From: michael pattinson (karethian@aol.com)
Subject: Reposted classics 33: Graham Berry on the Hubbard Estate.
Newsgroups: alt.religion.scientology
View: (This is the only article in this thread) | Original Format
Date: 2001-07-28 19:50:09 PST

This is from the front lines of the Scientology-Berry-Wallersheim litigation. It give some considerable insights as to how the situation was going at the time. I was a Scientologist at the time, and I had no idea such things were ocurring.

Michael Pattinson.

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From: Tom Klemesrud (tomklem@netcom.com)
Subject: Graham Berry on San Luis Obisbo, etc.
Newsgroups: la.general
(This is the only article in this thread)
Date: 1997/05/10

 

[ Article crossposted from alt.religion.scientology ]
[ Author was Keith Henson ]
[ Posted on Sat, 10 May 1997 17:03:43 GMT ]

'Dis Berry dude, he *rocks*. Keith Henson

(I haven't read this yet, but it looks too good to not share
with a.r.s.)

(213) 629-7854

May 8, 1997

 

VIA FACSIMILE & FIRST CLASS MAIL

Monique Yingling, Esq. Charles Ogle, Esq.
Zuckert, Scoutt & Ogle & Merzon
Rasenberger 770 Morro Bay Blvd.
888 17th St., NW, Ste 600 Morro Bay, California 93442
Washington, D.C. 20006

Re:The Estate of L. Ron Hubbard

Dear Ms. Yingling and Mr. Ogle:

Yesterday, May 7, 1997, we all appeared before Hon.
Barry Hammer, Presiding Judge Probate Division, San Luis Obispo
Superior Court, California. Before the Court were three matters:

1. Factnet and Lawrence Wollersheim's Ex Parte
Petition for a Stay in the L. Ron Hubbard Estate Proceedings, and
Suspension of the Powers of Executor Norman F. Starkey, pending
the filing of:

(a) Petition for Removal of Norman Starkey as
Personal Representative and for Appointment of Neutral
Administrator CTA;

(b) Petition of Surcharge of Norman F. Starkey as
Personal Representative on Grounds of Extrinsic Fraud,
Conversion, Breach of Fiduciary Duty, Concealment,
Misrepresentation and Conspiracy; and

(c) Petition to Determine Title and to Require
Transfer of Personal Property of Estate; and

(d) Motion that the Personal Representative of
the Estate be Instructed to Intervene in RTC v. Factnet
and other Related Cases; and

(e) Petition for Restraining Order to Protect
Hubbard Family Members, and Other Material Witnesses,
from Intimidation and Harassment.

2. Norman F. Starkey's Ex Parte Application to Strike
(a) Factnet, Inc. and Lawrence Wollersheim's Petition for Stay in
Proceedings and Suspension of Powers and Personal Representative;
and (b) Declaration of Graham E. Berry and all Exhibits thereto;

3. Norman F. Starkey's Proposed Order that the Ex
Parte Petition of Factnet and Lawrence Wollersheim be Denied with
Prejudice to Renew and Prejudice to Seek any of the Relief that
Petitioners Stated That They May Seek in the Future; that
Lawrence Wollersheim and Factnet Lack Standing to Seek Any Relief
From the Probate Court on Any Basis; and that No Further
Petitions, Motions or Applications From Factnet, Inc. or Lawrence
Wollersheim, or on their behalf, Would be Entertained by the
Court.

After first hearing the matter at 8:30 a.m., reading
the moving and opposition papers during the morning, and hearing
further argument at 1:30 p.m., the Court ruled as follows:

1. That after all the years in which the Probate
Estate had been dormant, it could not see any exigent
circumstances, or need for urgency, in connection with the relief
being sought by Lawrence Wollersheim and Factnet, Inc.; and

2. That Lawrence Wollersheim and Factnet, Inc. should
file their petitions for substantive relief with the usual 30
days' notice to Mr. Starkey and interested persons in addition to
Lawrence Wollersheim and Factnet, Inc. Furthermore, no Ex Parte
Petitions seeking substantive relief should be filed, and
sanctions would be imposed if they were; and

3. The Court stated it would deny Norman F. Starkey's
motions to bar Lawrence Wollersheim and Factnet, Inc. from filing
their petitions for substantive relief unless you chose to
request your proposed orders back from the Court, which you did;
and

4. The Court would deny Norman F. Starkey's motion to
strike the various moving papers of Lawrence Wollersheim and
Factnet, Inc. unless you chose to take your proposed orders back,
which you did.

5. Upon further discussion, and after being informed
and of Lawrence Wollersheim and Factnet, Inc.'s arguments as to
standing, and the admissions of counsel for the Estate, in their
opposition papers, the Court recommended a regular petition be
filed.

Accordingly, the purpose of this letter is to advise
Norman F. Starkey, as the Executor and Personal Representative of
the Estate of L. Ron Hubbard that Lawrence Wollersheim is now
finalizing his petitions for substantive relief as set forth in
the Ex Parte Petition for Stay referred to above. In that
regard, in order to provide you with adequate opportunity to
reflect upon the position and predicament of Mr. Starkey, we
advise you of the following:

1. Should Mr. Starkey endeavor to delay, or
complicate, the setting aside of the January 3, 1989 Judgment of
Final Distribution distributing all property of Mr. Hubbard's
estate, including all of his copyrights, to the Trust (and
ultimately the Church of Scientology), by filing receipts and
requesting an order of discharge in the meantime, we will oppose
such a move as an extension of the massive fraud that we alleged
in our moving papers on file with the San Luis Obispo Superior
Court.

2. After years of arguing in different courts, often
under oath, that the Estate of L. Ron Hubbard was "closed" and
immune from investigation or inquiry in any regard, you have now
admitted that it is still open. Indeed, in paragraph 5 of his
Declaration dated May 6, 1997, Norman F. Starkey stated "I have
not yet applied for discharge as Executor, in order to gain
access to government records under the Freedom of Information Act
for purposes of collecting personal information about Mr. Hubbard
for his biography, which information is only available to the
decedent or his personal representative." Furthermore,
paragraph 4 of Mr. Ogle's October 4, 1989 letter to the San Luis
Obispo County Sheriff, requesting the destruction of the
photographs of Mr. Hubbard's dead body, states that "the probate
estate was closed by order of the above-court dated January 3,
1989. However, Mr. Starkey has not been discharged as Executor
and, therefore, still remains as Executor until his discharge."
Thus, it is clear that the Church of Scientology has been
misrepresenting the true state of the Probate Court file for many
years and to a number of different courts. In essence, it
appears that whenever it so suits the Church of Scientology,
Mr. Hubbard's estate is open, and whenever it doesn't suit the
Church of Scientology, Mr. Hubbard's estate is closed. Since you
cannot have it both ways, we are now hoisting you on your own
petard!

3. Your Memorandum of Points and Authorities in
Opposition, dated May 6, 1997, contained an admission of counsel
that Mr. Wollersheim is an "interested person" for Probate Court
purposes. It is true that you argue that he is not an
"interested person" within the meaning of Probate Code SS 48.
However, Probate Code SS 48(a) defines "interested person" to
include a "creditor" of the Estate. Then you go on, at page 8,
footnote 7, to state "Petitioners have had full knowledge of the
facts surrounding the administration of Mr. Hubbard's estate
since at least early 1987 when Wollersheim was a named petitioner
[as a creditor] in a claim rejected by this Court in June of that
year." Then, at page 7, footnote 3, you state that the only
exception allows a final decree of distribution to be set aside
if it has been obtained through "extrinsic fraud" perpetrated by
the Executor." In this regard, the following is pertinent: you
ignore the definition of extrinsic fraud which is defined to
include collateral fraud, material misrepresentation, conversion,
conspiracy, concealment and breach of fiduciary duty. These
grounds will be major grounds on which Mr. Wollersheim's
petition, upon regular notice, is presented to the Probate Court.

4. First, and very significantly, your opposition
totally ignored clear case law that includes conflicts of
interest as constituting the classic breach of fiduciary duty.
Indeed, despite all the huffing and puffing, bluffs and bluster,
and threats of intimidation and retaliatory law suits, your
opposition papers, and supporting evidence, totally ignored our
Ex Parte Petition in this regard. Specifically, page 7 of our Ex
Parte Petition contained significant allegations that David
Miscavige and Norman Starkey were trustees of RTC, that Norman
Starkey was a subordinate or "junior" to David Miscavige, the
Chairman of the Board of RTC, and that RTC was one of the
beneficiaries of the Estate of Mr. Hubbard being administered by
Norman Starkey. See also, Petition page 12, paragraph 10.
Tellingly, you submitted not one scintilla of argument or
evidence to controvert this ground for substantive relief that
will be part of Mr. Wollersheim's regularly noticed petition.

5. Not only do your opposition papers concede
Mr. Wollesheim's creditor of the estate status, and ignore the
operative grounds for removal of executor on the basis of
extrinsic fraud/breach of fiduciary duty/conflicts of interest,
but your opposition papers also ignore the Delayed Accrual Rule,
described in Exhibit C, page 41, paragraph 22 of my Declaration
dated May 5, 1997. In essence, the discovery of fraud, many
years after death and close of probate, permits the Court to
exercise equitable powers, to impose a constructive trust, upon
the Estate's assets fraudulently obtained and to order their
distribution to the rightful owners (in this case the Hubbard
family and Mr. Lawrence Wollersheim). In that regard, Mr.
Wollersheim's rights accrue by virtue of his judgment in
Wollersheim I. As you now know, that judgment is being amended
to add the Church of Scientology International as a judgment
creditor. See generally, Berry Declaration Exhibits H and I.
Recently, McShane, President of RTC, further confused the
conflicting and contradictory assignment documents by suddenly
finding a new 1978 assignment of copyrights from Church of
Scientology of California back to L. Ron Hubbard. Thus, because
of the tax inurement and other issues of fraud, surrounding such
a transfer, the equitable tracing rules now apply to judgment
creditor Lawrence Wollersheim to follow those copyrights through
to their current proprietors, to impose a constructive trust upon
those copyrights and to recover all profits arising therefrom in
the interim. By my calculation, on the basis of RTC's tax
returns, as set forth in our Ex Parte Petition, Mr. Wollersheim
would be arguably entitled to at least $600 million.
Furthermore, on this point, your opposition papers ignored our
arguments and authorities (Exhibit C, p. 40, para. 22) that a
judgment of final distribution does not bar further proceedings
(Estate of Sanders).

6. Your opposition papers also totally ignored our
arguments (e.g., Exhibit C, p. 59, paras. 41-42 that Norman F.
Starkey had totally concealed from the Court, and utterly failed
to disclose, the various copyright assignments he had made to
corporation of which he was a trustee and officer, and even to
himself personally, and then compounded the fraud by stating
under oath that "no preliminary distribution had been made." As
we pointed out to the Court, it's own files indicate that this
was a $26.5 million Estate. Of that, the copyrights were valued
by Mr. Starkey at $25 million (but later claimed by RTC to be
producing $30 million per year in royalties). In other words,
96% of the Estate is comprised of copyrights, which were only
included in Mr. Hubbard's will the day before death, and have
been subsequently transferred to corporations of which Mr.
Hubbard's Executor is a trustee and officer, and even to the
estates' executor personally, all without any disclosure to the
Court and therefore constituting concealment from the Court,
extrinsic fraud and justifying the Court to subsequently set
aside the judgment of final distribution (see generally, Berry
Declaration, Exhibit C, p. 42, para. 23).

The clear and convincing fraud herein is further
aggravated, for the purposes of punitive damage claims, by the
fact that Norman Starkey and his RTC and BPI, are now suing Mr.
Wollersheim for alleged copyright breaches in connection with
copyrights which are, in reality, subject to attachment by Mr.
Wollersheim as a judgment creditor of the Church of Scientology
of California and the Church of Scientology International (and
other Scientology corporate entities), and using the income
derived from those copyrights to fund the litigation against
judgment creditor Lawrence Wollersheim. In that regard, we refer
to Exhibits H and J of the Berry Declaration, and the recent
McShane Declaration evidencing the fraudulent conveyance of the
copyrights from the Church of Scientology California back to L.
Ron Hubbard in 1978.

Also, in this connection, we noted to the Court, that
in addition to the criminal history of Mr. Starkey's organization
as set forth on page 29 of the Petition, RTC's own past president
Vicki Azneran was quoted in Exhibit W, page 325 (Time Magazine
article May 6, 1991 - "Scientology, Thriving Cult of Greed and
Power") that the Church of Scientology "is a criminal
organization, day in and day out. It makes Jim and Tammy Bakker
look like kindergarten." In addition, that your own former
counsel of record in these very same probate proceedings had
testified, in subsequent proceedings, that he had been asked to
steal court records, blackmail opposing counsel and that he had
been subjected to the same intimidation and harassment that we
were seeking to prevent by a restraining order. Indeed, Mr.
Yanny was also quoted in Exhibit W, at page 330, as saying that
"the Church [which includes Mr. Starkey] has so subverted justice
and the judicial system that it should be barred from seeking
equity in any court." That testimony will also be provided to
the Probate Court as part of our request for the exercise of the
Court's equitable jurisdiction as previously indicated.

7. Your opposition papers also claimed that "the San
Luis Obispo County Coroner conducted a thorough investigation
shortly after Mr. Hubbard's death and made a specific finding
that there was no evidence whatsoever of foul play." Moreover,
paragraph 8 of Mr. Starkey's declaration quoted a letter as
saying "the toxicology studies showed no findings of drugs or
alcohol." In this regard, we refer you generally to our Ex Parte
Petition, pages 20-21, para. 28.

a. The Coroner's investigation was completed in
less than one day, and in a mere matter of hours.

b. The Coroner's own report, Exhibit A, page 5,
states that the Coroner terminated his investigation when David
Miscavige and Dr. Denk arrived and showed him the 1982 and 1986
wills then convinced the Coroner that there was no material
difference between the two wills. What David Miscavige and
Dr. Denk concealed from the Coroner was the following:

(1) There was no disclosure of the change of
executor less than one day before death.

(2) There was no disclosure of the change in
provisions regarding Mary Sue Hubbard and the last minute
abrogation of her community property interests in a $26.5 million
estate after 34 years of marriage (see generally, Berry
Declaration, Exhibit C, p. 57, para. 36-40).

(3) There was no disclosure of the last minute
change in the 1986 will regarding the copyrights which comprised
95% of the Estate.

(4) There was no disclosure of the fact that a
mere two weeks from the date of death, Mr. Hubbard's constant
medical attention had been withdrawn, when David Miscavige and
others took Dr. Denk on a gambling trip to Reno, Nevada.

(5) There was no disclosure of the last will's
last minute inclusion of a new provisions allegedly anointing
David Miscavige, the architect of the will and circumstances
surrounding death, as a trusted "servant and friend." Indeed,
had Mr. Hubbard's cognitive powers not been so obviously impaired
by his crippling stroke and faintly scrawled signature, he might
have said "and you too Brutus."

(6) Indeed, we observed that you, Ms. Yingling,
practicing in Washington, D.C., appeared at this hearing in San
Luis Obispo County Court, California. Clearly David Miscavige
was handling Mr. Hubbard's death. Clearly he is handling the
current litigation. You frequently appear as Mr. David
Miscavige's personal counsel, and as counsel for the Scientology
Organization, and are said to be one of Mr. Miscavige's most
trusted advisors along with Mr. Feffer of the Washington white
collar criminal defense law firm of Williams and Connoley.

8. Your opposition papers also stated that none of
the Hubbard heirs had ever complained about anything that had
occurred. Because of the circumstances of their life, as set
forth in our Ex Parte Petition, this is an inherently suspect
statement by Mr. Starkey. No waiver of community property rights
has ever been filed on behalf of Mary Sue Hubbard and no
indication that she received truly independent legal counsel at
the relevant time. This omission is compounded by the pertinent
contents of Mr. Small's letter which you attached as Exhibit 1.

"As I am confident you will show at the hearing,
Mr. Hubbard's statutory successors (widow,
children) have assigned their renewal rights to
Mr. Starkey and his successors, and these renewal
rights have been exercised by Mr. Starkey pursuant
to the assignments, so that the renewed copyrights
are owned by CST as successor to Mr. Starkey. I
understand that Mr. Starkey purchased these rights
for valuable consideration paid to the statutory
successors, and further, to the best of my
knowledge, that none of them has questioned the
assignments in any way. In my opinion, the
purchase of these rights by Mr. Starkey was in
accordance with standard practice in this field
and was completely proper and effective to secure
both the contingent renewal rights and the renewed
copyrights for Mr. Starkey's successors."

9. This startling admission by Mr. Small is alone
grounds to grant the relief we will seek by way of regularly
noticed petition. In circumstances suggesting coercion, Mr.
Small has stated that Mr. Hubbard's heirs assigned their renewal
rights to David Miscavige's organization despite Mr. Starkey's
multiple and non-waivable conflicts of interest as a subordinate
to David Miscavige, being a member of the Scientology Control
Group and a beneficiary of the Estate (even ignoring the
copyrights that have subsequently been personally assigned by Mr.
Starkey to himself). Contrary to your other arguments in your
opposition papers, Mr. Small's startling statement is an
admission of counsel that the copyrights were the property of L.
Ron Hubbard at the time of death, that the Hubbard Family did
have renewal rights in those copyrights, that Mary Sue Hubbard
did have community property interests in the estate assets, all
contrary to Norman Starkey's statements under oath that there
were no community property interests, that the entire estate
belonged to L. Ron Hubbard, and subsequent statements that the
copyrights had passed by way of pretestamentary assignment. If
this were not enough, there is also no evidence on the Court file
of any of this and no evidence of any of these "heirs" receiving
truly independent legal counsel at the relevant time.

10. Exhibit 3, like paragraph 8 of Mr. Starkey's
letter, states "toxicology studies were performed and the
toxicology results were negative findings for any drug and/or
alcohol content." However, the Coroner's report, Berry
Declaration Exhibit A, and the attached "Toxicology Report" found
traces of the psychiatric drug Vistaril in Mr. Hubbard's blood
stream and his own doctor, Gene Denk, stated to the Coroner that
he had prescribed and administered a number of drugs to Mr.
Hubbard which included Vistaril (a psychiatric drug usually
administered in combination with other hypnotic, psychotic and
sedating narcotics and restricted drugs) and that Mr. Hubbard
also had a "long history of chronic pancreatitis" which is
primarily caused by alcoholism. For your convenience, we refer
you to page 17 of the attached Coroner's Report.

11. Exhibit 4 to the May 6, 1997 declaration of Norman
Starkey is another self-serving letter dated May 6, 1997 from
Todd Blakely, Esq. to Charles E. Ogle, Esq. This letter is
erroneous for the following reasons:

a. The ownership of the copyrights in issue were
never raised or adjudicated, and the trade secret claims were
dismissed, in the Lerma case.

b. The "Virginia Injunction" expressly states
that it does not extend to the Denver case.

c. In the Denver case, the preliminary
injunction as to willful infringement was denied.

d. The Vien case is clearly distinguishable
because Edith Vien was in economic competition with the Church
and the trade it allegedly conducts with the purported secrets.

e. The minor sanctions imposed upon me by the
Denver Court was for overly protecting a former Scientologist in
deposition and you failed to mention that I had never been
sanctioned before despite numerous requests by the Church of
Scientology which total many hundreds of thousands of dollars.
Furthermore, the Church of Scientology is many million dollars
ahead of me in sanctions awards against it!

f. The Coroner's subpoena was only quashed
because discovery was closed at that time.

g. At the same hearing, in anticipation of
receiving a motion to amend the Scheduling Order and reopen
discovery, the Magistrate Judge scheduled a status conference
approximately every six weeks to deal with "discovery issues."

h. Plaintiff's counsel in the Denver case was
meeting with me today, regarding a motion to amend the Scheduling
Order and reopen discovery.

i. The copyright ownership issues were squarely
before that court, and numerous other courts, such as the three
San Jose cases and other cases throughout the world.

(1) Only through a separate petition to
determine title, by the responsible Probate Court, can the
dispositive ownership issue be determined, and the copyright
holders "standing" to bring infringement laws suits around the
world be resolved. Indeed, it is part of the Church of
Scientology's abuse of the court system to oppose the relief that
we will be seeking before the Probate Court, to conceal the
relevant ownership evidence, and to force dozens of litigants
throughout the world to simply address these issues, in dozens of
different law suits.

12. Exhibit 5 to Norman Starkey's May 6, 1997
declaration was a letter dated May 6, 1997 from Earle C. Cooley,
Esq. to myself, which I had not seen before. This letter is a
perfect example of an attempt to obstruct justice through the
harassment and intimidation of opposing counsel and parties by
threatening them with baseless claims for defamation. In
California, there is a codified litigation privilege set forth in
Civil Code SS 47. It is very expansive. It extends to papers on
the court file, letters written in furtherance of the litigation,
counsel's supplying pleadings concerning the litigation to the
press, and all manner of other things which might normally be
subject to a claim for libel or slander. For Mr. Cooley's
information, the Ex Parte Petition, etc. was on the San Luis
Obispo court file at approximately 12 noon, May 6, 1997 and
remains thereon despite your clients' attempts to have it
removed. Furthermore, in all the circumstances, and according to
applicable law, any such threatened law suit by Mr. Cooley would
be subject to a subsequent complaint for malicious prosecution,
sanctions and would attract a significant cross-complaint from in
connection with all that has gone on against me at the hands of
your client and those of its attorneys who have conspired with
it. Furthermore, the matters and statements of which Mr. Cooley
wrongfully claim are not subject to privilege, would merit
discovery into the various matters set forth in our Ex Parte
Petition in connection with the circumstances and conduct
surrounding the death of L. Ron Hubbard. We would welcome such
an investigation of David Miscavige, the Church of Scientology
and all others who were involved with what went down at the ranch
at Creston, both before, during and after Mr. Hubbard's death.

Finally, I remind you of something else that I advised
the Court. Something is very wrong when approximately 12 people
turn up for a simple ex parte petition. Especially, when these
people include senior church executives, a lawyer who flew in
from Washington, D.C., a lawyer who flew in from Denver,
Colorado, and expend such obvious effort and expense in trying to
stop proceedings regarding a dormant estate, which they claim was
properly administered, and then to request the Court that it
strike the ex parte moving papers and prevent Mr. Wollersheim and
Factnet, Inc. from proceeding with their request for substantive
relief by way of regularly noticed motion. Since we are not
talking of a $5,000 fraud, but instead a $450-to $600 million
fraud, such opposition by a not-for-profit religious corporation
claiming to include the most ethical people on earth among its
adherents is surprising. If everything is so totally in order,
as you and Mr. Starkey claim it to be, then I would expect you to
welcome a judicial inquiry and investigation into the matters set
forth in our Ex Parte Petition on file with the San Luis Obispo
Superior Court. If all is so perfect and pristine, then why the
sheer and shrill emotional level of your opposition? Why the
intensity of the bluff, bluster, threats of intimidation and
retaliatory law suits such as were rejected in Wollersheim IV on
the basis of California's Anti-Slapp statute. To again quote
William Shakespeare "me thinks that the lady protesth too much."

We are now proceeding with the final touches to our
petitions for substantive relief, as described in our Ex Parte
Petition, etc., filed with San Luis Obispo Superior Court on
May 6, 1997, and we will file it by way of regularly noticed
petition on you as counsel of record for Mr. Starkey, and upon
all other persons who appear to be "interested persons" as
defined by Probate Code SS 48. In that regard, we suggest that
you counsel your client not to engage in any conduct that could
be construed as constituting the obstruction of justice through
the intimidation and harassment of "interested persons" and
witnesses.

Very truly yours,

 

Graham E. Berry
for MUSICK, PEELER & GARRETT LLP

GEB:mab
Enclosure
Facsimile Without Enclosure

cc:
snip
*******************
(213) 629-7854

May 9, 1997

 

VIA FACSIMILE & FIRST CLASS MAIL

Samuel D. Rosen, Esq.
Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022-4697

Re:RTC v. Factnet, Inc., et al.

Dear Mr. Rosen:

At our "meet and confer" conference yesterday, you and
Kendrick Moxon, Esq. raised certain objections, and threatened
certain proceedings and courses of action, as a result of the
dissemination and publication of documents from the Court's file
in the L. Ron Hubbard Estate matter, and my letters written to
certain of the counsel, in various Scientology related matters in
which I am involved.

Both of you appear to be under the legally erroneous
belief that California Civil Code SS 47.2 is not applicable to
Scientology-related litigation. I disagree with you.
Nonetheless, as I told you during our meeting, my letters and
pleadings are provided to my clients in accordance with my
professional obligations. Furthermore, to the extent they may
have been provided to others who have sought my professional
advice, and who are similarly situated, and arguably covered by
joint defense privileges, they have been provided in reliance
upon those various authorities, particularly from the products
liability area, encouraging the sharing of litigation and
discovery materials among litigants (and potential litigants) in
different cases for public policy purposes.

Your arguments, intimidation and threats lack any basis
in fact or law. However, to put your minds at rest, I have
written to my clients, and prospective clients (who are also
covered by the attorney/client privilege), and advised them that
any documents I had provided them have been provided in the
course of my professional obligations and not provided for the
purpose of either further dissemination or publication. I hope
this clarifies my position and practice.

In addition, and in relation to the motion we expect we
will have to bring to amend the Scheduling Order and compel
depositions in the Factnet case in Denver, you suggested that any
of the documents on file with the Court in San Luis Obispo,
should be filed with the Court in Denver under seal. I said I
would do so and I now confirm that statement in writing.
However, having done so, I stress that I believe that there would
be nothing objectionable to filing documents from the publicly
available state court file in San Luis Obispo on the publicly
available federal court file in Denver. In addition, my gracious
and conciliatory concession to you in this regard should not be
construed, in any manner, as an indication that I will similarly
agree to make any future filings under seal, whether they concern
the RTC v. Factnet litigation, the San Luis Obispo litigation,
the threatened German litigation, or any of the other Scientology
related cases in which I am either involved now, have been
requested to appear in, or may become involved with in the
future.

In conclusion, I have advised you in the past that your
clients' private investigators and employees have been conducting
an intensive investigation of me, which Scientology calls a
"noisy investigation" (see attached) and have been disseminating
what Scientology calls "dead agent pacs" (packages of perjured
and defamatory materials) to my friends, clients, opposing
counsel and others, both in person, by dropping them off on their
doorstep and by disseminating them in publications and upon the
Internet. In the spirit of conciliation that I have demonstrated
above, I request that you suggest your client engage in a similar
gesture and cease this outrageous and tortious conduct, that has
been going on for at least four years in an effort, according to
Scientology's Fair Game Policy, to destroy me (see attached).

Very truly yours,

 

Graham E. Berry
for MUSICK, PEELER & GARRETT LLP

GEB:mab
cc:
snip
********************
(213) 629-7854

May 9, 1997

 

VIA FACSIMILE & FIRST CLASS MAIL

Samuel D. Rosen, Esq.
Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022-4697

Kendrick L. Moxon, Esq.
Bowles & Moxon
6255 Sunset Boulevard, Suite 2000
Los Angeles, California 90028

Re:RTC, et al, v. Factnet, Inc.

Gentlemen:

Reference is made to the "meet and confer" that you
engaged in at our offices on May 8, 1997 in connection with,
among other things, our proposed motion to amend the Scheduling
Order to permit the reopening of discovery. At that "meet and
confer" we note that you threatened me with Rule 11 sanctions on
eleven (11) occasions, Dan Leipold with Rule 11 sanctions on two
(2) occasions, me with defamation proceedings on two (2)
occasions and me with disbarment on one occasion. You even hung
the telephone up on Dan Leipold and he had to call back.

As we have previously explained to you, an amendment to
the Scheduling Order to reopen discovery appeared to be
anticipated by the Court when it scheduled a series of status
conferences, every six weeks throughout the remainder of the
year, for the express purpose of dealing with discovery issues.

We have provided you with hundreds of pages of legal
analysis, factual analysis, and other matters pertinent to
F.R.C.P. Rule 26(b), why the deponents we seek, including David
Miscavige, should be immediately produced for deposition. On May
20, 1997, Indeed, Mr. Miscavige has been ordered into immediate
deposition, despite RTC seeking to dismiss its related claims, in
three cases which were argued by Helena Kobrin, Esq. to be
related cases for the purpose of obtaining the search and seizure
orders that initiated this litigation.

We went through some of these reasons at our "meet and
confer" on May 8, 1997 and you took an amazing and unique
position. That position was, in essence, that if we provided you
with a list of subjects we wished to inquire into, you would
consider producing witnesses for each subject area. We responded
by advising you that we would provide a list of subject matters
in connection with the resumption of the depositions of the
persons most knowledgeable for RTC and BPI. Otherwise, your
proposal was ridiculous.

However, we did agree that we would provide you with a
list of the deponents we wish to immediately depose during
reopened discovery, and reasons as to why their depositions were
appropriate (within the meaning of FRCiv.P. Rule 26(b). We did
however advise you that we did not intend to reinvent the wheel.
Accordingly, our FRCiv.P. Rule 26(b) reasoning would liberally
refer you to the relevant portions of documents we had already
provided you in this connection.

As you also have been advised, I am commencing an 8-10
day (perhaps longer) trial in Los Angeles Superior Court
commencing May 12, 1997. Amazingly, Mr. Moxon said he did not
trust me and that he did not believe me. Be that as it may, I
have substituted into this case within a week of trial and thus
have a major learning curve and task ahead of me. Accordingly,
it is highly likely that the analysis we have agreed to provide
to you may not be prepared until after I complete that trial, and
if in time, my requested appearance at David Miscavige's
deposition on May 20, 1997 in the related Erlich, Henson and Ward
cases pending before Judge Whyte in San Jose. If I can do so in
the meantime, I will. Otherwise, we are looking at May 30, 1997
as a reasonable response date for the document we have agreed to
provide you in the face of your continuing obstruction of any
right of defendants to take further discovery in this matter.

In that connection, we attach copies of the following
documents. They demonstrate that your client has been taking a
less than candid and even handed approach to these matters.

1. A deposition subpoena duces tecum that you served
on me for my deposition on October 16, 1996, long after you claim
that we are barred from initialing any new discovery by the
discovery cut-off date in the Scheduling Order.

2. My December 3, 1996 letter to Todd Blakely
concerning the deposition notice you served on Mr. Young,
confirmed that he had testified at the preliminary injunction
hearing as a percipient witness.

3. Helena Kobrin, Esq.'s December 11, 1996 letter,
electing to depose him as a percipient witness first and later as
an expert witness. Again, she did this despite the Court's
Scheduling Order which you have been hiding behind in connection
with your own witnesses.

The conclusion is an obvious one.

Very truly yours,

 

Graham E. Berry
for MUSICK, PEELER & GARRETT LLP

GEB:mab
Enclosures

cc:
snip
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(213) 629-7854

May 9, 1997

 

VIA FACSIMILE & FIRST CLASS MAIL

Earle C. Cooley, Esq.
COOLEY, MANION, MOORE
& JONES, P.C.
21 Custom House Street
Boston, Massachusetts 02110

Dear Mr. Cooley:

Reference is made to your May 6, 1997 letter which I
first read, on May 7, 1997, as Exhibit 5 to the Declaration of
Norman F. Starkey dated May 6, 1997 and filed in support his
Memorandum of Points and Authorities in Opposition to Ex Parte
Petition for Stay in Proceedings and Suspension of Powers, and
which I received in the mail today. Accordingly, I am left to
surmise whether the letter was written primarily for my benefit
or that of Judge Hammer in San Luis Obispo.

Nonetheless, and contrary to the statement in paragraph
2, page 2 of your letter, an absolute privilege does attach to
whatever statements I have made that you complain of. Such
statements were made in California, in connection with, and in
furtherance to, California litigation. As such, they are
protected publications within the meaning of California Civil
Code SS 47(b).

This law firm, and myself, specialize in cases that
involve the successful application of that section þ often upon
demurrer. As the considerable case law on Section 47(b)
demonstrates, it is a very wide and expansive "safe harbor."
Recently, an appellate court even concluded that it protects an
attorney's provision of a summons and complaint to the media.
Accordingly, in these circumstances, and disregarding any others
that I could at length expound upon, your request for a
retraction is rejected.

Indeed, your commencement of proceedings, and my
consequent cross-complaint against you, other Scientology
attorneys, private investigators and certain Church of
Scientology officials (described in previous correspondence to
those persons, and in declarations), would subject all those
persons named in the Ex Parte Petition as relevant witnesses, to
deposition and other forms of discovery, and to testimony at
trial.

Obviously, the depositions of each of these people,
including David Miscavige, Norman Starkey, Lyman Spurlock, Ray
Mithoff, Mary Sue Hubbard, and the Hubbard heirs and Estate
Creditors such as those who participated in the various 1986
group settlements would be relevant to the issues of truth,
substantial truth, privilege, malice, etc.

I would welcome such an opportunity to use the
discovery process to properly and publicly conduct an
investigation of the circumstances surrounding the handling of
Mr. Hubbard's copyrights, the execution of his various wills, the
events preceding and surrounding his death, and the subsequent
administration of his estate along with the involvement of you
and others therein. At its conclusion, I would then welcome the
opportunity to proceed by way of action for malicious prosecution
and sanctions. Indeed, between the damages on my cross-complaint
against the various Scientology attorneys, and my damages for
malicious prosecution, I could probably retire, live comfortably
for the rest of my life and sail around the world. Believe me,
my various insurances, not to mention others which would provide
me with a defense, provide many times the amount of money it cost
to defend the Fishman Geertz case, and even the Time Magazine
case, and provide me with choice of counsel provisions.
Moreover, by trying to plead me out of Civil Code Section 47(b)
you would be pleading me right into the provision of a defense
under other applicable insurance policies.

Remember, the Church of Scientology (which you would
effectively be putting on trial) has never won a case before a
jury and has never had the courage of "it's own convictions" to
actually go to trial on a defamation cause of action.

Your threatened litigation against me, so obviously on
behalf of the Church of Scientology (and probably funded by it as
well) will produce a delicious irony and Waterloo for it's
leadership. Their zealous application of L. Ron Hubbard's
technology, as it applies to the Fair Game policy and the misuse
of the legal system to harass critics and opposing counsel, will
be the very reason why they themselves are unwillingly thrust
into the judicial arena for deposition and trial testimony on the
very same issues that they are currently trying to avoid, keep
hidden and get sealed. Didn't your mother ever tell you that
"the truth has it's own way of eventually coming out." As I have
just realized, this is such a delicious irony, prospect and
opportunity to finally get the Church's leadership and certain of
its attorneys, Mr. Hubbard's doctors, and the Hubbard family,
into deposition and testify before a jury.

In that regard, it is my opinion that the suicidal
activities of certain cults have become contagious. As I once
wrote to Bert Fields, Esq., (when Tom Cruise threatened to sue me
for defamation in connection with the English and Australian
publication of articles quoting major segments of the Andre
Tabayoyon declaration) "go ahead and sue me. It will be the
worst thing Tom Cruise ever did." Wisely, he chose to let the
matter quickly die instead of keeping the matter before the
public for years, in ultimately unsuccessful and devastating
litigation. Indeed, L. Ron Hubbard himself wrote that one should
never sue in defamation because it puts the Church of
Scientology's own character and reputation in issue. As I have
said, this is such a delicious irony and parody of LRH's Tech.

The final paragraph of your letter, threatening me with
a California State Bar complaint unless I comply with your
demands, is itself a violation of applicable California State Bar
rules. You are probably subject to the jurisdiction of the
California State Bar by virtue of your numerous appearances in
the California courts by way of pro hac vice admission.

Very truly yours,

 

Graham E. Berry
for MUSICK, PEELER & GARRETT LLP

GEB:mab

cc:
snip
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(213) 629-7854

May 9, 1997

VIA FACSIMILE & FIRST CLASS MAIL

Samuel D. Rosen, Esq.
Paul, Hastings, Janofsky &
Walker
399 Park Avenue, 31st Floor
New York, New York 10022-4697 Kendrick L. Moxon, Esq.
Bowles & Moxon
6255 Sunset Boulevard, Suite
2000
Los Angeles, California 90028

Re:RTC, et al. v. Factnet, Inc., et al.

Dear Mr. Rosen and Mr. Moxon:

Reference is made to the "meet and confer" that took
place at our offices on Thursday, May 8, 1997, in connection,
among other things, with your position that none of the items
listed on the privilege log served in response to the R. Vaughn
Young document inspection demand are subject to my attorney work
product privilege as claimed therein. As the relevant privilege
log clearly states, the documents to which I claim attorney work
product privilege are kept in two three-ring binders, under tight
security and are used only by me, and are accessed by no one
else, including those of my Scientology litigation defense team.

In that regard, there are times in litigation when wise
counsel do not pursue otherwise available areas of inquiry for
fear of disturbing that which may be better left uncovered. I
remind you of the old adage "let sleeping dogs lie." However, it
appears that you wish to follow your clients' instructions, to
use L. Ron Hubbard's "technology" by, among other things, using
the litigation discovery process as an intelligence gathering
tool. In this regard, we could supply you with many supporting
Hubbard Communication's Office Policy Letters and Bulletins.
Accordingly, if you wish to follow the "tech," and not exercise
sound litigation discretion, over very damaging issues (regarding
Scientology related alleged murders, suicides and frauds and
other criminal and tortious activity alleged of the Church and
its current leadership) then I will not oppose you. You are
making the choice to, in effect, unseal these binders. Perhaps
your client has had a change of heart and adopted Oliver Wendall
Holmes's dictum that "sunlight is the best disinfectant."

Accordingly, you may inspect the entirety of the two
binders (including my handwritten notes and other matters that
could be culled from them prior to your inspection) provided you
agree in writing that this does not constitute a general waiver
of the attorney work product/client privilege, and you may have
them copied, if you wish, by our copy staff at your expense. In
this regard, a draft letter for your review and execution, if you
so choose

At that point, having been forced by you to give up
documents that I closely guard as claimed attorney work product,
I will consider myself free to also provide copies of those very
same "deposition questioning binders" to any and all counsel and
litigants engaged in proceedings against the Church of
Scientology. I will also consider myself free to quote their
exact contents in the litigation practice guide on "How to handle
litigation against the Church of Scientology" þ which I am
engaged in writing and gathering documents for. In that regard,
I am sure that the Morrison and Foerster attorneys will find
these binders to be of great assistance at the upcoming
deposition of David Miscavige, on May 20, 1997, in litigation
related to the Factnet case, where RTC has already sought to
dismiss its identical claims as here.

In addition, my "two deposition questioning binders"
contain many materials which relate to the matters underlying the
Church of Scientology's ultimately successful effort in having
the Court file temporary sealed in the Church of Scientology
International v. Fishman and Geertz. I recently wrote to Elliot
Abelson, Esq. advising him that Dr. Geertz, Steven Fishman, and
two new German corporate clients, had retained me, and certain
agencies investigating Scientology related alleged deaths had
requested me, to reenter the Fishman and Geertz litigation and to
file a motion to unseal the files. Mr. Abelson has totally
ignored my letter and thus I shall execute a declaration of non-
cooperation regarding my "meet and confer" obligations which I
now deem satisfied. In addition, your insistence on pursuing
discovery of my "deposition questioning binders" (prepared for
and used in the Fishman and Geertz litigation) will be used as a
further argument to Hon. Harry L. Hupp as to why the temporary
sealing order, based on declarations now shown to be perjurious,
should be lifted.

Moreover, my recent review of the voluminous
correspondence files in the Factnet case (for another purpose)
drew my attention to the attached letters from certain of your
co-counsel in the Factnet litigation. The contents of those
letters clearly demonstrate that your clients have totally
mislead the Court in Denver as to what preceded the Vaughn Young
deposition. In that regard, the following facts are apparent
from the face of the attached documents:

1. A deposition subpoena duces tecum that you served
on me for my deposition on October 16, 1996, long after you claim
that we are barred from initialing any new discovery by the
discovery cut-off date in the Scheduling Order.

2. My December 3, 1996 letter to Todd Blakely
concerning the deposition notice you served on Mr. Young,
confirmed that he had testified at the preliminary injunction
hearing as a percipient witness.

3. Helena Kobrin, Esq.'s December 11, 1996 letter,
electing to depose him as a percipient witness first and later as
an expert witness. Again, she did this despite the Court's
Scheduling Order which you have been hiding behind in connection
with your own witnesses.

Finally, allow me to observe that at the May 8, 1997
"meet and confer," which you insisted be face to face, it was
noted that you made: eleven (11) threats to seek Rule 11
sanctions against me; two (2) threats to seek Rule 11 sanctions
against Dan Leipold; two (2) threats to sue me for defamation and
one (1) threat to seek my disbarment. You then hung the
telephone up on Dan Leipold who had to call back to rejoin the
'meet and confer" process.

Very truly yours,

 

Graham E. Berry
for MUSICK, PEELER & GARRETT LLP

GEB:mab
cc:
snip
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[letter to Graham from??]

Graham E. Berry, Esq.
Musick, Peeler & Garrett
One Wilshire Blvd., 21st Floor
Los Angeles, California 90017

Re: RTC v. Factnet, Inc.

Dear Mr. Berry:

Reference is made to your May 9, 1997 letter regarding
Plaintiffs' insistence that no attorney work product covers any
of the documents listed on the relevant privilege log you have
submitted on behalf of Vaughn Young and yourself.

The purpose of this letter is to confirm our
stipulation, that the production of the entirety of the two
three-ring binders in issue (including your handwritten notes and
any other documents which may otherwise be subject to claims of
attorney/client or attorney work product privilege) will not be
argued by Plaintiffs, or any other Church of Scientology related
entity, to constitute a general waiver of any otherwise
applicable or claimed attorney/client or attorney work product
privileges.