms. Brooks is Mr. Minton's 8 mistress. She used to be my consultant on the 9 wrongful death case. 10 Her affidavit in this case and in the 11 wrongful death case was used by Mr. Rosen in 12 the Wollersheim case in California accusing 13 Mr. Leipold of suborning perjury, the same 14 thing they're trying to do here against me. 15 He said that they didn't try to get this 16 wrongful death case dismissed or the 17 Wollersheim case dismissed, but there's 18 correspondence between Mr. Minton and 19 Mr. Leipold and testimony by Ms. Brooks and 20 Mr. Minton to the contrary. There's testimony 21 by Ms. Yingling to the contrary. 22 So I didn't know Mr. Rosen was going to 23 agree with the statements and testimony of 24 Ms. Yingling, but apparently he's in direct 25 opposite of what she said before Judge 156Schaeffer and what her notes say that are in evidence before Judge Schaeffer. I would like to offer - THE COURT: See, since her testimony and anything that she's going to say is not here, I just don't know, you know, what the significance of all of that is. You know, we're here to find out if you suborned perjury, you know, and that's what I would like for you to kind of concentrate on. MR. DANDAR: Okay. BY MR. DANDAR: Q. Mr. Rosen, during March 28th and March 29th, did you or Mr. Rinder ever say to Mr. Minton, "You have to set the record straight in the wrongful death case"? A. That's half right, Mr. Dandar, so let me help you. Mr. Rinder made a presentation towards the beginning of the meeting as follows: The churches have a long history of having suffered as follows: Somebody puts in an affidavit or provides deposition testimony in one case which is false. Years later, that affidavit, that deposition, is provided in some other case to say look what somebody else said about RTC, for example, earlier. What Mr. Rinder said is, your people have put 157 1 in affidavits. To the extent those affidavits are 2 incorrect -- and I believe his words were -- "I want you to 3 correct the record." 4 And it didn't apply to one particular case. 5 Clearly one of the cases involved was Wollersheim where 6 there were affidavits filed in that case by people paid by 7 Mr. Minton, but it was also Ward, the Ward case. It was 8 also the wrongful death case. It was also the case that 9 had been completed in Denver, the FACTNet case. 10 And what Mr. Rinder said -- and he wasn't 11 talking about any particular affidavit. He never mentioned 12 any particular affidavit at all. 13 All he said was, "Your people have put in a lot 14 of affidavits, and all I want you to do is correct the 15 record to the extent that they are incorrect." 16 There was not even a discussion of any 17 particular affidavit or of what was wrong with it, you 18 know, like Paragraph 3 is incorrect. 19 It was just a general, "Correct the record," 20 because we don't want to have to deal with two years from 21 now we'll be litigating some case in Omaha and somebody 22 will walk in with an affidavit that you paid for, 23 Mr. Minton, that was put in in some case in California or 24 Florida or Denver and say, "Here's what Ms. Brooks or 25 Mr. Prince said about those Scientology people two years 158 1 ago." 2 That was the issue. And he said, "Just correct 3 the record; whatever it is." 4 Q. So Mr. Rinder -- neither Mr. Rinder nor you told 5 Mr. Minton or Ms. Brooks that they had perjured themselves 6 in their prior depositions in the Lisa McPherson case or 7 the case before Judge Baird? 8 A. Is that a question? 9 Q. That's a question. 10 A. The answer is, no, I did not, nor did Mr. Rinder, 11 accuse anybody of perjury. 12 In fact, to the contrary, this meeting was 13 cordial, it was civil, there was a lot of bantering and 14 jokes. I mean, I couldn't believe it. It was encouraging 15 that these people who had been at war with each other for 16 so many years could sit for so many hours, you know, and 17 have a pleasant civil conversation to try and resolve their 18 differences. 19 There were never any threats. And certainly 20 words like, "You committed perjury," would never have been 21 used. 22 MR. DANDAR: That's all I have. 23 BY MR. DANDAR: 24 Q. One other question. 25 Did you ever hear Mr. Minton say that 159 1 Mr. Michael Rinder was the trigger on the gun, and 2 Mr. Moxon, the attorney, the in-house attorney for the 3 Church of Scientology, was aiming the gun at him? 4 MR. HILL: Objection, temporal as to time. Are 5 we back at any time or are we back on these two days of 6 meetings? 7 MR. DANDAR: Any time. 8 THE COURT: Is this during these two days? 9 MR. DANDAR: I don't know. It could be. 10 I don't know. It's a broad question. It's at 11 any time. 12 MR. HILL: Well, Your Honor, my objection 13 is this: Mr. Rosen is Counsel in this case. 14 It's an unusual procedure where you let one 15 Counsel call another Counsel. 16 It's solely for the purpose of delving 17 into these two days of meetings. And if the 18 question relates to those two days, then I'll 19 withdraw my objection; but outside of those two 20 days, I object. 21 MR. DANDAR: My question is very broad. 22 It goes beyond the two days. 23 MR. HILL: I object. 24 THE COURT: I don't see the relevance of 25 it if it goes beyond the two days. 160 1 BY MR. DANDAR: 2 Q. Then I will rephrase it to the two days of March 3 28th and 29th. Did you ever hear Mr. Minton say that? 4 A. No, sir. 5 MR. DANDAR: That's all I have. 6 CROSS-EXAMINATION 7 BY MR. HILL: 8 Q. Mr. Rosen, can you state your complete name for 9 the record, please. 10 A. Samuel David Rosen. 11 Q. Mr. Rosen, can you tell us something about your 12 educational background. Start with college and walk us 13 through law school. 14 A. I'm going to try to be real quick, bachelor of 15 arts in philosophy, Boston University, 1966, twenty 16 something credits, I think, towards a master's -- 17 MR. DANDAR: Relevance, Judge. You wanted-to 18 hurry up and get through this, and I didn't ask 19 him anything about his qualifications. 20 THE COURT: You were the one who called 21 him. You're the one that's putting his 22 credibility and apparently his testimony on, 23 you know, before this Court, okay? 24 I think it's important -- apparently it's 25 important to him to get across this 161 information, so I don't see any problem with it. Okay? THE WITNESS: 1969, J.D., cum laude, graduated first in my class in law school, Suffolk Law School in Boston. 1971, master of law from NYU. BY MR. HILL: Q. And any publications to your credit? A. I've written many articles, including one that was cited as authoritative for the Supreme Court of the United States. Q. Pro bono work? A. Where do I begin. I am a charter pro bono mediator for the United States District Court for the 7th District of New York. I handle about four or five cases a year. And in their mandatory mediation program, I served as a charter member of that program, also a charter member of the Eastern District of New York Federal Court Mandatory Arbitration Program, which I serve pro bono as an arbitrator. I've served on many, many committees and bar association groups, was asked by the A.B.A. to be one of, I believe it was, four people who did the presentation on comparative law at the joint annual meeting of the A.B.A. 162 and the Bar of the United Kingdom that was held in 1985. I have for many years served in various capacities with the First United States Trademark Association and the International Trademark Association, done pro bono work for that organization, including writing position papers to support legislation before congress, Amicus briefs. I have been for, I can't even remember how many years, one of the editors of the Trademark Reporter, which is the law review-style publication of the International Trademark Association. Q. And to what state bars do you belong? A. New York. Q. And to how many bars of the federal district court do you belong? A. I have been privileged to be admitted, either full admission or pro hac, to argue cases in -- at last count -- 53 federal district courts or divisions, different ones, in this country from one end of the country to the other. Q. And of the 13 Circuit Courts of Appeals, how many courts are you a member of? A. I have argued cases in 9 of the 13 United States Courts of Appeals. I am a charter member, in fact, of the 11th Circuit Court of Appeal; when it was first 163 established, I had long been a member of the bar of the 5th Circuit Court of Appeals. Q. Now, all of the courts whose bars of which you are a member of, is that by virtue of having tried cases before those courts -- A. Yes, sir. Q. -- or simply by virtue of application? A. No, no. It's by virtue of having applied for membership because I was actually arguing a case. It's not, you know, an application of admission, you just get to have a certificate if you haven't been there. You actually need to be arguing a case to get the admission, even pro hac. Q. And by estimate, how many cases have you tried over your career, Mr. Rosen? A. Well, between the cases I tried for the federal government when I got out of law school and the ones I've tried in private practice, I would say, counting trials, preliminary injunction hearings and cases I sat as a judicial officer, probably 500. Q. And when you look at your clients, how would you describe your range of clients? A. They really run the gamut from small to medium to the largest. I've represented probably ten of the fortune 50 in this country. I've been privileged to represent 164 three foreign governments. I was appointed Special Attorney General by the governor of the Virgin Islands. I've represented the government of the Virgin Islands in litigation. I've represented the government of West Germany prior to the re-unification of Germany. I have represented the Trusteeship of Palal (ph) when the United States gave them their independence and ceased to protect when they were a possession of the United States. Q. Have you ever testified in a court before as a witness? A. Dozens of times, mostly as an expert witness, not as a fact witness. Q. Mr. Rosen, I want you to move us along as quickly as you can, but can you give us the background to take us up to the first meeting on March 28th. A . Sure. Step number one, call from Wally Pope, got great news, Merrett's gone, Minton's got a new lawyer, Howie. Q. Tell me about him, Wally. A. Good guy. He's honest. He's not going to tolerate any kind of crap. You know, he's everything that Merrett wasn't. Great news, Wally, look forward to meeting him. Next call, spoke to Howie, said he would like 165 to talk about settling Mr. Minton's position as a defendant in the liability -- in the breach case. I said, okay, let me call the clients, see what -- I presume we certainly want to do that. Let me call the client, get back to him. I called the client. The next conversation -- Howie, Pope and Rosen -- Mr. Howie, of course we'd be interested in sitting down and talking about a settlement of the breach case; however, let me give you some background. In 1998, we spent a lot of time with Mr. Minton and his then-counsel and came that close to a global settlement of all litigation. It was too bad it fell apart at the last minute. We did settle the one case that brought it about, and that was the FACTNet case in Denver. From our perspective, we would prefer, if your client is willing, to sit down and have a global discussion to get rid of all of the disputes between us. If he wants to do it, fine. If he doesn't want to do it and he wants to talk about just this one case, we'll be happy to do it. Mr. Howie says, "Thank you. I will talk to my client, get back to you." The next conversation I don't think Mr. Pope was on at this point. I think Mr. Howie was kind of 166 talking to me directly. The next conversation is, "I want to ask you a question. My client just told me that Mr. Minton's about to be added as a defendant in the wrongful death case." I said, "Oh, yeah? How is that?" And he proceeded to tell me a story about Judge Schaeffer had directed the church attorneys in that case to name Mr. Minton, and if not she was going to name him or something like that, very vague. "Can we talk about that?" I said, "Of course. I told you, I'm willing to talk about any and all disputes, whether they're in litigation, about to be in litigation, whether we're thinking about it, anything we've got on our minds, anything you've got on your minds. The only way to do a global settlement is to put all of the cards on the table and let's get it worked out so we never have to talk to each other again." The next one, he calls me back and says, "Okay, my client wants to talk about a global settlement." All right. We're going to set up a meeting in Miami or here. Somewhere in Florida. It might have been here, but for some reason I remember Miami. Great. Let's coordinate dates. We couldn't get a date together. 167 At that point, we' re then in here before Judge Baird on a -- I think it was a scheduling conference or something. Maybe it was contempt. I don't remember. It was the middle of March. I met Mr. Howie for the first time in Judge Baird's antechamber. I think Wally introduced me. I shook hands. I said, "It's a pleasure to meet you. My buddy Wally here who I trust has great judgment. He says you're a very straight guy. Look forward to working with you." Mr. Howie goes in and makes this pitch on the record to Judge Baird, "I'm in the case now, you know, the prior counsel is gone, and I will do everything I can to straighten out Mr. Minton and make sure that no more games, you know, that he'll make the discovery, he'll testify honestly," et cetera. I believe the Court at that point even asked me -- because it came up in the context of an adjournment or something. It was either an adjournment of Mr. Minton's deposition or an adjournment to the continuation of the contempt hearing. And the Court turned to me for my position. I said, "Judge, you know, Mr. Pope tells me that Mr. Howie is an honorable guy. I heard what he just said. I think we should give him a chance. I'm willing to consent." 168 And we had a discussion about scheduling. We compared calendars. Okay. We're going to resume Mr. Minton's deposition on April 8th. And then I said to Judge Baird, "You know, I'm very optimistic and hopeful that this works, but I don't know if Mr. Howie is going to be successful, so can we schedule a continuation of the contempt hearing for the morning of April 9th? And I'11 be candid. I want Mr. Minton knowing on April 8th that if he doesn't do what Mr. Howie says, he's coming back here to face incarceration the next morning." And Mr. Howie agreed to it, and I guess Judge Baird's calender allowed it, so that's the way it was scheduled. April 8th, deposition. April 9th, resumption contempt hearing against Mr. Minton on the subject of, I guess, incarceration. Q. And then what happened? A. I got a call from Mr. Howie that Mr. Jonas was going to be representing Mr. Minton in negotiations. I had never met Mr. Jonas, but I talked to him in the past, very familiar with his firm. We've had a good deal of litigation with Hale and.Dorr on the other side. I called him. I said, "Steve, I understand we're getting together." 169 We talked about the location. Why go down to Florida? You know, you get on the shuttle. I said, I'll bring my clients in, and we can set up a meeting. We compared notes as to dates, set the meetings. I said to him, "Steve, you know, we're coming in hopeful that we can reach a global settlement. If we can, fine. If we can't, you know, we'll see how far we can go. "If you would like, we'll prepare an agenda of what we want in advance, and if you could prepare an agenda of what's on your mind." You know, this is like a gripe list, you've got to straighten this out or that out, whatever it is. "If we could exchange them before the meeting, I think that would be productive. Then we could come into the meeting knowing when the meeting begins what each side's list was of proposals, demands, whatever you want to call it, gripes. Steve said, "I think it's a great idea, but I've got a scheduling problem. I don't know when I'm going to be able to meet with Minton. If I have a chance to meet with him before, I will call you, and we'll prepare an agenda and I will exchange it with you." And he said, "I'm not sure it's going to happen because the scheduling is tight. It may have to wait until 170 the meeting." I said okay. I made a comment to him. I said, "Look, Steve, there's one other thing. We need a confidentiality agreement." I said, "I don't want to start off on the wrong foot, but I spent a lot of time trying to roach a global settlement with Mr. Minton in 1998 in Denver, and we had an oral agreement that these were confidential settlement discussions." We didn't get a global settlement, but we settled an enormous copyright case in Denver with Mr. Minton. Except the thing that bothered us is -- and bothered me -- is that the next couple of days after that I started reading stuff on the internet of what happened in this meeting. I said, "Steve, we can't take this. You know, this is not good faith. I want confidentiality. If we're going to have an open discussion, you know, a frank discussion -- here's what you want, here's what I want -- you know, my side, your side -- I don't want to have to read about this on the internet." He says, "I couldn't agree with you more." He says, "If I were involved in Denver, that 171 wouldn't have happened." I said, "Great. Let's make sure it doesn't happen now. But I want to tell you something. My client has got such a bad taste in its mouth from what Minton did last time, I'm going to ask you to put it in writing. "And I'm also going to ask you to put in writing specifically -- not just that there will not be disclosure, but that there will be no internet postings," because that was the hot button last time. He sent me a draft of a letter agreement on confidentiality. I think I might have called him, might have had some minor wordsmithing. He sent me another draft. I looked at it. I called him. I said, you know, Steve, I just realized that this language which I've put in in all confidentialities for almost thirty years, suggested to me by a judge is, you know, you will not disclose -- you know, no one will disclose anything of what happened at this meeting -- and it's a very prosaic term -- except as required by compulsion of law or process. And I use that language literally hundreds of times in confidentiality agreements. And I said to Steve, "I just noticed that that language or something like it is not there." He said to me, "Don't worry. We understand 172 each other. Obviously, if a disclosure is required by law or a subpoena, of course you make disclosure." I said, "Okay, as long as we understand each other, I'm signing the letter now, I'm faxing it back to you. I will see you for breakfast in my office on the 28th of March." Q. And did some issue ultimately arise regarding disclosure regarding the March 28th and 29th meetings? A. Yeah. The very first time that the issue arose here before Judge Baird, Mr. Dandar made some statement about the confidentiality agreement -- and I think it was pretty immediate -- I got up and I said, "We waive it." Now, that would have been within the context of, you know, compulsion of law or process. When a witness is on the stand, of course confidentiality is not a defense. Q. Now, the first meeting on March 28th, where did that meeting take place? A. In the conference room down the hall from my office. Q. And I think you named the participants before, but just to get it clear on the record, who was present from Mr. Minton and his group? A. Minton, Brooks and Steve Jonas. Q. And on behalf of the church, who was present? 173 A. Rosen, Yingling and Rinder. That was in the room. There were others there, but they were the only ones in the room. Q. And you stated you were representing four clients at this meeting. A. Correct. Q. And were representatives of your client there in your offices? A. Yes, three of the four. One of them was -- the representative of Religious Technologies Center who would have been there had some emergency in California, was available by phone. The representatives of Flag and a representative of Church of Scientology of California were not in the meeting room but were in a caucus room down the hall. Q. All right. Do you have a recollection generally about what time this meeting started on Thursday the 28th? A. It was in the morning, 9:30, 9:45, something like that. Q. And can you just walk us through, tell us who said -- as best you can recall -- who said what first and then what followed. A. I'm not really good enough to do that, and some of these meetings kind of merge in my mind, so don't hold me 174 to the specific order, but I know Mike started with some -- Mike Rinder started with some introductory remarks, which I think I've already given to Mr. Dandar -- we would prefer a global settlement. We really just want disengagement. I think that you want the same thing. You know, let's see if we can do it. And he raised this issue about, you know, all of the damage that Minton and his people have done to the church. He talked about the need to correct the record; we can't leave this stuff out there. And then kind of like a segue in terms of introduction to me said, "And Sandy is going to tell you about the financial damage that you've done," you know, and he turned it over to me. And as I went through those notes, that took probably a half an hour, because each one -- some of them Minton knew nothing about. All of them, Jonas knew nothing about. So, you know, we had to go through and explain them, you know, what they were, as to each item. Q. So when Mr. Rinder turned the meeting over to you, what you had was Defendant's Exhibit Number 5 to this hearing which is the notes that you had written prior to the hearing, talking points. A. Yeah. They were notes of my use in terms of -- you know, my notes as to what I was going to say. 175 Q. All right. And you say you spent about 20 or 30 minutes going through your presentation? A. Yeah, I think so. Q. Now, at the time you were making your presentation and through the entire day on March 28th, tell us again what the tone of that meeting was like. A. Civil. I mean, jokes were flying from both sides of the table. I remember one, there was talk about -- well, okay, you know, we may be able -- if we can bring about a resolution of the wrongful death case -- and I turned to Mr. Minton, and I said, "Well, look at the sheet. Look.at the second line -- you know, how much is budgeted to spend to finish the case -- you can save our clients that money, you get a gold star. "And not only will we give you a gold star, but when we talk about a monetary component to this settlement, we're going to give you credit for that." And everybody kind of laughed. And later on when there was a discussion of Wollersheim, I remember Mr. Jonas saying something about, and if he speaks to -- if Minton speaks to Wollersheim and gets the settlement to this one, does he get a gold star also? And I said, "Yep, he can earn a couple of gold stars by making these problems get resolved." So it was very light banter. I mean, it was extraordinarily friendly. Nobody raised their voice. There weren't any untoward language and incendiary words like perjury. Q. Now, even as you sit here today, has there ever been a RICO complaint drawn up against Mr. Minton? A. Not even the first page of it. Q. How many caucuses were there on the first day of March 28th? A. There was one caucus after we presented the first presentation, and the other side went to the caucus to discuss what we just told them. Then the meeting resumed and there was a lunch break. In the afternoon, there was a meeting starting after lunch, then there was a caucus, then there was another meeting. And there might have been a fifth session. I just don't remember. Q. Now, you are outside of the group meeting on March 28th two times; am I correct? A. Twice, correct. Q. The first time you were out, approximately how long were you outside the group meeting? A. I think it was about ten minutes, maybe fifteen minutes. Q. And on the second occasion you were out, approximately how long were you outside the group meeting? 177 A. The second occasion, I didn't step out. What happened was we returned from lunch. Everybody was ready to get started. And I was dealing with a problem -- an emergency matter for another client. So I said to Mike and Monique, "Go ahead and start without me. I have to deal with this, and I will join you." So it was maybe five or ten minutes that I was late getting to the session into the conference room for the session that started after lunch. Q. All right. Now, in order to give the Court some idea as to exactly how much time, approximately, the amount of time that was spent together as a group -- not counting lunch, not counting the caucuses, but the amount of time over the entire day of March 28th -- approximately how much time was spent together as a group, the Minton group and the church group? A. We sat across the table for what I would estimate to be two-and-a-half, three hours. Q. So the meeting on March 28th, in substance, with all parties together, was two and a half to three hours? A. Something like that, if you add up all of the pieces of the sessions, yeah. Q. Now, at some point during the day on March 28th, did Mr. Jonas present the agenda for the Minton group A. Yeah. Q. What did he say? A. Yes, he did. After the first caucus, we got together again, and there was some discussion about they had some additional questions about things we were talking about, and there was discussion about that, and then Jonas -- I think he was reading from something -- but he said, okay, we have a proposal or we have a list to present to you of what we want. And I went like this and picked up my pen, and I was ready to write something down. And the first thing I heard was, "Mr. Minton has spent a lot of money -- invested a lot of money in the wrongful death case -- and he wants you to reimburse him the money he gave the estate." I just dropped my pen and swivelled my chair around, you know, demonstrating -- politely -- my disgust for that to be a demand, that we should reimburse Mr. Minton for how much money he funded in the case. The next demand was even more bizarre. In my mind, anyway. Demand number two was that the church bring about the end of Mr. Minton's problems in Nigeria. I said, "Steve, I haven't got the slightest clue what you're talking about. What problems in Nigeria?" And he looked at me and said, "Well, Mr. Minton 179 apparently is the subject of a criminal investigation by whatever the equivalent is to the attorney general of Nigeria." So I looked at him and said, "You don't think that Church of Scientology controls the Nigerian government, do you? "I mean, I don't get.this. You're asking us to stop the attorney general from investigating Mr. Minton?" I said, "Come on, that's a non-starter. What are we talking about here?" And if there was one time during that entire day I probably got a little hot and expressed my outrage, that was it, because I felt we were just wasting time with those kind of demands. Then he got down to some other demands which seemed reasonable. Whether they were agreeable or not, I don't know. But he said, "I got this building right next to the church in Clearwater. I paid $300,000 for it," or something like that. "How about if we work out a deal as part of this that the church buy the building from me?" All right. Well, I didn't know if they wanted to do it or not, I didn't respond to it, but at least it was a demand that was in the ballpark, had some logic to 180 it. And he went through a couple of other things that he had. He asked for clarification as to whether the resolution of the wrongful death case was going to be a condition of a settlement. And I think it was Mike Rinder who said, "No. We would strongly prefer a global settlement which includes the settlement of all cases. And you're not getting out of that case until the case goes away." And I added the same thing, "You're not getting out of the breach case by Judge Baird until that case is resolved." And that was it. They asked for a lunch break, and we went our separate ways to have lunch. Q. Okay. Now, after lunch, what if anything do you recall by way of discussions that might be noteworthy A. Well, after lunch when I rejoined the group, there was nothing -- it seemed like people were repeating themselves. There were statements that were made that I already heard earlier in the day. There is not one thing I can capture to say to you that this was something brand new that, you know, I had not heard earlier. I did hear that -- at some point in the afternoon - that they were - Minton was going to make an earnest effort to see -- to talk to Dandar and Dell and see if he could bring about a resolution with Dell of the case. I remember that in the afternoon -- again, this was repetitive -- Jonas asked Mike Rinder -- it must have been the third time -- he asked him, "Is the resolution of the wrongful death case a deal breaker here?" And Mike said, no, you know, we really prefer it. I mean, I really want to have a deal that includes that case, but, you know, it was not a deal breaker. Q. Now, during this meeting on the 28th, were there any implicit or explicit threats made toward Mr. Minton or any member of his group by you or any member of your group A. Not even anything approaching a threat. Q. To your understanding, was Mr. Minton threatened in any way? A. Well, Mr. Minion felt threatened, and he expressed that even more so, I think, on the afternoon of the 28th and even more so the next day. And the next day it really came out. Mr. Minton felt very threatened. He didn't feel threatened by us. He felt very threatened he was going to jail. He was really agitated about the fact that he had a criminal contempt proceeding that was coming up before Judge Schaeffer where I think somebody said that it 182 was the judge that started the proceeding, you know, as opposed to a party, that the judge directed the criminal contempt motion to be filed. I'm fuzzy on this. And he had this proceeding before Judge Baird. There was no question that Minton was very, very concerned about the consequences of his perjury and the consequences of what two judges in this county were going to do to him. He didn't make any secret about that. Q. But you were not the source of any threats to Mr. Minton? A. Not, not at all, only to the extent that he can say I caused it because I'm the one that filed and pursued the contempt remedies against him in this court. Q. And your clients were not the source of any threats to Mr. Minton? A. Absolutely not. Q. Now, on March 29th -- and back on the 28th, about what time did you all break on the 28th? A. 4, 4:30, five o'clock. Q. Did you offer to allow Mr. Minton's group to continue to stay in your offices there in New York and use your facilities? A. Yes. Steve actually said to me, "Okay, we've had a long day. We've said a lot. We need some time to digest and think about this, and I want to reflect on what happened today, so let's break for the day." And I said, "Well, Steve, you're welcome to, you know, use my conference room. You can use it all night if you want to. Do you want any food or anything? We'll have it sent in." He said, "No, my firm has an office here in New York." I said, "Really? I didn't know that. Of all of the years I have litigated against Hale and Dorr, it's always Boston. I didn't know you had a New York office." He said, "Yeah, it's right across the street." I said, "Fine, so you don't need my hospitality. Let's pick a time to get together tomorrow." And that's what we did. We arranged to start the meeting again in my office the following morning. Q. And the next morning, Friday, March 29th, you met in your office. A. Yes, sir. Q. Who was present from Mr. Minton and his group? A. The same six people were present at the meeting. Q. The same six people. How did the meeting start on the 29th? A. Mr. Jonas reported that the evening before he had spoken to Mr. Dandar. It was either he had spoken to Liebreich or Dandar had spoken to Liebreich. I'm not 184 exactly clear on what that report was. Q. Just to be clear on time, meaning Thursday evening before they left your offices. A. Correct. And that Mr. Minton was not going to be able to bring about a resolution. And then they proceeded to tell us a story which I heard for the first time. And that was, this was not a surprise that they failed the evening before, it was not a surprise to them, because the previous summer, August and September of 2001, they told us, Ms. Brooks contacted Liebreich to try to see if she could bring about a settlement and to talk to Ms. Liebreich about, you know, what did she really want to settle this case. And when, as they reported to us, when Mr. Dandar found out about that, he instructed Ms. Liebreich never to talk to Ms. Brooks again. So I was totally unaware of this history, but we were being told this because this was an explanation for why they were unsuccessful the evening before in terms of, you know, making any headway with Mr. Dandar and Ms. Liebreich, and try to disabuse me, at least of our belief, that Minton controlled the case -- the money, the witnesses -- and he was the real plaintiff. So, you know, I'm like, you're telling me you can't make the case be resolved. 185 So in any event, they told us this story. And we kind of looked at each other. And they said, "You know, we're going to pursue it. We're trying to set up a meeting with Dell and with Dandar sometime next week. We're not giving up talking about it, but I'm being honest with you; this does not look like it's going to happen." Q. And what was you all's response to that? A. I said, all right, let's move on to the next subject. Q. You didn't shut down discussions? A. Absolutely not. I said, "Okay. What do you want to talk about now? We've got all of these other items that we're in disagreement on. Let's talk about them." And that was the point at which Jonas said, "Look, we'd like some time." I said, "Go ahead, take time." He said, "No, no, no. We want you to agree to some postponements to give us some more time." I said "What are you talking about." He said, "Well, we've got a series of proceedings that are coming up in Florida next week, ten days." I said, "Well, the only ones I know about are 186 the ones I'm involved in, the breach case, you know, April 8th Mr. Minton's deposition, April 9th continuation of the contempt hearing." He said, "Well, there are proceedings going on in the wrongful death case." I said, "What are they?" And Ms. Brooks said that there was a deposition scheduled for I believe it was the following Tuesday of her bank to produce records, and then there was this contempt hearing before Judge Schaeffer, criminal contempt. I mean, I'd heard that that existed. I didn't know the date. And they told me that that was on for the 5th of April. And they made a pitch for us to get these matters postponed, that we should ?? to the extent we could agree to postpone something like a deposition, we should do it, to the extent we needed to go to a judge, that we should go on and on, for example to Judge Schaeffer and jointly request a continuation. Q. What was your response? A. This was in the context ?? I said, you want this time in order to ?? you're telling us you want to continue towards settlement. It may not be a global settlement, but you want to continue on this process of resolving as many disputes as we can? 187 "Yeah." "But you need time to work out the resolution." He said, "Yeah." I said, "No postponements." I said, "I've been going at this with Minton for one year, okay?" I said, it is now ?? it was Friday morning. I remember it was Good Friday. It's about eleven o'clock in the morning, 10:30 or so. I said, "I'm here all weekend." I turned to Mike, "He'll stay," Mike Rinder. I knew Monique was going back home that evening. I said, "I've got typists 24 hours a day, 7 days a week in my firm. You want a reporter, I will bring in a court stenographer." "I'm willing to sit here with you as long as it takes. You want to get it done before the first of these events, which is Ms. Brooks' deposition or her bank's deposition or something the following week, I will sit here with you around the clock. "Let's get it out on the table. Let's talk about the issues that need to be resolved. Let's agree on what we can agree on or agree what we can't agree to. But I'm not agreeing to any more time. I mean, we've heard this too much." And that was the very first time in the meeting that the meeting turned, let me say, less than cordial. Ms. Brooks went ballistic, and she started screaming at me, you know, "I can't believe how unreasonable you are. Bob is sitting here, he's telling you that he wants to make peace. He's going to do whatever he can to make peace. And you won't give him the opportunity, the time he needs." I said, "The time he needs is right here. I will sit with him. Mike will stay here. I will sit with you, your Counsel. If it's going to get done, there's no reason why it can't get done this weekend." And, like I say, if looks could kill, I mean, I think I would have been a dead man at that meeting. But Steve said, "Calm down, Stacy." And he really had to restrain her. He said, "Let's talk. Give us a few minutes to talk." So we left them in the conference room, walked back to my office. And a few minutes later, Steve called me, you know, on the phone in my office and said, "Look, I just want to tell you that we're leaving." I said, "Are you leaving and coming back later?" He said, "No, we're leaving," and then he hung 189 up. I walked out of my office and around the corridor. I was going to say goodbye and at least shake hands with them, you know, with the three people. By the time I got to the corridor, they were gone. And that was the last time I ever had any words with any of the three of them, Jonas, Minton or Brooks. Q. Now, prior to these meetings on March 28th and March 29th, had you ever met before with Mr. Minton? A. Yeah, in 1998 ?? I think it was 1998 ?? we attempted get a global settlement at that time, in Denver. The occasion was we had a case coming up for trial, a big copyright infringement case that Mr. Minton was not only funding the Defendant Mr. Wollersheim, he was funding the defendant's lawyer, Mr. Leipold, and he was funding all ends of this case. And we had a discussion at that time ?? we had some serious discussions at that time in an attempt to reach a global disengagement, and they didn't work out, but we did reach the ?? you know, a partial settlement. We got a consent judgment, a permanent injunction that was entered by the District Court in Colorado. We got a consent to a monetary amount of damages, and we even agreed we wouldn't even try to enforce it, so long as there was compliance, you know, with the 190 injunction. I mean, it was a relatively simple good faith to bring about that settlement. Q. Now, subsequent to those meetings in 1998 to work a settlement in that case in Colorado up until March 28th of 2002, had you had any meetings with Mr. Minton? A. I think the only time I ever saw or said anything to Mr. Minton is when he was in the deposition chair or when I saw him in the courthouse here, when we would go in the men's room or something like that, and that would only be hello. Q. And since the Friday, March 29th meeting with Mr. Minton up until this very day, as you sit here on this witness stand, have you had any meetings with Mr. Minton? A. No communications of any kind. Q. Now, did any member of your group on March 29th, that Friday, attempt to extort or make any threats to Mr. Minton? A. Absolutely not, sir. Q. At any time during the meetings on March 28th or on March 29th, did Mr. Jonas ever accuse you or any member of your group of attempting to threaten or extort his client? A. Absolutely no. Q. At any time during these two days on March 28th and March 29th, did Mr. Minton ever complain that he felt 191 threatened or extorted by you or any member of your group? A. Absolutely not. Q. Did Ms. Brooks ever make such a claim? A. Not to my knowledge. MR. HILL: Can I have a moment, Your Honor? THE COURT: Certainly. MR. HILL: Your Honor, those are all of the questions I have. (Thereupon, this transcript continues directly to Volume II.) 192 1 CERTIFICATE OF REPORTER 2 3 4 STATE OF FLORIDA ) 5 ) 6 COUNTY OF PINELLAS ) 7 I, Susan M. Valsecchi, Registered Professional 8 Reporter, in and for the Sixth Judicial Circuit, State of 9 Florida: 10 DO HEREBY CERTIFY that I was authorized to and 11 did stenographically report the foregoing proceedings and 12 that the transcript is a true and complete record of my 13 stenographic notes. 14 DATED this 1st day of September, 2002, at 15 Clearwater, Pinellas County, Florida. 16 17 18 [signed] 19 Susan M. Valsecchi, RPF 20 Registered Professional Reporter 25

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