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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) 894-8100
MUSICK, 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) 629-7700
HAGENBAUGH & MURPHY Daniel A. Liepold Attorneys for Defendant Lawrence Wollersheim 701 S. Parker Street, Suite 8200 Orange, California 92668 (714) 835-5406
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE 2
III. DEFENDANTS HAVE DILIGENTLY PURSUED THE DISCOVERY THEY SEEK 4
A. Plaintiffs Have Themselves Ignored The Claimed Discovery Cutoff Date. 4
B. Plaintiffs' Discovery Flip-Flop Was Blatant Obstruction 8
C. Between April 15, 1997 and May 16, 1997, The Parties Met and Conferred Regarding An Amended Discovery Scheduling Order. 11
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 12
E. The Parties Were Engaged In Settlement Negotiations From Mid-May 1997 Through Mid-July 1997 13
IV. FURTHER DISCOVERY IS VITAL TO DEFENDANTS' OPPOSITION TO BPI'S MOTION 14
A. Defendants Are Entitled To Further Discover Facts Demonstrating The Invalidity Of BPI's Copyrights 15
1. Defendants Are Entitled To Further Discover When And Whether The Works At Issue Were Published 16
2. Defendants Are Entitled To Further Discover The Identify Of The Author(s) Of The Various Works At Issue 17
3. Defendants Are Entitled To Further Discover The Circumstances And Procedures Surrounding The Purported Copyrighting Of Any Of The Various Works At Issue 19
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 20
B. Defendants Are Entitled To Further Discover Information Pertaining To BPI's Previous Release Of Defendants From The Conduct Alleged In BPI's Motion 23
C. Defendants Are Entitled To Further Discover The Actual Number Of Works At Issue 24
D. Defendants Are Entitled To Further Discover How The Allegedly Infringing Works Were Uploaded On To Defendants' Bulletin Board System 25
V. CONCLUSION 26
TABLE OF AUTHORITIES
Page
CASES
Committee for the First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) 3, 4
Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 831 (10th. Cir. 1993) 16
Jensen v. Redev. Agency, 998 F.2d 1550 (10th Cir. 1993) 3, 4
Miller v. United States Department of Transportation, 710 F.2d 656 (10th Cir. 1983) 3
Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828 (10th Cir. 1986) 3, 4
RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F. Supp. 1441 (D.N.M. 1996) 4
Religious Technology Center v. Dennis Erlich, USDC, NDCA No. C95-20091 9
STATUTES
17 U.S.C. §201(a) 18 §410(c) 16
Federal Rules of Civil Procedure Rule 16 7 Rule 16(a) 6 Rule 56(f) 1, 2, 3, 4
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) _________________________________________________________________ / 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.
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