OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




               James CALDERBANK and Thomas A. Bustin, Appellants,
                                       v.
  Gabriel CAZARES and Margaret Cazares, his wife, and the Church of Scientology
           of California, a California corporation, et al., Appellees.
                                   No. 82-594.
                      District Court of Appeal of Florida,
                                 Fifth District.
                                 July 28, 1983.
  Defendant in action for malicious prosecution, abuse of process and invasion
 of privacy obtained order from the Circuit Court, Volusia County, J. Robert
 Durden, J., compelling nonparty witness to answer certain questions asked by
 defendant, and the witness appealed.  The District Court of Appeal, Cowart, J.,
 held that there was nothing in pleadings, trial court order or defendant's
 argument that demonstrated how information sought was reasonably calculated to
 lead to discovery of admissible evidence in pending action.
  Order quashed.
  Frank D. Upchurch, Jr., J., concurred specially with opinion.
  Sharp, J., dissented with opinion.

 [1] APPEAL AND ERROR
 Provision of rule for order to compel nonparty witness by action in circuit
 court where deposition is taken characterizes circuit court action in such
 instance as judicial proceeding separate and distinct from underlying law
 action, and order of court in such proceeding constitutes "final order of a
 trial court" which District Court of Appeal has jurisdiction to review,
 although District Court of Appeal could also treat such appeal as petition for
 certiorari.  West's F.S.A. RCP Rule 1.380(a)(1);  West's F.S.A. R.App.P. Rules
 9.030(b)(1)(A), 9.040(c).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [2] PRETRIAL PROCEDURE
 In action for malicious prosecution, abuse of process and invasion of privacy,
 there was nothing in pleadings, trial court order or defendant's argument that
 demonstrated how information sought from nonparty witness was reasonably
 calculated to lead to discovery of admissible evidence in such action, and
 thus, order compelling discovery from such witness would be quashed.  West's
 F.S.A. RCP Rule 1.280(b)(1).

 [3] PRETRIAL PROCEDURE
 A reasonably "calculated" causal connection between information sought and
 possible evidence relevant to issues in pending action must "appear" from
 nature of both or it must be demonstrated by person seeking discovery;  if
 logical connection is not readily apparent, questioner should make it apparent
 by pointing out to court his reasoning process based on facts and inferences
 demonstrating how he calculates that sought information will "reasonably" lead
 to admissible evidence.  West's F.S.A. RCP Rule 1.280(b)(1).

 [4] PRETRIAL PROCEDURE
 Mere fact that an inquiry that appears to be irrelevant "might" lead to
 evidence that is relevant and admissible to issues in pending suit is not
 sufficient to establish necessary causal connection between the irrelevant
 evidence and the relevant evidence to warrant order compelling discovery of the
 irrelevant evidence.  West's F.S.A. RCP Rule 1.280(b)(1).
  *378 Frank X. Kowalski, Clearwater, for appellants.
  Dan R. Warren, Daytona Beach, for appellees Cazares.
  J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellee The Church
 of Scientology of California, Inc.

  COWART, Judge.
  [1] This is an appeal by a witness, James Calderbank, and his attorney,
 Thomas A. Bustin, from an order compelling Calderbank to answer certain
 questions asked by appellee, Church of Scientology, and ordering the witness
 "and/or" his attorney to pay attorney's fees. [FN1]

      FN1. The underlying action of Cazares v. The Church of Scientology of
     California is pending in the circuit court of Volusia County, Florida.  The
     non-party witness Calderbank was set for deposition in St. Petersburg in
     Pinellas County, Florida.  When the witness questioned his duty to answer
     some questions at his deposition, the deposing party filed a motion to
     compel in the circuit court of Volusia County, Florida.  Florida Rule of
     Civil Procedure 1.380(a)(1) provides, "An application for an order to a
     deponent who is not a party shall be made to the circuit court where the
     deposition is being taken."  No objection as to venue was raised at the
     hearing on the motion to compel in the circuit court of Volusia County and
     that point was, therefore, waived.  The circuit court of Volusia County had
     jurisdiction of the parties and the subject matter, i.e., the motion to
     compel discovery.  However, the provision of the rule for an order to
     compel a non-party witness by action in the circuit court where the
     deposition is taken characterizes the circuit court action in such an
     instance as a judicial proceeding separate and distinct from the underlying
     law action and the order of the court in such proceeding, as here,
     constitutes a final order of a trial court which this court has
     jurisdiction to review under Florida Rule of Appellate Procedure
     9.030(b)(1)(A), although under Florida Rule of Appellate Procedure 9.040(c)
     this court could also have treated this appeal as a petition for
     certiorari, see Affiliated of Florida, Inc. v. U-Need Sundries, Inc.,
     397 So.2d 764 (Fla. 2d DCA 1981);  Everglades Protective Syndicate, Inc.
     v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1980);  Dade County Medical
     Association v. Hlis, 372 So.2d 117 (Fla. 3d DCA 1979).

  The suit in which Calderbank's deposition was being taken is an action brought
 by Gabriel Cazares and wife against the appellee Church of Scientology for
 malicious prosecution, abuse of process and invasion of privacy.  These causes
 of action in turn relate to a prior action filed in 1976 in federal court by
 the Church of Scientology against Gabriel Cazares and eventually
 dismissed. *379 [FN2]  Mr. Calderbank's deposition in this action was taken
 on March 2, 1982, and the issue in this case is whether certain questions
 propounded to Mr. Calderbank were "relevant to the subject matter of the
 pending action" and "if the information sought appears reasonably calculated to
 lead to the discovery of admissible evidence."  Fla.R.Civ.P. 1.280(b)(1).

      FN2. See Church of Scientology of California, Inc. v. Cazares, 638 F.2d
     1272 (5th Cir.1981).

  Calderbank was asked a series of questions concerning himself and Cazares.  He
 was asked whether he or Cazares were "involved with an organization that is
 raising money or funds for the Scientology Victims Defense Fund."  He was asked
 whether he or others were then "involved in any efforts to oust or evict the
 Church of Scientology from the city of Clearwater."  And he was asked
 specifically whether he had gone to Boston to discuss, with attorney Michael
 Flynn, the Scientology Victims Defense Fund.
  [2] As a defense in the pending Cazares action, appellee Church of
 Scientology was undertaking to prove that its 1976 action against Cazares was
 not groundless and hence not malicious.  Appellee-church argued below that to
 show this it needed evidence relating to Cazares' intent or hostility towards
 the church in 1976 and, although Calderbank did not even know Cazares until
 1979, Calderbank "might" have information relating to Cazares' intent in 1976.
 It would appear to us that the issue was not Cazares' malicious intent or
 hostility towards the church in 1976 but the church's malicious intent or
 hostility towards Cazares in 1976.  The church seeks to prove that its 1976
 suit against Cazares was not groundless or malicious.  Even assuming that
 Cazares' attitude or malice towards the church is relevant, there is absolutely
 nothing in the pleadings, the trial court order or in appellee's argument that
 demonstrates how the information sought [FN3] was reasonably calculated to lead
 to the discovery of admissible evidence in the pending Cazares action.

      FN3. I.e., Calderbank's or Cazares' possible involvement in 1982 with
     Michael Flynn or the Scientology Victims Defense Fund or efforts to "oust
     or evict the Church of Scientology from Clearwater"

  [3][4] A reasonably "calculated" causal connection between the information
 sought and the possible evidence relevant to the issues in the pending action
 must "appear" from the nature of both or it must be demonstrated by the person
 seeking the discovery.  If a logical connection is not readily apparent, the
 questioner should make it apparent by pointing out to the court his reasoning
 process based on facts and inferences [FN4] demonstrating how he calculates
 that the sought information will "reasonably" lead to admissible evidence.  The
 mere fact that an inquiry that appears to be irrelevant "might" lead to
 evidence that is relevant and admissible to the issues in the pending suit is
 not sufficient.  Such a rule would place no limitation on the authority of any
 litigant to invade, by questions, the privacy of a witness.  Since a civil
 witness subpoena and the threat of contempt is, of course, state action, in
 Florida relevancy in discovery now has a limitation of constitutional
 dimensions. [FN5]  Since it is not "apparent" how the information sought in
 this case is "reasonably calculated" to lead to admissible evidence on the
 issues in the pending litigation the order compelling discovery is

      FN4. An excellent example of an analysis of inferences and natural
     presumptions as they relate to relevancy is contained in Morgan, Basic
     Problems in Evidence, 185-87 (1963).

      FN5. Art. I, s 23 Fla. Const. (1980).  See Cope, A Quick Look at
     Florida's New Right of Privacy, 55 Fla.B.J. 12 (1981).

  QUASHED.

  FRANK D. UPCHURCH, Jr., concurs specially with opinion.

  SHARP, J., dissents with opinion.

  FRANK D. UPCHURCH, Jr., Judge, concurring specially:
  While I agree with Judge Sharp that the limit to discovery stated in Judge
 Cowart's *380 opinion is unduly stringent, I agree with the result.
  The witness was extensively interrogated about his own relationship with the
 Church of Scientology.  Upon objection, counsel for the Church failed to
 demonstrate or even suggest how the personal actions of the witness could
 relate to or lead to evidence relevant to the motivation of Cazares several
 years before.  The questions framed seemed designed merely to develop or expose
 some personal animus or enmity of the witness against the Church of
 Scientology.
  The Comment to Florida Rule of Civil Procedure 1.280 quoted in the dissent
 does not assert the right to question a witness without limitation.  See
 East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276 (Fla. 5th DCA
 1982).  Rather, the Comment indicates that the inquiry is limited to "all of
 the facts and circumstances that may have a bearing on either side of the
 case."  When an objection is made, if not apparent from the question itself,
 the interrogating party is required to explain how the question may have a
 bearing on either side of the case.  This was not attempted here and the
 bearing was certainly not apparent from the questions.  Therefore, I concur
 with the result.

  SHARP, Judge, dissenting.
  I agree with the trial court that the answers to the questions posed may
 reasonably have led to the discovery of evidence which was admissible in the
 pending suit.  In this case Cazares seeks damages for malicious prosecution and
 invasion of his right of privacy stemming from a suit filed by the Church
 against him in federal court in 1976.  In that suit, the Church suffered a
 dismissal because it failed to establish actual malice on Cazares' part in its
 libel claim.  This element had to be proved in order to succeed because the
 Church was a public figure.  New York Times Company v. Sullivan, 376 U.S.
 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
  At the hearing on witness Calderbank's motion for a protective order, the
 Church argued its questions were designed to obtain information about Cazares'
 motivation or malice in making the statement sued upon in 1976 in order to
 prove that the Church's suit was not "groundless."  The appellees argued only
 that the questions were not relevant because Calderbank did not know Cazares
 until 1979.  However, because of Calderbank's close association and friendship
 with Cazares, it was possible he had information or knowledge that would relate
 back to or lead to further discovery of facts regarding Cazares' intent and
 motivation in 1976.  Such evidence would relate directly to the subject matter
 of the pending claims and defenses.  Fla.R.Civ.P. 1.280(b)(1).  The lower court
 so concluded, and I would affirm.  Brown v. Bridges, 327 So.2d 874 (Fla. 2d
 DCA 1976);  Jones v. Seaboard Coast Line Railroad, 297 So.2d 861 (Fla. 2d
 DCA 1974);  Southern Mill Creek Products Co., Inc. v. Delta Chemical
 Company, 203 So.2d 53 (Fla. 3d DCA 1967).
  I think the limit to discovery stated by the majority opinion is unduly
 stringent.  It requires that the possible evidence relevant to the issues in
 the pending suit must "appear" from the question or the suit itself, or that
 such relevance must be "demonstrated" by the party asking the questions.  This
 presupposes the questioner knows the answerer's response in advance of asking
 the question.  That, in my view, is contrary to the spirit and intent of modern
 discovery rules. [FN1]  Indeed, the comment to Rule 1.280 in Florida Statutes
 Annotated clearly states:

      FN1. Southern Mill Creek Prod. Co., Inc. v. Delta Chem. Co., 203 So.2d
     53, 55 (Fla. 3d DCA 1967).

   The objection that the examining party is on a "fishing expedition" is no
 longer available to preclude him from inquiring into all of the facts and
 circumstances that may have a bearing on either side of the case.  The
 examining party is not restricted to the discovery of facts relevant to his
 claims or defense.  His greater *381 need is to know the facts of the
 opponent's claim or defense, and the rule provides for an examination "whether
 it relates to the claim or defense of the examining party...."

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