Kanabay Court Reporters; Serving West Central Florida
Pinellas (727)821-3320 Hillsborough (813)224-9500
Tampa Airport Marriott Deposition Suite (813)224-9500
1
1 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
2 CASE NO. 00-5682-CI-11
3
4
5
DELL LIEBREICH, as Personal
6 Representative of the ESTATE OF
LISA McPHERSON,
7
8 Plaintiff,
9 vs. VOLUME 1
10 CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, JANIS
11 JOHNSON, ALAIN KARTUZINSKI
and DAVID HOUGHTON, D.D.S.,
12
Defendants.
13
_______________________________________/
14
15
16 PROCEEDINGS: Defendants' Omnibus Motion for
Terminating Sanctions and Other Relief.
17
CONTENTS: Argument re: Bill Franks Testimony.
18
DATE: June 12, 2002. Afternoon Session.
19
PLACE: Courtroom B, Judicial Building
20 St. Petersburg, Florida.
21 BEFORE: Honorable Susan F. Schaeffer,
Circuit Judge.
22
REPORTED BY: Lynne J. Ide, RMR.
23 Deputy Official Court Reporter,
Sixth Judicial Circuit of Florida.
24
25
2
1 APPEARANCES:
2
MR. KENNAN G. DANDAR
3 DANDAR & DANDAR
5340 West Kennedy Blvd., Suite 201
4 Tampa, FL 33602
Attorney for Plaintiff.
5
6 MR. LUKE CHARLES LIROT
LUKE CHARLES LIROT, PA
7 112 N East Street, Street, Suite B
Tampa, FL 33602-4108
8 Attorney for Plaintiff
9
MR. LEE FUGATE
10 MR. MORRIS WEINBERG, JR.
ZUCKERMAN, SPAEDER
11 101 E. Kennedy Blvd, Suite 1200
Tampa, FL 33602-5147
12 Attorney for Church of Scientology Flag Service
Organization.
13
14 MR. ERIC M. LIEBERMAN
RABINOWITZ, BOUDIN, STANDARD
15 740 Broadway at Astor Place
New York, NY 10003-9518
16 Attorney for Church of Scientology Flag Service
Organization.
17
18 MR. MICHAEL LEE HERTZBERG
740 Broadway, Fifth Floor
19 New York, New York 10003
Attorney for Church of Scientology Flag Service
20 Organization.
21
22
23
24
25
3
1 MR. WEINBERG: If you give me one second, I
2 need to pull a document out.
3 THE COURT: Okay.
4 MR. WEINBERG: I'm ready when you are.
5 THE COURT: I'm ready.
6 MR. WEINBERG: The next witness apparently is a
7 man named Bill Franks.
8 Bill Franks was an executive in one of the
9 Churches of Scientology who left the Church of
10 Scientology in December of 1981 and has not been
11 back in the Church, or even as a public member of
12 the Church, since December of 1981.
13 He has had no involvement in the inner workings
14 of the Church of Scientology for 21 years or so. He
15 left in December of 1981 before the corporate
16 restructuring that you have heard about took place
17 in the Church of Scientology, which was the
18 restructuring that took place after the problems
19 that occurred, you have heard about the Guardian's
20 Office and all that, the problems in the '70s.
21 That restructuring actually took place shortly
22 after Mr. Franks left the Church of Scientology, so
23 that the corporate structure, particularly RTC,
24 which is the -- the organization that you have heard
25 so much about that Mr. -- Mr. Miscavige is the
4
1 chairman of the board on, didn't even exist at the
2 time that Mr. Franks left the Church of Scientology.
3 CSI, which is the mother church that you have
4 heard about, was actually incorporated three weeks
5 before Mr. Franks left in December of 1981. So
6 we're talking about there were major changes in the
7 corporate structure of the Church of Scientology
8 21 -- since Mr. Franks left 21 years ago.
9 The founder of the religion, L. Ron Hubbard,
10 was still alive at the time that Mr. Franks left
11 and, in fact, lived until, if I'm correct, 1986.
12 I'll be corrected if it was 1985 because I don't
13 remember exactly. But it was four or so years after
14 Mr. Franks left.
15 At the time Mr. Franks left, Mr. Miscavige was
16 21 years old.
17 After Mr. Franks left, there came a period of
18 time for a few years where he was a witness against
19 the Church of Scientology in the early cases that
20 arose out of what had happened in the '70s. There
21 were cases in Florida as I understand it, cases in
22 California and other parts of the country. He was a
23 witness for a few years.
24 And in 1986 he settled -- he never had a
25 lawsuit, but he settled with the Church and entered
5
1 into an agreement that you have heard something
2 about.
3 More importantly, Mr. Franks has absolutely no
4 personal knowledge with regard to any fact that is
5 the subject matter of this proceeding. He clearly
6 has no knowledge of anything that has to do with the
7 disqualification or the misconduct, which is the --
8 what the evidentiary hearing is supposed to be
9 about.
10 If -- if I could hand up to your Honor, on
11 May 23rd, 2002 Mr. Franks sent a three-page letter
12 to Mr. Drescher, who is the -- who -- who was one of
13 the lawyers for the Church in California.
14 THE COURT: Have I seen this letter yet?
15 MR. WEINBERG: I'm not sure you read it. But
16 it's -- but it's important you should read it
17 because you'll see from it, if you take a minute to
18 read it, what I'm talking about.
19 THE COURT: Okay.
20 MR. WEINBERG: All right. So that when we got
21 this letter from -- that Mr. Drescher got from
22 Mr. Franks, it was startling to us that what
23 Mr. Franks was saying is that, A, "I dissociated
24 myself from the church for the last 20-plus years,"
25 and --
6
1 THE COURT: Don't tell me what I just read now.
2 I just read it.
3 MR. WEINBERG: Okay. So that -- so that the
4 only thing Mr. -- Mr. Franks could possibly be
5 called for is to talk about something that had
6 occurred prior to December of 1981 in his
7 affiliation or association with the Church of
8 Scientology.
9 And -- and the only thing that that could be
10 related to is somehow -- somehow have to do with the
11 substantive proof that Mr. Dandar thinks or
12 considers that he might offer if he ever tries this
13 case with regard to the wrongful death count.
14 And that is precisely what this hearing should
15 not be about. And I think you said it the other
16 day: We're not here to try the wrongful death case.
17 To the extent that Mr. Dandar believes that
18 something that is 20 years old would ever be
19 relevant, it's something that should have been
20 disclosed long before this hearing.
21 Mr. Franks appeared on the scene, we'll show
22 you, we just got the notice in April, literally as
23 we were about to go into these proceedings. And if
24 he would have been disclosed earlier, he would have
25 been deposed, like Mr. Armstrong and Mr. --
7
1 Mr. Prince and Mr. Young and all of the other
2 anti-Scientologists.
3 So that if -- if I understand what the Court
4 said, if I understand what the summary judgment
5 process is all about, what should happen is that if
6 Mr. Franks does have something relevant, it ought to
7 be set forth in an affidavit, we should be given the
8 opportunity to depose him. And if, at the end of
9 that process, there is something that ought to be
10 heard by the Court, then the Court can hear it at
11 that point.
12 The first time Mr. Franks' name was ever
13 mentioned, if I could approach you --
14 THE COURT: Well, how do I know what it is he's
15 being called for?
16 MR. WEINBERG: Well, that is sort of --
17 THE COURT: I mean, I think there could be a
18 lot of things that are relevant to this hearing that
19 he might know about that are fairly insignificant
20 but relevant that you all could cross-examine him
21 with five minutes of a break between direct and
22 cross. So I don't know what he's being called for.
23 MR. WEINBERG: That is part of why I'm making
24 this presentation. It is a very unusual situation
25 for a case that is five years old, for the first
8
1 notice -- if I can approach you, I'll give you two
2 more documents.
3 This is the notice of plaintiff's expert on
4 Scientology which is dated April 12, 2002, and then
5 April 24, 2002 is -- where is it?
6 MR. LIEBERMAN: 44.
7 MR. WEINBERG: 44. I didn't bring my glasses
8 up here. So April 24, 2002, this is Mr. Dandar's
9 witness list. Number 44, Bill Franks.
10 THE COURT: All right.
11 MR. WEINBERG: Which meant that prior to
12 April 24 -- or, arguably, April 12, 2002 -- we had
13 never heard the name Bill Franks. So, therefore,
14 Bill Franks wouldn't have been deposed.
15 And, you know, although I can -- I can -- I
16 could predict what Vaughn Young or Jesse Prince or
17 other people would say if questioned here, I have no
18 understanding of what Mr. Franks could say that
19 would be relevant, except I have his letter where he
20 says he doesn't know anything. And I really think
21 that what is going to happen here is that what we're
22 going to have is a -- is a session where Mr. Franks
23 just vents about his experiences dating back 21
24 years about the Church of Scientology. And I don't
25 think this is the proceeding for that.
9
1 That is my -- and, therefore, what I said the
2 other day, I think it's appropriate that Mr. Dandar
3 or Mr. Lirot, whoever it is, make a proffer to the
4 Court exactly what this man is supposed to say so
5 that we have -- we don't have to spend all day
6 tomorrow listening to stuff that your Honor would
7 either deem irrelevant or deem something that should
8 be set forth in an affidavit, we get an opportunity
9 to cross-examine by deposition, like you would
10 normally do in a summary judgment.
11 That is my argument.
12 THE COURT: Okay. Well, I mean --
13 MR. WEINBERG: Oh, actually, I had one
14 further -- I'm sorry, Mr. Lieberman had reminded me
15 of one legal thing.
16 If what Mr. Franks is being offered for -- I
17 guess we don't know until -- what we're told is for
18 some pattern of practice or business practice, that
19 sort of argument.
20 As I understand it, the -- if he were being
21 offered for that, then he wouldn't be offered as an
22 expert. That would be as a fact witness. That is
23 Rule 404 and Rule 406.
24 And as I understand the law in that -- and that
25 may have been -- I was out of the room, that may
10
1 have been what was handed up to you. I'm not sure
2 exactly what was handed up to you by Mr. Fugate or
3 Mr. Lieberman at the end. But as I understand and
4 I'm told by Mr. Lieberman the law is, is that in
5 order to -- in order to establish -- in order for
6 that kind of evidence to be relevant and admissible,
7 the pattern must be precisely related to the
8 circumstances and in a recent time period.
9 So -- and, you know, I guess there is some
10 flexibility as to recent. But under no
11 circumstances would 21 years be recent. So if that
12 is what he's being offered for, legally we believe
13 that it wouldn't be admissible under any
14 circumstances.
15 THE COURT: Well, I don't think anybody knew
16 about Ms. Yingling, yet you got to call her. I
17 don't know whether he has information or not. If he
18 doesn't, make your objection.
19 The deal is this is a hearing. You are trying
20 to get the case dismissed and Dandar thrown off the
21 case. He has a witness he wants to present, and I'm
22 going to let him, whether you have notice of it or
23 not. This is not a trial.
24 MR. WEINBERG: I wanted to make a record of our
25 objections. And I assume that tomorrow -- I don't
11
1 want to interrupt the flow, so to speak, but I
2 wanted -- but I also don't want to waive any
3 objection. I just wanted to make it clear that we
4 don't believe that there would be anything of
5 relevance or anything that could possibly be
6 admissible from somebody that had left that long
7 ago. So I wanted to put that on the record and make
8 that position.
9 And as to Ms. Yingling, we were sort of put in
10 a position to where it seemed appropriate, given
11 what the accusations were by Mr. Dandar, that we
12 would do something that we wouldn't normally do,
13 and --
14 THE COURT: Well, I assume when you say
15 allegations that had been filed were fraudulent and
16 false, that brings rise to somebody bringing a
17 witness in, if they have one, to say that really
18 isn't true.
19 So your objection is noted. It is overruled.
20 MR. WEINBERG: Okay.
21 THE COURT: Is that it for the day?
22 MR. WEINBERG: That was my objection.
23 MR. FUGATE: Your Honor, I did not -- when the
24 Court was making some comments earlier I did not
25 rise so I did not elongate or prolong Ms. Yingling's
12
1 stay on the stand.
2 But as an officer of the Court, you had raised
3 a couple of issues relating to Mr. Howie. And as a
4 colleague of mine, I wanted to let the Court know
5 that -- and if I'm out of order you can certainly
6 tell me so -- that we had discussed Mr. Howie's
7 position of Mr. Minton recanting at the conclusion
8 of his testimony, and that was what I think he
9 understood was going to happen. And --
10 THE COURT: And I, of course, gave him that
11 opportunity. And he said no. I said he certainly
12 could.
13 MR. FUGATE: The only point I'm making to your
14 Honor is I think then it was decided -- and I
15 couldn't tell you, again I say I think, but I
16 couldn't remember whether that was at the end of the
17 day, the period of time, but the decision was to
18 provide an affidavit.
19 And -- but I just wanted to say, as I
20 understood it, he indicated he had a case that said
21 he needed to do that at the conclusion of the
22 testimony. That is what I understood he was doing.
23 And I wanted the Court to be sure and
24 understand that as an officer of the Court, I take
25 myself out of advocate position, I certainly don't
13
1 represent Mr. Minton, but as a colleague of
2 Mr. Howie, I know that was a position that he took.
3 And he was planning --
4 THE COURT: Mr. Howie was sitting right here.
5 You really don't need to advocate for Mr. Howie.
6 I have my own opinion as to Mr. Minton and why
7 it is he didn't come clean in his second or third or
8 fourth affidavit.
9 I offered Mr. Howie the opportunity to do
10 whatever it was he wanted to do when you were done.
11 He declined and said he wanted to do it by
12 affidavit. He has done that.
13 Lawyers make choices. Sometimes clients make
14 lawyers make choices. I have no idea what it is.
15 It is none of my business. I just simply made an
16 observation. I stick to my observation. I have my
17 own opinions as to what is going on.
18 But I surely don't think that I need to hear
19 from you about stuff that is on the record.
20 MR. FUGATE: Have a nice day.
21 THE COURT: Thank you.
22 MR. DANDAR: Judge, Mr. Franks is afraid
23 that -- I mean, he has to leave tomorrow evening.
24 He's afraid he might run out of time. I know it's
25 late. We've been here all day --
14
1 THE COURT: I'll do the same thing with him as
2 I did with Ms. Yingling. I suggest you be done with
3 him by noon, and I suggest all they'll get is the
4 afternoon. It is that simple.
5 MR. DANDAR: All right. I want to remind the
6 Court, and I know you probably will tell me not to,
7 but we have subpoenaed Mr. Franks. Mr. Franks was
8 then contacted by this attorney, Mr. Drescher, who
9 represents Mr. Rinder at CSI and told him -- and
10 sent him a letter saying he better not come because
11 you signed this agreement.
12 THE COURT: Listen, all these things I suspect
13 I will see in some sort of motion from you telling
14 me how the Church has acted inappropriately, that
15 they ought to be dismissed, that they ought to not
16 do this and that and the other thing.
17 That is why everything that I hear in here,
18 that I find unfortunate, is because I suspect I'll
19 be hearing about it again. If I don't, that is
20 fine. If I do, that is fine.
21 MR. DANDAR: I just want to remind the Court
22 and make sure that you do remember this. You told
23 me that you were ordering Mr. Franks to appear to
24 honor his subpoena and that is why he's here and
25 that is what he's going to do tomorrow when we
15
1 start.
2 THE COURT: I did, indeed, say that. And I
3 did, indeed, say that as far as I was concerned,
4 that if he were subpoenaed -- I was not party to any
5 contract that he had signed with the Church of
6 Scientology, and that if he had been subpoenaed to a
7 hearing of mine, I expected him to be here.
8 For whatever that is worth, I have no idea
9 whether that will serve him well or poorly if he is
10 sued. I don't purport to suggest that. I could
11 care less.
12 All I know is you said this man had relevant
13 information. You served him a subpoena. I could
14 care less about some agreement that is -- that --
15 I'm not a party to.
16 So as far as I'm concerned, I expect him to be
17 here. It has been stated by you on a document that
18 he is an expert witness. I would expect, therefore,
19 that anybody from the Church would be very reluctant
20 to be interfering with that.
21 If they have, then I expect I'll see motions
22 why their case ought to be dismissed, or why the
23 answer should be stricken, or why there should be
24 triple damages, or whatever in the world it is. And
25 I'll have to deal with it on the right time.
16
1 Will I have to order them to have no contact
2 with him tonight? No. I hope they know better.
3 MR. DANDAR: I hope they do.
4 THE COURT: If not, I suppose we'll have to
5 litigate that. This is your witness, he has been
6 identified as your witness, it has been told to me
7 in court that there is some thought that in the
8 state of Florida that in a civil case that one side
9 cannot have any contact with the other side's
10 experts.
11 Now, that has been alleged as to problems with
12 Mr. Prince. And I assume that if they make -- they
13 already have -- I assume if it will be told to me
14 again, if he was identified, that this Mr. Drescher
15 had no business contacting him, and I assume that --
16 you know, I just am not going to be a policeman here
17 and tell either side what it is they need to do and
18 what they don't need to do.
19 I expect him to be here tomorrow. And I hope
20 he has some relevant testimony. If he doesn't, why,
21 he'll have an early exit.
22 MR. WEINBERG: Could I inquire one thing?
23 Could I ask Mr. Dandar, is he being called as an
24 expert or a fact witness?
25 THE COURT: He's on the witness list as an
17
1 expert.
2 MR. WEINBERG: For this hearing?
3 MR. DANDAR: He's an expert.
4 MR. WEINBERG: Then I really -- I do find that
5 objectionable because we have not had an opportunity
6 to depose him. I mean, no expert has testified in
7 court without either side being able to depose them
8 in advance.
9 THE COURT: That objection is overruled.
10 MR. WEINBERG: I understand.
11 MR. DANDAR: Judge, he's --
12 THE COURT: We're going to go forward with this
13 hearing. I can't wait around for the types of
14 depositions you-all take. I would be here waiting
15 another two weeks.
16 MR. WEINBERG: I'm not arguing with you. I'm
17 stating my objection.
18 THE COURT: I understand.
19 MR. DANDAR: He's an expert in the same fashion
20 as Mr. Prince and Mr. Young are experts. They are
21 former Scientologists, 20-plus years, and they have
22 a vast amount of knowledge on policies and customs
23 and techniques.
24 THE COURT: And I expect that I'll hear from
25 Mr. -- from Mr. -- why am I having trouble with your
18
1 name? I had trouble with that before.
2 MR. LIEBERMAN: Me?
3 THE COURT: Yes.
4 MR. LIEBERMAN: Lieberman.
5 THE COURT: That I should not even listen to
6 them. And I'll tell Mr. Lieberman when he makes
7 that objection, I'll hear from him and then I'll
8 hear arguments on the law.
9 MR. DANDAR: All right.
10 THE COURT: I just expect they'll be jumping up
11 and down tomorrow.
12 MR. WEINBERG: It is just confusing because we
13 were told he's being called as a fact witness,
14 although on the -- for the trial on the witness list
15 he was listed as an expert. But we were told by
16 Mr. Dandar for this hearing he was being called as a
17 fact witness. So I'm just confused.
18 THE COURT: Okay. He -- I would have assumed
19 that he knows something that Mr. Dandar is planning
20 on calling him for regarding his ability to make the
21 allegation that Mr. -- I mean, I don't know a thing
22 about this guy. I never met him in my life. And I
23 could tell you just about what he'll say. I mean --
24 MR. WEINBERG: I --
25 THE COURT: I could tell you what he'll say.
19
1 And, you know, frankly, I could cross-examine, I
2 could put him on, and I have never deposed him, I
3 never met him. You have a lot more information than
4 I do. But I could almost -- I could write it down
5 if you want.
6 MR. WEINBERG: No.
7 THE COURT: And I'll show you after he's done
8 what it is --
9 MR. WEINBERG: No, I think I have a sense of
10 what he will --
11 THE COURT: I think you have a sense. I think
12 we'll hear something about that area that deals with
13 whether Miscavige -- or Mr. Miscavige would have
14 known about Ms. McPherson, and something about
15 whether or not he would have ordered this
16 unfortunate event to occur.
17 MR. WEINBERG: I mean, that is a "would have"
18 for somebody that was there 21 years ago. And that
19 is worse than Jesse Prince's affidavit, so that is
20 what I was really objecting about.
21 But I recognize what the cross-examination is.
22 I don't understand why we're really going through
23 that, given that.
24 THE COURT: Well, we have gone through this
25 because you have filed the motion to dismiss the
20
1 case. If you want to withdraw it --
2 MR. WEINBERG: No, we don't want to withdraw
3 it.
4 THE COURT: Then we're going to hear from him,
5 because I am going to give everyone every
6 opportunity to be heard on this motion.
7 This is not a trial. There is no jury here.
8 Sometimes in a motion, with these allegations,
9 people have to cross-examine without having had the
10 opportunity to take somebody's deposition.
11 MR. DANDAR: And the other thing on the record
12 is that you told us in the beginning not to move for
13 directed verdict or whatever that would be at this
14 stage --
15 THE COURT: I did that, Mr. Dandar, for you. I
16 figured regardless of what decision I made, if I
17 made a decision that you should not be removed from
18 the case, that there would be an inquiry by the
19 Florida Bar.
20 I have seen the Florida Bar counsel over here
21 from the beginning of this thing. So I suspect,
22 therefore, that they are asking for a transcript.
23 MR. DANDAR: Yes.
24 THE COURT: I thought it would be unfair to you
25 to have one side's part of the case on the record
21
1 and not whatever witness you wanted to present.
2 That is not that I'm doing the Florida Bar's
3 work for them. But I just, quite frankly, felt that
4 even I, in making a decision whether to disqualify a
5 lawyer, would want to hear everything that both
6 sides had to say.
7 MR. DANDAR: Yes.
8 THE COURT: And, therefore, decided I didn't
9 need to hear argument. I would hear from both
10 sides. I think that would be probably a good way to
11 do it.
12 Are you saying you didn't want to waive
13 anything?
14 MR. DANDAR: I don't want to waive anything.
15 THE COURT: Nothing is waived.
16 MR. DANDAR: All right.
17 THE COURT: But I just don't want to hear legal
18 argument. I want to hear from everybody so when I
19 sit down to ferret out, I don't have to say, "Gee, I
20 wonder, if I heard from one of their witnesses, what
21 I would have heard and did I stop too soon?"
22 In other words, if I were to hear your argument
23 right now and were to go home, I would have to think
24 about this long and hard then and I might have to
25 say, "Well, it is denied and I want to hear your
22
1 witnesses."
2 So the best thing for me to do is hear it all.
3 MR. DANDAR: Okay.
4 THE COURT: Then you -- but you have not waived
5 a thing.
6 MR. DANDAR: All right.
7 THE COURT: All right?
8 MR. LIROT: Very good. Thank you.
9 THE COURT: Mr. Lirot, anything else from you?
10 MR. LIROT: No, Judge. Just my gratitude.
11 THE COURT: Well, that is --
12 MR. WEINBERG: That is very charitable.
13 THE COURT: Everybody has been nice to me
14 today.
15 MR. WEINBERG: What time tomorrow morning?
16 THE COURT: Mr. Howie may not have such nice
17 things to say.
18 MR. WEINBERG: What time tomorrow morning?
19 (A discussion was held off the record.)
20 THE COURT: Tomorrow, 9~o'clock.
21 MR. WEINBERG: See you at nine.
22 THE COURT: We're in recess.
23 (WHEREUPON, Court stands in recess at
24 4:50 p.m.)
25 _________________________________
23
1 REPORTER'S CERTIFICATE
2
3 STATE OF FLORIDA )
4 COUNTY OF PINELLAS )
5 I, LYNNE J. IDE, Registered Merit Reporter,
certify that I was authorized to and did stenographically
6 report the proceedings herein, and that the transcript is
a true and complete record of my stenographic notes.
7
I further certify that I am not a relative,
8 employee, attorney or counsel of any of the parties, nor
am I a relative or employee of any of the parties'
9 attorney or counsel connected with the action, nor am I
financially interested in the action.
10
11 DATED this 12th day of June, 2002.
12
13
14 ______________________________
LYNNE J. IDE, RMR
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