Rule 56 F motion, Goes into details of Scientology's fraud on the Federal Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 95-K-2143
RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation.
Plaintiffs
v.
F.A.C.T.NET, INC., a Colorado corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual.
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION PURSUANT TO Fed.R.Civ.P. 56(f)
COME NOW the defendants, F.A.C.T.Net, Inc., and Lawrence Wollersheim, by and through their respective counsel of record, MUSICK, PEELER & GARRETT, LLP, HAGENBAUGH & MURPHY and BEEM & MANN, P.C., and submit the following memorandum of points and authorities in support of their motion for orders to either (1) strike the renewed summary judgment motion of plaintiff Bridge Publications, Inc.; or (2) a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. This motion is not made for the purposes of delay and cannot prejudice Plaintiffs because they have served defendants and their counsel with copies of a permanent injunction, covering the very same works at issue herein, with the admonition that defendants and their counsel are bound thereby. I. INTRODUCTION 1. Plaintiff Bridge Publications, Inc.'s ("BPI") Renewed Motion For Summary Judgment Against All Defendants For Copyright Infringement (the "Motion") is still premature in that Defendants have been obstructed from conducting meaningful discovery and/or have not yet had the opportunity to discover information vital to Defendants' opposition to BPI's Motion. Specifically, Defendants have meritorious defenses to BPI's Motion including, inter alia, (i) the invalidity of BPI's copyrights; (ii) Defendants were previously discharged by BPI from any claims of copyright infringement in the instant action pursuant to a valid release obtained in a previous action; (iii) the actual number of the various works at issue in this case is only thirteen and not "1900" as alleged by BPI; and (iv) many of the works at issue in BPI's Motion were uploaded and/or "planted" on Defendants' Bulletin Board System by entities and/or individuals other than F.A.C.T.Net and without F.A.C.T.Net's knowledge and/or consent. 2. These defenses all create triable issues of fact which will likely preclude BPI's Motion. Without the opportunity to further discover this information, Defendants' ability to put on their case and oppose BPI's Motion is severely compromised. Accordingly, Defendants respectfully request that the Court strike Plaintiffs' renewed motion for summary judgment, without prejudice to renew at the appropriate time, and permit defendants the discovery they have been vainly seeking. II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE 3. Rule 56(f) of the Federal Rules of Civil Procedure provides that: Should it appear from the affidavits of the party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.The policy behind Fed.R.Civ.P. 56(f) is straightforward: "Summary judgment should not be granted where the non-moving party has not had the opportunity to discover information that is essential to his opposition." Committee for the First Amendment v. Campbell, 962 F.2d 1517, 521-22 (10th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). "The protection afforded by Rule 56(f) is an alternative to a response in opposition to summary judgment under 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986) (quoting 10A Wright, Miller, & Kane, Federal Practices and Procedure §2740 (1983)). See, Miller v. United States Department of Transportation, 710 F.2d 656, 666 (10th Cir. 1983) ("[D]iscovery is strongly favored and generally denying the right to have full discovery on all pertinent issues before a summary judgment is granted would be error, particularly in the face of a Rule 56(f) affidavit.") 4. Consistent with its underlying policy, courts treat Rule 56(f) motions and affidavits liberally: "Unless dilatory or lacking ill merit, the motion should be liberally treated.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (quoting James W. Moore & Jeremy C. Vicker, Moore's Federal Practice 56.24 (1988)). See, Jensen v. Redev. Agency, 998 F.2d 1550, 1554 (10th Cir. 1993); RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F.Supp. 1441, 1448 (D.N.M. 1996). 5. More specifically: in order to invoke the shelter provided by Rule 56(f), a party must (1) file an affidavit, Pasternak, 790 F.2d at 832-33, (2) identifying the probable facts not available and their relevance, Committee for the First Amendment v. Campbell, 962 F.2d at 1522, (3) explaining "why facts precluding summary judgment cannot be presented...," Id., and (4) stat[ing] with specificity how the desired time would enable the non-moving party to meet its burden in opposing summary judgment...," Jensen, 998 F.2d at 1554 (citation omitted). III. DEFENDANTS HAVE DILIGENTLY PURSUED THE DISCOVERY THEY SEEK 6. The filing of Plaintiffs' renewed motion for summary judgment, at this time, is upon the blatant pretense that "[d]efendants have done nothing to advance this case since BPI originally filed its motion for summary judgment seventeen months ago," Pls. Mem. in Support of Motion, etc., p. 2, 3, and Todd Blakely's assertion that (1) "all discovery closed . . . as of May 31, 1996," (2) "[t]he last obtained extension expired on August 15, 1996. Defendants have never sought leave to amend the Scheduling Order." Blakely Decl. 9. Plaintiffs' pretense is belied by the pertinent facts. A. Plaintiffs Have Themselves Ignored The Claimed Discovery Cutoff Date. 7. Plaintiffs served F.A.C.T.Net's counsel of record, Graham E. Berry, Esq., with a deposition subpoena duces tecum only days before he sought pro hac vice admission in this Federal District. Thereafter, Plaintiffs strenuously opposed F.A.C.T.Net's motion for a protective order. On November 21, 1996, this Court granted F.A.C.T.Net's motion for a protective order regarding the deposition of its counsel herein. Similarly, Plaintiffs served deposition subpoenas duces tecums on both R. Vaughn Young and his wife. At the time, there had been no indication that either of the Youngs had been retained as expert consultants herein. There has been extensive correspondence regarding the deposition of Vaughn Young (see generally, Exhibits 2-22, 26, 28-30, 32-34, 57, 58, 66, 67, 69). 8. Significantly, F.A.C.T.Net's counsel wrote to Plaintiffs on December 3, 1996 and advised them that Defendants had "retained Mr. Young as an expert consultant . . . [and] at the appropriate time, Mr. Young will be designated as a defense expert witness on certain relevant matters." Furthermore, Defendants objected to Mr. Young's "deposition being taken twice in this litigation" and suggested that Plaintiffs postpone their "deposition of him until [he had been designated as an expert witness when Plaintiffs could] examine him on the opinions he has agreed to provide and the basis for those opinions." Berry Decl. Exhibit 5. Mr. Young has not been designated as an expert witness herein and there has been no statement as to the issues on which he would be prepared to render opinions. On December 11, 1996 Plaintiffs responded that they would take his deposition twice. Immediately as a percipient witness and subsequently as an expert witness. "[O]ur clients cannot be expected to wait for you to designate him as an expert before deposing him as a percipient witness . . . [T]herefore, we will depose Mr. Young now, and if you then designate him as an expert witness we will notice him for deposition at that time also." Berry Decl. Exhibit 7. 9. As explained in greater detail below, on April 14, 1997, a status conference was held before Magistrate Judge Abram. At that time, Plaintiffs' new counsel Samuel Rosen, Esq. successfully argued that discovery had closed and all of defendants' pending discovery (e.g., Exhibits 45-46) should be taken off calendar and withdrawn. In response to F.A.C.T.Net's counsel's argument that Plaintiffs had themselves ignored any discovery cutoff, Mr. Rosen successfully argued that Plaintiffs were taking Mr. Young's deposition as an expert witness. / On that basis, the Court, despite having scheduled discovery conferences every two months throughout the rest of this year, struck all of Defendants' pending discovery until such time as a motion to amend the Scheduling Order was granted. 10. Plaintiffs' argument was all the more deceptive because the parties had been engaged in "meet and confer" communications regarding Defendants' requested depositions for four months. See generally, Berry Decl., Exhibits 12, 13, 23, 24 and 25. Indeed, for the previous four weeks, the parties had been specifically engaged in the "meet and confer" process regarding Plaintiffs' Request for a F.R.Civ.P. Rule 16(a) pretrial discovery scheduling conference. See generally, Berry Decl., Exhibits 27, 28, 29, 30, 31 and 33. Moreover, on March 31, 1997, the parties signed a Joint Request for Pretrial Conference Pursuant to Fed.R.Civ.P. 16 which was thereafter filed. Exhibit 36. Plaintiffs deceptive flip-flop as to the status of discovery was even more disingenuous considering this Court's February 12, 1997 Order referring, inter alia discovery motions, to Magistrate Judge Abram. Berry Decl. Exhibit 21. 11. Plaintiffs also ignored this Court's February 21, 1997 ruling upon the arrogant assumption that this Court did not know what it was doing (Moving Mem. p.2, fn.3) and the misplaced assumption that this Court does not have the power to do what it did sua sponte. On February 21, 1997 various motions were before this Court including BPI's original motion for summary judgment. See generally, Berry Decl. Exhibit 22. On that occasion, the Court held that this case was not "well suited to summary judgment proceedings" and that it was "denying the motion for summary judgment without prejudice to renew at the close of discovery." Berry Decl. Exhibit 22, p. 4:15-22. Furthermore, the Court remanded the matter "to the Magistrate to conduct discovery." Berry Decl. Exhibit 22, p. 4:25-5:1. Moreover, the Court stated that "there are accusations that have been made here, and . . . if at the close of discovery, there is evidence to some of these accusations have even a reasonable ground to support them, I am going to submit this matter to the United States Attorney for presentation to the Grand Jury." / Berry Decl. Exhibit 22, p.5:24-6:4. And if this wasn't enough, the Court again stated "the motion for summary (sic) is denied without prejudice. It may be renewed after the close of discovery." Berry Decl. Exhibit 22, p. 6:16-18. 12. Accordingly, it is abundantly clear that the Court itself had determined that the original Scheduling Order had been superseded by subsequent events, including but not limited to the change of counsel, and that discovery proceedings were now governed by the Court's February 12, 1997 Supplemental Order of Reference to Magistrate Judge. Berry Decl. Exhibit 21. B. Plaintiffs' Discovery Flip-Flop Was Blatant Obstruction. 13. As indicated above, shortly after F.A.C.T.Net's new counsel was admitted herein pro hac vice, Defendants set about requesting the depositions of various witnesses. In large part, these witnesses were controlled by Plaintiffs and Defendants knew from past experience that it was virtually impossible to access these plaintiff-controlled witnesses for service by subpoena. 14. For example, former RTC president Vicki Aznaran has provided declaration testimony that "Miscavige has been known to. . . hide out from process servers." Berry Decl., Exhibit 93, p. 000016, lns. 15-20 (filed under seal). See generally, Berry Decl., Exhibit 92, Declaration of Michael J. Calagna (filed under seal). To that end, the parties engaged in a extended "meet and confer" process during which plaintiffs never once raised their subsequent "discovery cutoff" objection. See generally, Berry Decl. Exhibits 12, 13, 15, 24, 25, 27-37, 44. Indeed, Defendants themselves, in a March 6, 1997 letter to Plaintiffs, and on the assumption that there would be agreement and cooperation as to the depositions Defendants were requesting, stated that they "would like the Court to impose a discovery cutoff date in 90 days time and a trial date (depending on the Court's schedule and wishes) in 120 days." Berry Decl. Exhibit 24, p. 3 4. 15. By March 20, 1997, Defendants were increasingly frustrated by Plaintiffs' strategy to "obstruct and delay all discovery sought by Defendants." Berry Decl. Exhibit 30, 2. In the same letter, Defendants stated that although they had agreed to join Plaintiffs' "request for a F.R.Civ.P. Rule 16(a) discovery scheduling conference, [they were] not going to treat it as being an informal stay of Defendants' discovery rights. Consequently, since [Plaintiffs] had failed to cooperate in the scheduling of depositions as required by Local Rule 30.1A, [Defendants would] now proceed with the unilateral subpoenaing of third party witnesses, and the noticing of the depositions of Plaintiff-controlled witnesses, and the service of other discovery requests." Berry Decl. Exhibit 30, p. 2, 3 and 4. Specifically, Defendants requested immediate dates for "the deposition of Mr. David Miscavige, the Chairman of Plaintiff RTC, the managing agent of the Scientology Organization which includes Plaintiff BPI, and the person with the most unique percipient knowledge gained during the relevant time periods . . . ." Berry Decl. Exhibit 30, p. 3, 2 and 3. See also, Berry Decl. Exhibit 33, p. 3, 2. 16. On April 1, 1997, Mr. David Miscavige was ordered into immediate deposition by the Court in the related case of Religious Technology Center v. Dennis Erlich, USDC, NDCA No. C95- 20091 RMW (EAI). / Berry Decl. Exhibit 37. That deposition has been taken. Then, over the next ten days, Defendants herein served written discovery including a subpoena for records regarding the death of L. Ron Hubbard (Berry Decl. Exhibit 38), a second request for production of documents (Berry Decl. Exhibit 39), and four sets of requests for admission (Berry Decl. Exhibits 40-43). Many of these document requests, and requests for admission, focused on the respective roles of L. Ron Hubbard, David Miscavige and certain other senior Scientology executives in connection with the matters at issue herein. 17. On April 14, 1997, at a status conference herein, Plaintiffs filed a summary of recent F.A.C.T.Net discovery requests. Berry Decl. Exhibit 44. On the same date, notwithstanding all of the matters above, Plaintiffs' new counsel Mr. Rosen successfully, and misleadingly, persuaded this Court that all discovery had been closed and should not be reopened. Berry Decl. Exhibit 45. Thus, in one foul swoop, Plaintiffs had sandbagged both the Court and the Defendants, and had rendered four months of expensive and extensive discovery communications and negotiations moot. In so doing, Plaintiffs had again succeeded in blocking any immediate deposition of David Miscavige, had avoided producing documents and had avoided responding to requests for admission which Defendants had tailored to try and reduce the need for, or areas of, deposition discovery. C. Between April 15, 1997 and May 16, 1997, The Parties Met and Conferred Regarding An Amended Discovery Scheduling Order. 18. The chutzpah of Plaintiffs' claim that Defendants "have done nothing to advance this case" Moving Memorandum, p. 2, 3, is further evidenced by the correspondence and meetings the parties had between April 15, 1997, and May 16, 1997. 19. The day after Plaintiffs successfully sandbagged the Court and the Defendants with their misleading and surprise status conference argument that discovery had closed and that all of defendants pending discovery should be stricken, Plaintiffs wrote to Defendants regarding the discovery they needed "in order for the record to be complete and for the Court to proceed to decide a summary judgment motion by Bridge (covering the published works only), assuming [Defendants] Motion to Amend [their] pleading is denied." Amazingly, Plaintiffs added that their "position is that all discovery is closed . . ." Berry Decl. Exhibit 46, p. 2, 1. 20. Defendants then proceeded to provide extensive explanation as to which persons they wished to depose and why. See generally, Berry Decl. Exhibits 48, 49, and 68. / Specifically, on April 21, April 24, and May 5, 1997, Defendants provided extensive facts and argument as to why they were entitled to take David Miscavige's deposition. Berry Decl. Exhibit 49, 52 and 68. Finally, on May 5, 1997, Defendants stated that Plaintiffs were "blatantly obstructing any effort by Defendants to amend the Scheduling Order" and that they would "now proceed with the filing of a motion to compel the deposition of David Miscavige accompanied by declaration of non-cooperation in connection with the "meet and confer" requirements of the Local Rules. Berry Decl. Exhibits 68 and 69.1 21. Simultaneously, Defendants had been pursuing informal document discovery via the Internet. See generally, Berry Decl. Exhibits 59-66. In response, Plaintiffs even objected to this, and accused F.A.C.T.Net's counsel "of being a co-conspirator in connection with alleged theft, alleged unlawful copying and other alleged violations of Plaintiffs' claimed intellectual property rights." Berry Decl. Exhibit 70. D. Defendants F.A.C.T.Net And Wollersheim's Ex Parte Petition For A Stay In The L. Ron Hubbard Estate Proceedings Prompted Settlement Negotiations Herein Between May And July 1997. 22. On May 7, 1997, F.A.C.T.Net and Lawrence Wollersheim filed an Ex Parte petition for a stay in the L. Ron Hubbard estate proceedings, and a suspension of the powers of executor Norman F. Starkey pending the filing of a petition seeking certain relief. The Ex Parte Petition, Supporting Declaration and Exhibits / also provides extensive argument and evidence as to the need for certain depositions herein, such as those of David Miscavige, Norman Starkey, Mary Sue Hubbard, et al. The Court denied the Ex Parte, because of an absence of exigent circumstances, without prejudice to renew by regularly noticed petition. See generally, ex parte Petition and supporting Declaration of Graham E. Berry (filed under seal), Berry Decl. Exhibits 71 and 72. See generally Exhibits 72, 73 and 82. 23. The very next day, Plaintiffs and Defendants "met and conferred," regarding the deposition of David Miscavige and others, at the offices of F.A.C.T.Net's counsel in Los Angeles. At this "meet and confer" Plaintiffs continued to stonewall Defendants' discovery efforts despite being provided with "hundreds of pages of legal analysis, factual analysis, and other matters pertinent to FRCivP Rule 26(b)." Berry Decl. Exhibit 74. See also, Berry Decl. Exhibits 75, 77, 78, 81, 82. On May 15, 1997, Defendants advised Plaintiffs that they were preparing a motion to amend the Scheduling Order to reopen discovery, a motion to compel the immediate deposition of David Miscavige, and that the motions would be calendared for hearing on Friday, June 6, 1997, at the discovery status conference in this matter. Berry Decl. Exhibits 77, p. 1, 3. Almost immediately Plaintiffs responded by engaging Defendants in settlement negotiations. / E. The Parties Were Engaged In Settlement Negotiations >From Mid-May 1997 Through Mid-July 1997. 24. Following Defendants' May 5, 1997 statement that they would move "to compel the deposition of David Miscavige" (Berry Decl. Exhibit 68 & 69) and their May 7, 1997 ex parte petition for a stay in the L. Ron Hubbard estate proceedings (Ex Parte Petition and Supporting Declaration (filed under seal), Berry Decl. Exhibit 71 & 72) Plaintiffs expressed their wish to engage in meaningful settlement discussions. Thereafter, Plaintiffs communicated and met with Defendants over a seven week period through to mid July 1997. Wollersheim Decl. 2. During this period, it was understood that there would be a total litigation and discovery "standstill" and so Defendants' motions to amend the Scheduling Order and to compel discovery were not pursued. Wollersheim Decl., 2. Plaintiffs' evolving settlement conditions eventually prompted Defendants to break off settlement negotiations. In essence, although Plaintiffs wished to continue with the settlement negotiations, Defendants could not accept certain non-negotiable conditions. Wollersheim Decl. Exhibit A. A mere two weeks later, BPI filed this motion for summary judgment claiming that Defendants had not diligently pursued discovery. IV. FURTHER DISCOVERY IS VITAL TO DEFENDANTS' OPPOSITION TO BPI'S MOTION 25. For the reasons stated below, Defendants are entitled to further discover certain information vital to Defendants' opposition to BPI's Motion. Specifically, Defendants should be allowed to further discover information pertaining to (i) when and whether the works at issue were published; (ii) the identity of the authors of the various works; (iii) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and (iv) the circumstances surrounding the purported assignment and transfers of rights and claims by any and all persons, in connection with any of the various works at issue, including L. Ron Hubbard's purported assignment of the various works at issue; (v) the circumstances surrounding the purported testamentary disposition of the various works at issue; (vi) the circumstances surrounding the post-testamentary disposition of the various works at issue; (vii) BPI's previous broad general release of Defendants from the conduct alleged in BPI's Motion; (viii) the actual number of the various works at issue; (ix) how the allegedly infringing works were uploaded on to Defendants' Bulletin Board System in the first place; and (x) the fact of, and extent of, revisions being made to any of the various works at issue. Because this information all raises genuine issues of material fact, it is essential to the proper evidentiary support for Defendants opposition to BPI's Motion. A. Defendants Are Entitled To Further Discover Facts Demonstrating The Invalidity Of BPI's Copyrights. 26. BPI alleges in its Motion that it has valid copyrights in the works at issue. In support thereof. BPI attaches certificates of registration for each of the works at issue. Although generally such certificates constitute prima facie proof of validity and ownership of the copyrights, Defendants assert that this presumption does not apply to the case at hand where there are triable issues of fact as to (i) when and whether these works were published; (ii) the identity of the author of these works; (iii) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and (iv) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and the circumstances surrounding the assignment and transfers of rights and claims by any and all persons, in connection with any of the various works at issue, including the circumstances surrounding L. Ron Hubbard's purported assignment and subsequent testamentary disposition of the works at issue. Further discovery of such facts is relevant to Defendants: showing that BPI has not met its burden of proving that it has valid copyrights and, thus, that BPI cannot maintain a claim for copyright infringement against Defendants. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 831 (10th. Cir. 1993). 1. Defendants Are Entitled To Further Discover When And Whether The Works At Issue Were Published. 27. In order for the statutory presumption of validity to adhere, a work must be registered within five years of its initial publication. 17 U.S.C. §410(c). Several of the copyright certificates of registrations which BPI submits with its Motion clearly demonstrate that these work's were published much more than five years before, and often were published decades before, their belated registration. Insofar as them remaining registrations are concerned, however, these registrations purport to have been published within this five year period of limitations. As a result, by further inquiring into the dates of publication stated in each such registration, Defendants are likely to establish that such dates are, in fact, false, thereby invalidating BPI's copyrights in these works. See generally, Young Decl. / 28. Although Defendants have requested and BPI has promised on several occasions to provide Defendants with information detailing where and when each such work was published, BPI has failed to do so to date. In connection with this inquiry, Defendants intend to depose, among others, David Miscavige. (Berry Decl., 5(a)). 2. Defendants Are Entitled To Further Discover The Identify Of The Author(s) Of The Various Works At Issue. 29. In the case at hand, credible evidence suggests that some or all of the works at issue were not authored by L. Ron Hubbard, as avowed by BPI in its Motion, but were, in fact, authored by such other individuals as David Mayo and Gerald Armstrong. For example, Vicki J. Aznaran, a former president of the Religious Technology Center ("RTC") testified in another matter that RTC made a practice of claiming that materials it submitted to the Copyright Office for registration were authored by L. Ron Hubbard when, in fact, RTC knew that those materials were authored by someone else. / Moreover, former Scientology executive Laurel Sullivan has testified that "the signature [of L. Ron Hubbard] has been written by individuals since 1968." Berry Decl., Exhibit 88. Since "copyright in a work ... vests initially in the author or authors of the work," 17 U.S.C. §201(a), whether L. Ron Hubbard actually authored the "1900" works at issue is again directly relevant to the validity of the copyrights in these works. This is because Mr. Hubbard would have had to have owned the works at issue in order for any assignment by Mr. Hubbard or his estate to RTC to be valid as to those works. Consequently, if Mr. Hubbard's assignment to RTC is invalid, then RTC's subsequent assignment of these works to BPI is also invalid. Thus, BPI would have no rights in and to the works at issue and no standing to bring BPI's present Motion. 30. F.A.C.T.Net demanded production from BPI of all documents related to David Mayo's allegations that he is the author of certain works that BPI contends were authored by L. Ron Hubbard. In Plaintiff's Response to Defendant F.A.C.T.Net's First Request for Production of Documents, BPI objected to the relevance of the request and offered to produce instead an opinion in an unspecified case concerning Mayo's claims, but otherwise failed to comply with the request. Berry Decl, Exhibit 90, Requests 5, 6, 7, 8, 11. 31. F.A.C.T.Net also demanded the production of all documents related to the litigation in England involving Ron Lawley and works in which RTC and BPI purports to own or hold rights. Again, in the same discovery response, BPI objected to the request on the basis of relevance and has failed to produce the documents. 32. In connection with this inquiry, Defendants intend to depose, among others, David Miscavige, Pat Broeker and Mary Sue Hubbard. (Berry Decl., 5(a), (d) and (f)). 3. Defendants Are Entitled To Further Discover The Circumstances And Procedures Surrounding The Purported Copyrighting Of Any Of The Various Works At Issue. 33. In reviewing the copyright certificates of registration BPI attached to its Motion, it has become apparent that the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue are suspect. Indeed nearly all of the certificates were filled out many years after the purported date of creation of the works. As such, Defendants are of the belief that these certificates were likely filled out by individuals who had no personal knowledge of the information contained in the certificates. Defendants should be permitted to further discover whether Defendants' hypothesis is, in fact, correct. This is because on the certificate of copyright registration itself, the individual filling out the certificate must certify at the bottom of the certificate that the statements made by him or her are true to the best of his or her knowledge. This implies that a person must have at least some personal knowledge of the facts contained in the certificate. Thus, any certificate which was executed by an individual without personal knowledge of the facts contained therein is invalid. 34. Defendants received these copyright certificates of registration for the first time when BPI filed its motion. Given the voluminous nature of the registrations, totalling 1900 in all, Defendants need more time to further discover into this issue. 35. In connection with this inquiry, Defendants intend to depose, among others, David Miscavige, Norman Starkey, Mary Sue Hubbard and Patricia Brice. (Berry Dec., 5(a), (b), (c) and (f)). 4. Defendants Are Entitled To Further Discover The Circumstances Surrounding That Assignment And Transfers Of Rights And Claims In Connection With Any Of The Various Works At Issue. 36. Even assuming, arguendo, that the works at issue were properly published, authored and copyrighted by L. Ron Hubbard, there is still evidence to suggest that the circumstances surrounding the assignment and transfers of rights and claims by any and all persons, in connection with any of the various works in issue were erroneous at best and criminal at worst. With respect to L. Ron Hubbard's initial assignments, this is because at the time Mr. Hubbard's signature on the assignment document was notarized by David Miscavige, Mr. Hubbard was a wanted fugitive, under a Federal indictment. Mr. Miscavige, by virtue of his position and affiliation with Mr. Hubbard, likely knew or had reason to know that Mr. Hubbard was a wanted fugitive. 37. In the State of California, as in all other states, if a notary public has prior, present or percipient knowledge that the person whose signature they are notarizing is a wanted fugitive under Federal law, the notary is duty bound to report such fugitive to authorities and not to notarize the signature of such fugitive. Thus, if borne out by further discovery, such information would presumably establish that Mr. Hubbard's assignment of copyrights to RTC is illegal, as it was improperly notarized. Consequently, any subsequent assignment by RTC to BPI of such copyrights would also be invalid, thereby precluding BPI's Motion against Defendants. 38. Moreover, on August 9, 1988, the former President of Religious Technology Center, Vicki Aznaran, executed a declaration stating that a purported affidavit of L. Ron Hubbard had been actually signed, dated and purportedly notarized by David Miscavige who did so contrary to applicable law. Berry Decl. Exhibit 89, 17. In addition, Vicki Aznaran has testified that David Miscavige could not have properly notarized any of the pertinent purported signatures of L. Ron Hubbard. Berry Decl., Ex. 94, p. 229:6-230:16. 39. Most importantly, the circumstances surrounding Mr. Hubbard's death are of critical importance to the validity of the relevant purported assignments and testamentary dispositions herein. The accompanying declaration of Questioned Document Examiner Ms. Patricia Fisher raises the terrible specter that various of the signatures of L. Ron Hubbard are actually forgeries. Filed under seal herewith is a copy of the Ex Parte Petition for Stay in Proceedings [in the L. Ron Hubbard Estate], etc., Supporting Declaration of Graham E. Berry and Exhibits. The Court is respectfully referred to pages 12 to 22 therein and Exhibit C thereto. Exhibit 71 to the Berry Declaration dated August 14, 1997 completes the analysis regarding these highly suspect events, circumstances and documents. Defendants must be permitted to investigate the authenticity, etc. of L. Ron Hubbard's purported January 23, 1986 will, when he had suffered a crippling stroke, was under the influence of the psychiatric drug Vistaril and had a "clinical history which supported a possible neurological problem." / Thus, L. Ron Hubbard's cognitive capacity, and therefore the validity of the testamentary dispositions, is seriously in issue here. See also, concurrently filed declaration of Ms. Patricia Fisher. The circumstances of L. Ron Hubbard's death are even more suspicious when one considers L. Ron Hubbard's purported written statement, on January 20, 1986, after his crippling stroke, that an autopsy would "violate [his] religious convictions." Berry Ex Parte Decl., Exhibit 1, p. 0013. Allegedly, this was a bogus assertion. Wollersheim Decl., 2. AS if all this as not enough to create suspicion, Mr. Hubbard's attorney expedited the "cremation of Mr. Hubbard's remains." Berry Ex Parte Decl., Exhibit 1, p. 0011. Plaintiffs did not want their leader lying "in state" and subject to official examinations. 40. F.A.C.T.Net's First Request for Production of Documents propounded upon BPI included a request for original copies of all documents related to the transfer of any copyrights of the published works. The request specifically indicated the need for original documents so that they could be examined by an expert in the authenticity of documents and signatures. BPI failed to produce the documentation, stating that (a) "copies" of the documents had already been produced and (b) the demand was irrelevant. See, BPI's Response to F.A.C.T.Net's First Request for Production of Documents, Exhibit E; Berry Decl., 90. 41. In connection with this inquiry Defendants intend to depose, among others, David Miscavige, Pat Broker, Norman Starkey and Mary Sue Hubbard. (Berry Dec]., 5(a), (b), (c) and (f)). B. Defendants Are Entitled To Further Discover Information Pertaining To BPI's Previous Release Of Defendants From The Conduct Alleged In BPI's Motion. 42. In settlement of a previous action entitled Church of Scientology v. Steven Fishman and Uwe Geertz, United States District Court, Central District of California, Case No. CV 91-6426 HLH (Tx) (the "Previous Action"), the Church of Scientology International ("CSI") signed a very broad general release which arguably bars them altogether from suing Defendants for the claims alleged in the present action. Significantly, the release runs to all "agents" of Lewis, D'Amato, Brisbois & Bisgaard ("LDB&B"), the law firm which represented the Defendants in the Previous Action. 43. It should be emphasized that in this Previous Action, Defendants were, in fact, paid research and consultation agents to LDB&B. Indeed, to assist with Defendants' research in the Previous Action. LDB&B sent Defendants three CD's and approximately 60,000 pages of hard copy material. Notably, all purported instances of infringement that are alleged by BPI in the current action relate either directly or indirectly to the research Defendants performed for LDB&B in the Previous Action. Berry Decl., Exhibit 96. Because the release in the Previous Action may very well bar BPI's claims against Defendants in the instant action, Defendants should be allowed to further discover information pertaining to this release including, inter alia, the circumstances surrounding the execution of the release, the enforceability of the release and its scope, and the content of the agreement between LDB&B and CSI. 44. In connection with this inquiry, Defendants wish to depose, among others, Robert F. Lewis, Esq., and Janet Lubert, Esq. (Berry Decl., 5(a)). C. Defendants Are Entitled To Further Discover The Actual Number Of Works At Issue. 45. BPI maintains in its Motion that Defendants have purportedly infringed the copyrights in "1900" Defendants, however, have reason to believe that BPI has purposefully and with the intention of deceiving the Court grossly inflated the amount of works at issue and that the actual number of works is far fewer than "1900". Defendants surmise that BPI has arrived at this "1900" number by separately registering portions of many of the published literary word as independent copyrights. Moreover, Defendants posit that the true number of works at issue in BPI's Motion is thirteen (13), consisting of 13 of 22 volumes comprising two series of Scientology "technology. " 46. Defendants' ability to conclusively demonstrate the precise number of works at issue is directly relevant to the issue of damages in this case since BPI seeks statutory damages which are awarded per work infringed. Thus, in the unlikely event that Defendants are ultimately found liable for any acts of infringement, the difference between 13 works and 1900 works could potentially translate into hundreds of millions of dollars in damages, a result which cannot easily be ignored. 47. Defendants previously demanded information pertaining to the form in which the subject works are published in Request Nos. 14 and 23 of Defendant F.A.C.T.NET, Inc.'s First Set Of Interrogatories which were served on BPI on or about March 1, 1996. Other than the registrations already provided, BPI has refused to produce additional information responsive to these requests. 48. In connection with this inquiry, Defendants intend to depose, among others, David Miscavige, Mary Sue Hubbard, and Patricia Brice. (Berry Decl. 5(a), (c) and (f)). D. Defendants Are Entitled To Further Discover How The Allegedly Infringing Works Were Uploaded On To Defendants' Bulletin Board System. 49. Defendants have reason to feel that the alleged copyright infringements were possibly uploaded onto Defendants' Bulletin Board System by the Church of Scientology themselves. In essence. Defendants believe that Scientology may have "planted" or "set up" Defendants with anonymous computer uploads. At the very least, there is a triable issue of fact here as to whether the claimed infringing documents were "hacked through," "planted" during a break and entry during a Scientology covert operation, or uploaded on to Defendants' Bulletin Board System by an entity and/or individual other than F.A.C.T.Net and without F.A.C.T.Net's knowledge and/or consent. In this regard, it is pertinent to observe that a copy of the three allegedly infringing "media CD's" were also in the custody of Lewis, D'Amato, Brisbois & Bisgaard until the three CD's were stolen some eight months prior to Scientology's search and seizure of FACTNet's electronic library archives. Berry Decl., 9. See generally, Berry Decl., Exhibit 1. V. CONCLUSION 50. For the reasons described above, Defendants respectfully request that the relief requested herein be granted. In addition, Defendants request the court to severely sanction Plaintiffs for their outrageous conduct and discovery obstruction described and evidenced herein.Respectfully submitted,BEEM & MANN, P.C.By_________________________________ Clifford L. Beem, #917 Attorneys for Defendants - F.A.C.T.Net, Inc. and Lawrence Wollersheim One Norwest Center - Suite 3901 1700 Lincoln Street Denver, Colorado 80203 (303) 894-8100MUSICK, PEELER & GARRETT, LLP Graham E. Berry Attorneys for Defendant - F.A.C.T.Net, Inc. One Wilshire Boulevard Twenty-first Floor Los Angeles, California 90017 (213) 629-7700HAGENBAUGH & MURPHY Daniel A. Liepold Attorneys for Defendant Lawrence Wollersheim 701 S. Parker Street, Suite 8200 Orange, California 92668 (714) 835-5406TABLE OF CONTENTSPageI. INTRODUCTION 1II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE 2III. DEFENDANTS HAVE DILIGENTLY PURSUED THE DISCOVERY THEY SEEK 4A. Plaintiffs Have Themselves Ignored The Claimed Discovery Cutoff Date. 4B. Plaintiffs' Discovery Flip-Flop Was Blatant Obstruction 8C. Between April 15, 1997 and May 16, 1997, The Parties Met and Conferred Regarding An Amended Discovery Scheduling Order. 11D. Defendants F.A.C.T.Net And Wollersheim's Ex Parte Petition For A Stay In The L. Ron Hubbard Estate Proceedings Prompted Settlement Negotiations Herein Between May And July 1997 12E. The Parties Were Engaged In Settlement Negotiations From Mid-May 1997 Through Mid-July 1997 13IV. FURTHER DISCOVERY IS VITAL TO DEFENDANTS' OPPOSITION TO BPI'S MOTION 14A. Defendants Are Entitled To Further Discover Facts Demonstrating The Invalidity Of BPI's Copyrights 151. Defendants Are Entitled To Further Discover When And Whether The Works At Issue Were Published 162. Defendants Are Entitled To Further Discover The Identify Of The Author(s) Of The Various Works At Issue 173. Defendants Are Entitled To Further Discover The Circumstances And Procedures Surrounding The Purported Copyrighting Of Any Of The Various Works At Issue 194. Defendants Are Entitled To Further Discover The Circumstances Surrounding That Assignment And Transfers Of Rights And Claims In Connection With Any Of The Various Works At Issue 20B. Defendants Are Entitled To Further Discover Information Pertaining To BPI's Previous Release Of Defendants From The Conduct Alleged In BPI's Motion 23C. Defendants Are Entitled To Further Discover The Actual Number Of Works At Issue 24D. Defendants Are Entitled To Further Discover How The Allegedly Infringing Works Were Uploaded On To Defendants' Bulletin Board System 25V. CONCLUSION 26TABLE OF AUTHORITIESPageCASESCommittee for the First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) 3, 4Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 831 (10th. Cir. 1993) 16Jensen v. Redev. Agency, 998 F.2d 1550 (10th Cir. 1993) 3, 4Miller v. United States Department of Transportation, 710 F.2d 656 (10th Cir. 1983) 3Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828 (10th Cir. 1986) 3, 4RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F. Supp. 1441 (D.N.M. 1996) 4Religious Technology Center v. Dennis Erlich, USDC, NDCA No. C95-20091 9STATUTES17 U.S.C. §201(a) 18 §410(c) 16Federal Rules of Civil Procedure Rule 16 7 Rule 16(a) 6 Rule 56(f) 1, 2, 3, 4IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOCivil Action No. 95-K-2143RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation.Plaintiffsv.F.A.C.T.NET, INC., a Colorado corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual.Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION PURSUANT TO Fed.R.Civ.P. 56(f)
/ One has to wonder whether Plaintiffs' substituted Samuel D. Rosen, Esq. into the case, by pro hac vice admission on March 24, 1997 so that he could make such erroneous assertions with a straight face and ability to claim innocent error as brand new counsel. / These accusations related to Plaintiff's on-going harassment of Factnet's counsel Graham E. Berry and the circumstances surrounding the issuance of the original search and seizure orders herein. / RTC and BPI had vainly sought to avoid the deposition of David Miscavige by dismissing RTC's trade secret claims (related to those formerly asserted herein) and arguing that his deposition was not relevant to BPI's copyright claims. That argument was summarily rejected there. Undeterred, Plaintiffs are now pursuing the same flawed strategy here. Recently, RTC dismissed its trade secret claims herein with the misleading argument that the final judgment and injunction in the related RTC v. Lerma case provided it with adequate trade secret protection. However,the truth of the matter is that the Lerma court summarily dismissed RTC's trade secret claims very early in that case and the injunction extends only to the published works purportedly owned by BPI. / Also, the immediately preceding Ex Parte Petition for Stay in Proceedings, etc., Supporting Declaration of Graham E. Berry and Exhibits, concurrently filed herein under deal pursuant to letter agreement. In addition, Berry Decl., Exhibit 72, p. 22, 2. / A copy of these documents have been filed concurrently herewith under seal. / Accordingly, pp. 7-13 herein indicate that every time defendants were about to obtain an order as to the deposition of David Miscavige, plaintiffs engaged in another delaying tactic. Indeed, plaintiffs have a long history of discovery abuse. See generally, Declaration of Hon. James. M. Ideman, U.S.D.C., C.D., Ca. Berry Decl., Ex. 91. / The original executed copy of the Young Decl. is already part of this Court's file in connection with Defendants' Opposition to BPI's Original Motion for Summary Judgment. / Berry Decl., Exhibit 94, pp. 170:16-18, 170:23-171:15, 173:14-17:10, 229:10-230:20. / Declaration of Graham E. Berry in Support of Ex Parte Petition, etc., Exhibit 1, pp. 1001, 1003, 1005, 0017.(..continued)-29-0530731-iii-0530731
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