Case 8:13-cv-00220-JDW-TBM Document 71 Filed 09/13/13 Page 1 of 8 PageID 1617

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

LUIS A. GARCIA SAZ, et al., Plaintiffs, v. CHURCH OF SCIENTOLOGY RELIGIOUS TRUST, et al., Defendants. / Case No. 8:13-cv-220-T-27TBM

ORDER THIS MATTER is before the Court on Plaintiffs Motion for Protective Order Regarding Defendants Request for Production Pursuant to Exhibit A of Defendants Flag and Ship Subpoena Duces Tecum (Doc. 60), Defendants response in opposition and, in the alternative, Motion to Compel Production of Documents Responsive to Subpoenas Duces Tecum (Doc. 59), and Plaintiffs response in opposition to Defendants Motion to Compel (Doc. 63). Plaintiff also filed a Report on the Parties Meet and Confer Conferences on Issues to be Addressed at the Hearing Set for September 5, 2013 (Doc. 69). A motion hearing was held on September 5, 2013. By way of background, Defendants Motion to Disqualify Plaintiffs Counsel (Docs. 36, 37) is currently pending before the Court.1 An evidentiary hearing is scheduled for October 3, 2012. See (Doc. 61). In light of the pending Motion to Disqualify, Defendants

Defendants are referred to collectively herein as the Church.

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issued subpoenas duces tecum to law firms representing Plaintiff, specifically, Gray Robinson, P.A., Babbitt, Johnson, Osborne & Le Clainche, P.A., and Weil Quaranta McGovern, P.A.; to individual attorneys within those law firms, specifically, Robert Johnson, Richard Zabak,2 Theodore Babbitt, and Ron Weil; and to nonparties Michael Rinder and Marty Rathbun. By their Motion (Doc. 60), Plaintiffs object to the document requests, arguing that the requests are patently overbroad, unduly burdensome, and seek privileged information. In response (Doc. 59), Defendants argue that the document requests are pertinent to their pending Motion to Disqualify Plaintiffs Counsel (Doc. 36). Moreover, much of the information sought is not covered by attorney-client privilege since the relevant communications are between Plaintiffs attorneys and trial consultants and other attorneys. Thus, at most, the communications are work product, which is discoverable on a showing of need of the materials in preparation of the case and an inability, without undue hardship, to obtain the substantial equivalent by other means. Accordingly, in the alternative, Defendants bring a Motion to Compel (Doc. 60), seeking the documents responsive to the subpoena. In response to Defendants Motion to Compel (Doc. 63), Plaintiffs reiterate that the information sought is not directed to any legitimate issue concerning disqualification and improperly targets privileged communications. Moreover, the Motion to Compel is premature prior to the Court finding that the Motion to Disqualify Counsel has merit.

At the hearing, the parties noted their agreement that the present subpoena issued to Richard Zabak, Esq. is moot and need not be complied with, since Mr. Zabak only has possession of a limited number of duplicate documents. 2

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Prior to the hearing, Plaintiffs filed a report on the parties meet and confer conference on issues to be addressed at the hearing (Doc. 69), which narrows the issues before the Court. Herein, the Court addresses the six categories as reflected in that report. Upon consideration, Plaintiffs Motion for Protective Order Regarding Defendants Request for Production Pursuant to Exhibit A of Defendants Flag and Ship Subpoena Duces Tecum (Doc. 60) is GRANTED in part. As to requests one and five, Plaintiffs Motion is denied. The relationship among counsel for Plaintiffs, in particular, between Babbitt, Johnson, Osborne & Le Clainche, P.A., and Weil Quaranta McGovern, P.A., with Robert Johnson, Esquire and GrayRobinson, P.A., is pertinent to issues raised by the Motion to Disqualify Counsel. Thus, within ten (10) days from the date of this Order, Plaintiffs shall produce copies of the written retainer agreements with counsel in this litigation and any written agreement reflecting on the working relationship and fee split, among these firms or their individual counsel. Within this same time period, Babbitt, Johnson, Osborne & Le Clainche, P.A., and Weil Quaranta McGovern, P.A., Robert Johnson, Esquire and Gray Robinson, P.A., shall produce copies of any written agreements with Mike Rinder related to his support and participation, in any manner, in this litigation. Such production should include documentation of the amounts paid to Rinder to date for his work in relation to this litigation.

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As for request two,3 which seeks all communications between Robert Johnson, Esquire and Mssrs. Rinder and Rathbun, various law firms including Babbitt, Johnson and Weil Quaranta, as well as Johnsons time records, all related to litigation against any Scientology affiliated entity, attorney Johnson has produced a privilege log and submitted to the Court for in camera review some three hundred pages of documents predating the filing of the suit for which he claims attorney-client privilege and work product protection. I have reviewed the documents. Without addressing particular communications, the documents confirm that these firms have agreed to a joint representation of clients for claims against the Church and that they share a mutual interest in the same, which supports the broad claim of attorney-client privilege for much of their communications. It further appears that Mr. Rinder has been retained to bird-dog new clients and act as a consultant, such that his communications with clients and attorneys is subject to protection as well. Moreover, while counsel have exchanged numerous communications, few of those reviewed actually relate to this case. For that reason, at this point, I decline to require they be produced, regardless of the matter of privilege. The proffered documents do evidence that attorney Johnson and the GrayRobinson firm occupy a secondary role in this litigation, but that Johnson has played an active role in client intake, the evaluation of claims, and strategy discussions. He also appears to be the primary contact with Mr. Rinder. That said, many of the proffered communications by or with him are in no way relevant to the issues raised by the Church in
3

I agree with Plaintiffs complaints that the subpoenas and these requests are overbroad, in particular, given the nature and scope of the pending conflict motion. Any production required hereby need only relate to this litigation and the issues raised by the pending motion and Plaintiffs response. 4

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their Motion to Disqualify Counsel.4 That said, the Court finds that those documents bates stamped RJohnson #000051-92 should be produced. In and of themselves, they are not privileged and in any event, appear ultimately discoverable. Also, those emails and documents generated by Mark Sell and bates stamped RJohnson #000289-291 and #000299-304 should likewise be produced. In addition, RJohnson #000323-326 shall also be produced. As for request three,5 which seeks similar production for communications between Mike Rinder and attorney Theodore Babbitt, the Babbitt Johnson firm, Ronald Weil, the Weil Quaranta firm, Marty Rathbun and others, Plaintiffs argue that such communications are protected as work product given Mr. Rinders role as a consultant for Plaintiffs in this litigation. Defendants argue that there is no privilege which bars it from discovering such communications, given Rinders former status as a senior official with the Church of Scientology and the fact that he has (undoubtedly) communicated with Plaintiffs counsel concerning the Churchs internal operating methods and policies, defense methods and litigation tactics/strategies, including litigation playbook information. 6 As for the claim of For instance, there are many email exchanges related to possible meetings and scheduling of the same, which, even if not privileged, have no bearing on any present dispute. As to this request as well, I agree with Plaintiffs that the subpoenas are overbroad given the nature and scope of the pending conflict motion. At arguments, Defendants counsel indicated his belief that Rinder was subject to a confidentiality agreement with the Church of Scientology, which would bar such disclosures as Rinder is believed to have made. Plaintiffs urge that they are not bound by any such agreement and in any event, the Church of Scientology has waived any issue concerning such agreement given its failure to address the numerous instances when Rinder has gone public with matters concerning the operation, methods and tactics of the Church. At present, I have not located such an agreement in the Court record. 5
6 5 4

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work product protection, Defendants argue that even if there is such a privilege, the documents are discoverable on a showing of need of the materials in preparation of the case, and an inability, without undue hardship, to obtain the substantial equivalent by other means. Here, it appears that Rinder has been retained by Plaintiffs counsel as a consultant for bringing in new clients on claims against the Church and as a consultant on matters related to the operations of the Church and trial strategy. It is also apparent that he brings to this and other potential litigation as yet unidentified, documents derived from or perhaps actually obtained while he was with the Church. Plaintiffs claim the communications and other matters produced by Rinder in his consulting capacity are protected by the work product protection, if not attorney-client privilege. However, as of yet, they have failed to produce a privilege log or otherwise comply with the requirements of Fed. R. Civ. P. 26(b)(5). Accordingly, as a first step, Plaintiffs shall, within fourteen (14) days from the date of this Order, produce a privilege log, in sufficient form and detail to comply with Rule 26(b)(5), for any communications or documents supplied by Rinder in this litigation, which relate to the operations of the Church and its litigation tactics. Thereafter, the matter may be addressed on further motion, if necessary. As for request four, similar matters are sought for communications by and with Marty Rathbun, another former member of the Church. As for Rathbun, it is not claimed that he is anything other than a potential witness to this litigation. As such, it is doubtful there exists any attorney-client privilege, nor do Plaintiffs or their counsel have standing to protest a subpoena directed at Rathbun. While they perhaps may claim work product protection for matters in their possession, it is not clear that Plaintiffs or counsel even have documents or 6

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communications from Rathbun. Accordingly, any outstanding subpoena directed to Mr. Rathbun appears enforceable and should be complied with. Moreover, within fourteen (14) days from the date of this Order, Plaintiffs and their counsel shall produce to Defendants any such non-privileged matters as are within their possession, custody or control, which are related to this case and within the scope of the subpoena. Otherwise, they shall produce a privilege log, in sufficient form and detail to comply with Rule 26(b)(5), for any communications or documents supplied by Rathbun. By stipulation, request six is moot. Specifically, the email from Plaintiffs counsel to defense counsel notes that, Defendants currently accept the [P]laintiffs representation as to request six. (Doc. 69-1 at 3). Accordingly, request six is denied as moot. Accordingly, Defendants Motion to Compel Production of Documents Responsive to Subpoenas Duces Tecum (Doc. 59) is GRANTED in part, for the aforementioned requests. It is further ORDERED that Mr. Johnson or his representative shall make arrangement with chambers to promptly retrieve the documents submitted for in camera review. Done and Ordered in Tampa, Florida, this 13h day of September 2013.

Copies furnished to: Counsel of Record

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