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)

   William H. WEBSTER, Director of the Federal Bureau of Investigation of the
                              United States, et al.
                                  No. 85-5885.
                         United States Court of Appeals,
                          District of Columbia Circuit.
                              Argued June 3, 1986.
                             Decided Sept. 26, 1986.
  Religious organization sued the Federal Bureau of Investigation, alleging that
 it was victim of extensive campaign of government harassment.  The United
 States District Court, District of Columbia, entered order dismissing action,
 and organization appealed.  The Court of Appeals, Starr, Circuit Judge, held
 that founder and spiritual leader of organization, who continued to retain
 authority over its administrative and ecclesiastical affairs even after he
 resigned as executive director, qualified as de facto "managing agent," so that
 his failure to appear at deposition could result in dismissal of organization's
  See also, D.C., 104 F.R.D. 459.

 Whether individual qualifies as "managing agent" of corporation, so that his
 failure to appear at deposition may result in dismissal of corporation's suit,
 must be decided case by case based on character of his control over
 corporation, degree to which his interest and interests of corporation
 converge, and extent to which his testimony will be helpful in fact-finding on
 matter at issue, in comparison to that of others associated with corporation.
 Fed.Rules Civ.Proc.Rule 37, 28 U.S.C.A.

 Founder and spiritual leader of religious organization, who continued to retain
 authority over its administrative and ecclesiastical affairs even after he
 resigned as executive director, qualified as de facto "managing agent," so that
 his failure to appear at deposition could result in dismissal of suit commenced
 by corporation.  Fed.Rules Civ.Proc.Rule 37, 28 U.S.C.A.

 "Abuse of discretion" standard calls on appellate court, in spirit of humility
 occasioned by not having participated in what has gone before, not just to
 scrutinize conclusion but to examine with care and respect process that led up
 to conclusion.

 Dismissal of religious organization's suit against government was not abuse of
 discretion, where managing agent of corporation who was probably best informed
 about matters at issue failed to appear at deposition despite ample advance
 notice and warning as to consequences.
  *1448 **54 Appeal from the United States District Court for the District
 of Columbia (Civil Action No. 78-0107).
  *1449 **55 Anthony P. Bisceglie, Washington, D.C., with whom William C.
 Walsh and Jeffrey B. O'Toole were on the brief, for appellant.
  Freddi Lipstein, Atty., Dept. of Justice, Washington, D.C., with whom Richard
 K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty.,
 and Barbara L. Herwig, Atty., Dept. of Justice, were on the brief, for
 appellees.  Anthony J. Steinmeyer and E. Roy Hawkens, Attys., Dept. of Justice,
 also entered appearances for appellees.
  Regina Jackson, Washington, D.C., was on the brief for amici curiae, American
 Coalition of Unregistered Churches, et al., urging reversal.

  Before GINSBURG, STARR, and SILBERMAN, Circuit Judges.

  Opinion for the Court filed by Circuit Judge STARR.

  STARR, Circuit Judge:
  The appeal before us marks the end of eight years of litigation in a case that
 has never passed beyond the stage of pre-trial discovery.  The District Court
 dismissed the case as a sanction under Fed.R.Civ.P. 37 for failure to comply
 with a discovery order entered by the court.  Specifically, L. Ron Hubbard, the
 founder of the Church of Scientology, failed to appear for a court-ordered
 deposition to inquire into his status as a managing agent of that
 organization.  We are satisfied that the District Court acted lawfully within
 its authority and sound discretion.  We therefore affirm.
  In 1978, the Founding Church of Scientology of Washington, D.C.
 ("Scientology") filed suit on behalf of itself and a class composed of all
 "Churches" and "Missions" of Scientology in the United States.  In its
 complaint, Scientology named the United States and numerous federal officials
 as defendants. [FN1]  The complaint alleged an extensive campaign of government
 harassment that included illegal investigative and law enforcement activities,
 collection and dissemination of information about Scientology and other related
 organizations, and encouragement of hostility toward the movement inside and
 outside the federal government.

      FN1. The other defendants, named in their official capacities, were the
     Director of the Federal Bureau of Investigation, the Attorney General of
     the United States, the Director of the Central Intelligence Agency, the
     Secretary of the Treasury, the Chief of the United States National Central
     Bureau of the International Criminal Police Organization, the Director of
     the National Security Agency, the Secretary of the Army and the Postmaster
     General.  For convenience sake, the various defendants-appellees will
     frequently be referred to in our discussion as "the Government."

  By virtue of this alleged unlawful activity, Scientology asserted violations
 of the First, Fourth and Ninth Amendments to the Constitution.  It sought
 compensatory and punitive damages under the Federal Tort Claims Act;  a
 declaratory judgment that the defendants' actions had violated the Constitution
 and laws of the United States;  an injunction against further law enforcement
 activities by defendants directed at the various Scientology "Churches" and
 their members;  and further injunctive relief to expunge or destroy false and
 derogatory information allegedly collected and obtained illegally by defendants
 and placed in government records.
  In an initial opinion and order dated October 19, 1978, the District Court
 dismissed the damage claims for failure to exhaust administrative remedies
 under the Federal Tort Claims Act, and the claim for injunctive relief from
 asserted religiously based discrimination on the grounds that plaintiff had not
 pursued the exclusive remedy available under Title VII of the Civil Rights Act
 of 1964.  The trial court allowed the remainder of the suit to proceed and
 conditionally certified a class of all Scientology Churches and Missions for
 purposes of seeking declaratory and injunctive relief.
  Subsequent developments in the case followed on the heels of a criminal
 prosecution, United States v. Mary Sue Hubbard, Crim. No. 78-401, slip op.
 (D.D.C. order *1450 **56 enforcing plea agreement Oct. 8, 1979), brought
 against nine high ranking officials of the Church of Scientology.  In that
 case, several defendants stipulated that the network of Scientology
 organizations had conducted a broad campaign against U.S. Government entities
 and officials, particularly the Internal Revenue Service. [FN2]  This concerted
 campaign by the Scientology apparatus encompassed a wide range of illegal
 activities, including theft of government documents for use in litigation
 against the United States, falsification of government identification cards,
 wiretapping, infiltration and perjury.

      FN2. See Stipulation of Evidence filed Jan. 7, 1980 as Exhibit 1 to
     Memorandum of Facts and Activities in support of Defendants' Motion for
     Leave to Answer.

  On the basis of this new evidence, the defendants in the present case sought
 to amend their answer to the complaint in order to interpose a defense of
 "unclean hands."  The United States Magistrate, in a decision affirmed by the
 District Court, permitted the defense to be raised and discovery to be
 conducted without deciding whether such a defense should in fact be applied in
 this case.  We pause to observe that "unclean hands" as a defense went to the
 injunctive remedy, but not to the request for declaratory relief.  As will be
 seen, however, the defendants contend on appeal that the discovery they sought
 extended beyond this defense to provide a general, substantive defense to the
 claims asserted in this suit. [FN3]

      FN3. The undisputed evidence of a campaign of criminal activity by the
     Church, the appellees argue, in fact justified the intensive law
     enforcement activities that the complaint attacked.  See Transcript of Oral
     Argument, June 3, 1986, at 18-28.

  On August 21, 1984, as part of a series of discovery requests, the Government
 noticed the deposition of L. Ron Hubbard, the founder of the Church of
 Scientology, in his capacity as "an officer, director, or managing agent of
 plaintiffs."  Joint Appendix ("J.A.") at 163.  When Hubbard failed to appear
 for the deposition on the designated date, defendants moved to dismiss the suit
 or, in the alternative, to compel Hubbard's deposition.  The court responded by
 ordering defendants to renotice the deposition and to submit a factual proffer
 as to why Hubbard's deposition was necessary.  J.A. at 262.  The court stated
 that if Hubbard did not appear, the Government could then renew its alternative
 motion to compel his deposition or dismiss the case.  The defendants submitted
 the requested factual proffer and renoticed the deposition.  Hubbard again
 failed to appear on the appointed date.  In the wake of this turn of events,
 plaintiffs submitted numerous declarations by officials of the individual
 Scientology churches and high officials in the central Scientology organization
 denying not only Hubbard's status as managing agent but any capability of
 contacting him.  J.A. at 271-350.  The Government responded with additional
 declarations and other evidence in support of Hubbard's status as managing
 agent.  J.A. at 351-407.
  In an order issued March 13, 1985, the District Court found that the
 Government had established "at least a prima facie case" that Hubbard was
 managing agent as of November 19, 1984.  To settle this issue conclusively, the
 court ordered Hubbard to appear on April 5, 1985, for a limited-purpose
 deposition addressed to "the issue of his relationship to the organization."
 J.A. at 429.  No inquiry could be made into the facts pertaining to the merits
 of the suit.  Failure to appear, the court expressly warned, would result in
 dismissal of the suit altogether.  Id.  Submitting several additional
 declarations by Church employees and officials, plaintiff moved for
 reconsideration.  J.A. at 431-72.  This the court denied.  J.A. at 475.  On
 April 9, 1985, upon notification by counsel that Hubbard had failed to appear
 for the limited-purpose deposition as scheduled, the court dismissed the case
 with prejudice.  J.A. at 488.  On July 10, the court denied the plaintiff's
 motion to vacate the judgment of dismissal.  Scientology then filed this
                                  *1451 **57 II
  The ultimate question for resolution is whether the District Court abused its
 discretion when it dismissed this suit as a discovery sanction under
 Fed.R.Civ.P. 37.  Before we reach that issue, however, we must first
 determine whether the District Court properly resolved the underlying question
 whether the Government had shown, at least prima facie, that Hubbard was a
 managing agent of Scientology and could therefore be compelled to testify on
 its behalf.
  Fed.R.Civ.P. 26(a) broadly authorizes parties to obtain discovery by
 various means, the first of which is "depositions upon oral examination."
 Depositions thus rank high in the hierarchy of pre-trial, truth-finding
 mechanisms.  That is not surprising.  Face-to-face confrontations prior to
 trial, with such indicia of formality as administration of the oath, the
 presence of counsel and stenographic recording of the proceedings, are a
 critical component of the tools of justice in civil litigation.
 Fed.R.Civ.P. 30(a) thus broadly provides that "any party may take the
 testimony of any person, including a party, by deposition upon oral
 examination."  Fed.R.Civ.P. 32(a)(2), governing the use of depositions in
 court proceedings, provides that the deposition "of anyone who at the time of
 taking the deposition was an officer, director, or managing agent ... may be
 used by an adverse party for any purpose."  (Emphasis added.)  At the same
 time, Fed.R.Civ.P. 37(d) authorizes dismissal and other sanctions "[i]f a
 party or an officer, director or managing agent of a party ... fails ... to
 appear before the officer who is to take his deposition, after being served
 with a proper notice."  (Emphasis added.)  The concept of "managing agent" is
 thus an integral part of the corpus of discovery law.  See also Fed.R.Civ.P.
  Federal discovery provisions have traditionally provided a mechanism for an
 adverse party to secure depositions from a public or private corporation
 through a managing agent designated by the adverse party.  In 1970, an
 amendment to the Federal Rules of Civil Procedure replaced a specific
 authorization for securing depositions of managing agents with the current,
 more general framework, and established a new mechanism permitting the
 corporation (or other entity) itself to designate managing agents to sit for
 depositions, see Fed.R.Civ.P. 30(b)(6).  When the entity itself makes the
 designation, subsequent disputes over the adverse party's use of the
 deposition "for any purpose" are avoided.  See Fed.R.Civ.P. 30, Advisory
 Comm. Note to Subdivision (b)(6), at 92 (1986).  However, the language
 authorizing the new procedure expressly stated that it "does not preclude
 taking a deposition by any other procedure authorized in these rules."
 Fed.R.Civ.P. 30(b)(6).  The Advisory Committee Note accompanying the Rule
 made clear that the new procedure does not supplant but "supplements the
 existing practice whereby the examining party designates the corporate official
 to be deposed."  The former procedure, long known to the bar, thus remains
 available for litigants to employ if they see fit.  See Atlantic Cape
 Fisheries v. Hartford Fire Insurance Co., 509 F.2d 577, 578-79 (1st Cir.1975);
 8 C. Wright, A. Miller, Federal Practice and Procedure s 2103, at 373-74
 (1970).  It was under this traditional procedure that the Government sought to
 depose Hubbard.
  [1] We pause at this stage of our analysis to observe that there is no
 doubt, and appellant indeed has not sought to dispute, that Scientology
 qualifies under the broad category of organizations which can be deposed
 through an adverse party's designation of a managing agent.  Regardless of
 whether Scientology is a religious organization, a for-profit private
 enterprise, or something far more extraordinary--an intriguing question that
 this suit does not call upon us to examine--the entities to which the managing-
 agent concept can be applied include all manner of public and
 *1452 **58 private corporations and associations, non-profit and
 otherwise.  See 4A J. Moore, Moore's Federal Practice P 30.51, at 30-41 (2d ed.
  The law concerning who may properly be designated as a managing agent is
 sketchy. [FN4]  Largely because of the vast variety of factual circumstances to
 which the concept must be applied, the standard, like so many others in the
 law, remains a functional one to be determined largely on a case-by-case
 basis.  See Petition of Manor Investment Co., 43 F.R.D. 299, 300
 (S.D.N.Y.1967);  Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254
 (S.D.N.Y.1962).  Nearly all the published cases relating to the issue are from
 the district courts, and nearly all of those decisions concern whether an
 employee of a corporation should be designated a managing agent.  4A J. Moore,
 supra, P 30.55, at 30-72 n. 15.  Only rarely have courts even had occasion
 to examine whether a de facto relationship with a corporation, rather than a de
 jure one, furnishes a basis in law for designating a managing agent.  See,
 e.g., Petition of Manor Investment Co., supra;  Independent Productions
 Corp. v. Loew's, Inc., 24 F.R.D. 19 (S.D.N.Y.1959).

      FN4. In at least one instance, the burden of proof to establish managing-
     agent status has been placed on the party seeking discovery.  See
     Proseus v. Anchor Line, Ltd., 26 F.R.D. 165, 167 (S.D.N.Y.1960).  Since
     the ultimate decision whether a deposition qualifies as a statement by a
     managing agent must be made by the trial court in applying Fed.R.Civ.P.
     32(a)(2), courts in pretrial proceedings have resolved doubts under the
     standard in favor of the examining party.  See Atlantic Coast Insulating
     Co. v. United States, 34 F.R.D. 450 (E.D.N.Y.1964);  United States v.
     The Dorothy McAllister, 24 F.R.D. 316, 318 (S.D.N.Y.1959);  Rubin v.
     General Tire & Rubber Co., 18 F.R.D. 51, 56 (S.D.N.Y.1955);  Curry v.
     States Marine Corp., 16 F.R.D. 376, 377 (S.D.N.Y.1954);  4A J. Moore,
     supra, at P 30.55(1);  C. Wright, A. Miller, supra, s 2103, at 376.

  In the Manor Investment case, the individual designated as a managing agent
 was not shown to hold any office or formal position in the corporation.  He
 did, however, control its affairs, performing functions "of a supervisory
 nature" related to the activities in question.  More generally, the individual
 exercised "supreme" authority within the corporation.  Id. at 301.  In
 addition to having practical control of the firm's destiny, the individual
 owned all the stock in the enterprise.  In concluding that the individual was
 indeed a "managing agent" of the enterprise, Judge Weinfeld found "such unity
 of interest between [the company] and [the owner], that it may be referred to
 as his 'alter ego.' "  Id.  The learned judge thus drew on the familiar
 doctrine of law permitting courts, where the result would otherwise be unjust
 or inequitable, to pierce the corporate veil, [FN5] a veil that ordinarily
 shields investors from liability for contractual obligations or tortious acts
 by the corporation and that protects the corporation from being bound by the
 independent acts of investors.  See Labadie Coal Co. v. Black, 672 F.2d 92,
 96-100 (D.C.Cir.1982).  See generally Wormser, The Disregard of the Corporate
 Fiction and Allied Corporate Problems (1927);  Hamilton, The Corporate
 Entity, 49 Tex.L.Rev. 979 (1971);  Berle, The Theory of the Enterprise
 Entity, 47 Colum.L.Rev. 342-43 (1947);  Latty, Disregarding the Corporate
 Entity as a Solvent of Legal Problems, 34 Mich.L.Rev. 597 (1936).  Under the
 alter ego theory, the court may ignore the existence of the corporate form
 whenever an individual so dominates an organization "as in reality to negate
 its separate personality."  Quinn v. Butz, 510 F.2d 743, 758
 (D.C.Cir.1975).  The test is a practical one, focusing on how active and
 substantial the individual's control is.  Valley Finance, Inc. v. United
 States, 629 F.2d 162, 172 (D.C.Cir.1980).

      FN5. "[T]he fiction of corporate entity may be and should be disregarded
     in the interests of and to promote justice in such cases as fraud,
     violation of law or contract, public wrong, or to work out the equities
     among members of the corporation internally and not involving rights of the
     public or third persons."  Fletcher Cyclopedia Corporations s 25, at 305;
     see also W. Cary & M.E. Eisenberg, Cases and Materials on Corporations 80-
     103 (5th ed. 1980).

  For the purpose of determining whether an individual is a "managing agent"
 within the meaning of the discovery rules, the *1453 **59 alter ego theory
 provides a useful analogy.  As in the arena of corporate liability, the focus
 begins with the character of the individual's control.  In addition, we can
 profitably examine both the degree to which the interests of the individual and
 the corporation converge, and how helpful the individual will be in fact-
 finding on the matter at issue, in comparison to others associated with the
 corporation.  As in all matters appertaining to discovery, it is the ends of
 justice that are to be served.  See Fed.R.Civ.P. 1 (the Federal Rules "shall
 be construed to secure the just, speedy, and inexpensive determination of every
  [2] L. Ron Hubbard resigned from his official position as Executive Director
 of Scientology Churches in 1966, after serving for more than a decade.  He
 continued thereafter in the ostensibly nominal position of "Founder."  The
 Government offered abundant evidence in the District Court, however, that
 Hubbard played a uniquely prominent role within Scientology and various
 affiliated organizations from 1966 until the early 1980's.  As founder of
 Scientology and the sole source of its scriptures, Hubbard enjoyed authority
 difficult for the founder and owner of a garden-variety private business to
 attain.  Private, secular concerns may advance beyond the vision of its
 founder;  new talents may need to be secured as the cycles of the
 organization's development unfold.  It is not at all an unfamiliar situation
 for the entrepreneur--the visionary--to find inhospitable the administration of
 the vast enterprise spawned by his experimentation in the laboratory or
 workshop.  But an organization claiming to be a religion that is built upon the
 word of a single individual venerated by the flock of the faithful is, it
 scarcely needs to be said, a rather different sort of entity.  It is not
 disputed that, in the spiritual or ecclesiastical matters asserted to be the
 high mission of Scientology organizations, the word of L. Ron Hubbard has
 remained unquestioned.
  From evidence adduced below, Hubbard appears to have maintained control in
 administrative matters through high positions in such entities as the Sea
 Organization, "an elite fraternity of Scientologists."  Church of
 Scientology of California v. Comm'r, 83 T.C. 381, 389 (1984). [FN6]  Indeed,
 uncontested declarations before the District Court leave little doubt about
 either the ecclesiastical or administrative dimensions of Hubbard's authority
 during the period from 1966 to 1982.  The declarations of Diana Sue Reisdor-
 Voegeding and John Nelson, associates of Hubbard until 1982, describe the
 mechanisms by which Hubbard controlled operations of Scientology and its
 related organizations, passed on orders to subordinates, and sought to avoid
 prosecution for his ties to the Church.  J.A. at 395-403.  Beyond these
 declarations specifically cited by the District Court (J.A. at 429), the
 Government submitted other declarations bearing on the question of Hubbard's
 control.  Laurel Sullivan, an officer in the Scientology organizations from
 1973 to 1981, asserted that public pronouncements to the effect that Hubbard
 had at that time disassociated himself from the *1454 **60 Scientology
 organizations were "completely untrue," and that he in fact issued orders that
 were immediately obeyed.  J.A. at 208.  Kima Douglas, who worked at the Church
 from 1968 through 1980, declared that Hubbard exercised "complete control over
 the entire (Church) organization."  J.A. at 216.  Gerald Armstrong, another
 associate, told of a 1980 meeting to make plans to conceal Hubbard's
 acknowledged control over "all aspects of" the Church of Scientology of
 California.  J.A. at 222.  The Tax Court decision to which we just alluded, in
 denying the California Church of Scientology tax-exempt status for the years
 1970, 1971 and 1972, set forth detailed findings about Hubbard's relation to
 that organization along with the numerous other Scientology organizations.
 Church of Scientology v. Comm'r, supra.  The Tax Court harbored no doubt
 that Hubbard "kept control over" the policies, actions, and even the finances
 of the California Church.  Id. at 389; [FN7]  see also n. 6, supra.

      FN6. The Tax Court found that although Hubbard had officially resigned
     from his position as Executive Director of Scientology in 1966, he remained
     in the "top position."  Through the Hubbard Communications Office Policy
     Letters, he controlled the basic administrative policy of the California
     Church, the "Mother Church" of all Churches of Scientology in the United
     States, 81 T.C. at 389, 401.  Through various types of policy directives,
     including "Flag Orders," "L. Ron Hubbard Executive Directives," and "Orders
     of the Day," Hubbard directed operations in Scientology's subsidiary
     organizations.  Id. at 389.
     Hubbard also retained control over Scientology's financial affairs.  He was
     a signatory on all Scientology bank accounts.  His approval was required
     for all financial planning.  He was the sole trustee of a major Scientology
     fund.  He controlled Operation Transport Corp., Ltd., a sham corporation
     which purportedly performed banking services for "Flag," Scientology's
     administrative center.  Id. at 389, 399, 400.
     Further, Hubbard supervised "auditing," the process through which
     Scientologists help an individual gain "spiritual competence."  He also
     continued to develop Scientology doctrine, id. at 385, 389, as our
     subsequent discussion in the text will show.

      FN7. To be sure, the findings by various courts which have found
     themselves immersed in Scientology-related litigation have not been
     entirely uniform in this respect.  See Church of Scientology of
     California & Founding Churches of Scientology of Washington, D.C. v.
     Siegelman, No. 79 Civ. 1166 (S.D.N.Y. order dated Oct. 27, 1980)
     ("absence of any official connection" to Churches on the basis of evidence
     before the court prohibits compulsion of Hubbard as a witness), J.A. at

  Beyond the overall dominance that he exercised over the Scientology
 organizations during this earlier period, Hubbard was closely linked to, if not
 in charge of, the activities for which appellees initially sought his
 deposition.  The primary evidence about these activities emerges from the
 criminal prosecution in which seven members of the church, including Hubbard's
 wife, were found guilty of conspiracy to obstruct justice.  In that trial, one
 defendant was found guilty of conspiring illegally to obtain government
 documents, and another was found guilty of theft of government property.   See
 United States v. Hubbard, 650 F.2d 293, 301 (D.C.Cir.1980).  In a
 Stipulation of Evidence submitted in that case, the defendants recounted a
 full-fledged campaign mounted by the Church of Scientology and its affiliated
 organizations against the United States Government, particularly the Internal
 Revenue Service.  See Stipulation of Evidence, supra.  The conspiracy,
 involving all levels of the Church hierarchy, encompassed theft of government
 documents for use in litigation against the United States, falsification of
 government identification cards, wiretapping, infiltration and perjury.  See
 id.  The Stipulation indicated that Hubbard "was, by virtue of his role as
 the founder and leader of Scientology, overall supervisor of the Guardian's
 Office," a Scientology entity which carried out these illicit activities.
 Id. at 7.  Indeed, the grand jury named Hubbard as an unindicted co-
 conspirator in that case.  Those indicted and convicted included not only
 Hubbard's wife, who "as the second person in the hierarchy of Scientology, had
 duties which included supervision of the Guardian's Office," id. at 8, but
 several other officials occupying high posts in the Scientology hierarchy.
  The criminal case does not stand alone.  The Tax Court decision to which we
 previously referred denied the Church tax exempt status in part because of this
 conspiracy by the Scientology organizations, "beginning in 1969 and continuing
 at least until July 7, 1977."  Church of Scientology of California v.
 Comm'r, supra, 83 T.C. at 505.  Finding that the Church of Scientology of
 California "filed false tax returns, burglarized IRS offices, stole IRS
 documents, and harassed, delayed, and obstructed IRS agents who tried to audit
 the Church's records," id., the Tax Court held that the California Church
 had violated public policy and thereby lost entitlement to any exemption which
 it might otherwise have enjoyed.  83 T.C. at 506-09.
  Abundant evidence supports the proposition that Hubbard continued in his de
 facto position as head of the Church. [FN8]  Based on *1455 **61 the
 evidence in the record, the District Court rightly concluded that Hubbard was
 in a position to provide information about the conspiracy on behalf of the
 Scientology organizations for this purpose.

      FN8. We observe that other courts have reached inconsistent results in
     related cases concerning the managing-agent status of Hubbard in more
     recent years.  Three decisions, relying on many of the same declarations
     and documentary evidence presented in this case, found that Hubbard could
     be deposed as a managing agent.  Church of Scientology of California v.
     Armstrong, No. C420153 (Cal.Super.Ct. July 20, 1984), J.A. at 165-93;
     Church of Scientology of California v. Flynn, No. CV 83-5052R (C.D.Cal.
     Mar. 20, 1985) (finding Hubbard a managing agent through March 4, 1985),
     Supplemental Appendix ("S.A.") at 729-30;  Church of Scientology Int'l
     v. Elmira Mission of the Church of Scientology, No. CV 85-412T (W.D.N.Y.
     order dated Nov. 26, 1985), J.A. at 732-49.  A fourth court, upholding the
     finding of a United States Magistrate, concluded that Hubbard could not be
     considered a managing agent for purposes of Fed.R.Civ.P. 30 after
     December 9, 1983.  Religious Technology Center v. Scott, No. CV 85-711-MRP
     (C.D.Cal. order dated Jan. 24, 1986), J.A. at 773-75;  see also n. 4,

  To designate Hubbard as, at least prima facie, a managing agent, the District
 Court had to find it probable that he remained a managing agent for the
 Scientology organizations at the time his deposition was sought.
 Fed.R.Civ.P. 32(a)(2).  4A J. Moore, supra, P 32.04.  For the first
 scheduled deposition, Hubbard must have been, prima facie, managing agent as of
 November 1984;  for the second, as of April 1985.  Faced with overwhelming
 evidence of Hubbard's continuing control over Scientology as of 1982,
 appellants have sought to raise doubt whether Hubbard remained as managing
 agent after that time and specifically at the critical, later dates of the
 aborted depositions.  First, they emphasize that the declarants upon whose
 statements the Government relies held no positions in Scientology
 organizations after 1982.  Second, Scientology submitted numerous statements by
 its high officials to the effect that Hubbard had engaged in communications
 with Scientology's official organs only intermittently since 1982 and that he
 had not communicated with the Scientology apparatus since May 1984.  See, e.g.,
 Declaration of Marc Yager, J.A. at 437-39;  Declaration of Guillaume Lesevre,
 J.A. at 446-47.  Third, Scientology points to indications of organizational
 rearrangements around 1981-82, when Hubbard hired a law firm and a professional
 management agency separate from the Scientology network to handle his personal
 affairs.  See Declaration of Lyman Spurlock, J.A. at 457-58;  Declaration of
 Lawrence E. Heller, J.A. at 461-64.
  The narrow question to be explored is whether the District Court erred in
 holding it probable that Hubbard continued to exercise the authority of a
 managing agent for Scientology insofar as he retained authority to determine
 whether to govern authoritatively in either administrative or ecclesiastical
 affairs.  As noted above, Hubbard's role as managing agent up to approximately
 1982 is well established in the record.  A "general principle" in the law of
 evidence in such matters is that "a prior or subsequent existence is evidential
 of a later or earlier one."  2 Wigmore on Evidence s 437, at 514 (emphasis
 in original). [FN9]  In addition, the declarations of the church officials
 themselves, while denying Hubbard's role, [FN10] in fact implicitly confirmed
 that Hubbard, even after 1982, remained free at all relevant times to
 communicate to them whatever and whenever he wanted.  Indeed, the two times
 they agree that he did communicate with the entire Scientology apparatus, in
 December 1983 and January 1984, Scientology dutifully issued his
 *1456 **62 statements to its members, [FN11] exactly as if he remained in
 his undisputed position of authority.  Lesevre Declaration at J.A. 446;  Yager
 Declaration at J.A. 438-39.  As the District Court concluded, it appears
 without question that had Hubbard attempted to reassert his authority in other
 ways, Scientology officials would have accepted that exercise of dominion over
 the flock.  So far as we can discern, the record reveals no evidence that
 Hubbard intended to end his relationship with Scientology, but only that he
 wanted, in his unfettered discretion, to determine whether and how to continue
 that relationship.  Ultimate control, we have no doubt, he possessed until his
 death. [FN12]

      FN9. We recognize that a presumption of continuity in time may not hold as
     an absolute rule for relations of authority, see 9 Wigmore on Evidence s
     2530 (Chadbourn ed. 1981).  "[T]he rulings merely declare that certain
     facts are admissible, or that they are sufficient evidence for the jury's
     finding ... on such issues...."  Id.  (citations omitted).

      FN10. It cannot go unnoticed that these declarations were provided by
     individuals who owe their allegiance to an organization whose officials in
     the past have employed a number of devices, including deception and
     falsification, to achieve the organization's goals.  But needless to say,
     we are not in a position to weigh the veracity of the numerous declarants
     whose statements came before the District Court.

      FN11. Rons Journal 38, as the later communication was known, took the form
     of a tape recording distributed to local Scientology Churches and
     Missions.  See Transcript, transcribed December 18, 1984, J.A. at 355-93.
     In this message, apparently recorded on New Year's Day 1984, Hubbard
     reported that he was making available "the first accurate briefing I have
     had on scientology organizations in several years."  J.A. at 356.  The
     transcript suggests the way he continued to exercise such authority that
     amounted to control.  He noted that he had not "[f]or a very long while ...
     been connected" with the "demanding area" of "active management of the
     Church or associated organizations."  Id.  Yet, as the reason for this
     separation, Hubbard contended that he needed time to "complete my
     researches and write them up for you," id., an apparent reference to his
     pursuit of refinements in Scientology doctrine.  See also J.A. at 391-
     92 (announcing "new discoveries").  In the bulk of the 37-page transcript,
     Hubbard recounted in great detail the latest changes in the Scientology
     organizations, with comprehensive statistics about the state of finances,
     the growth of the organization, and efforts by "new executives" in the
     organization to "rebuild global scientology in every division and sector,
     get it back on policy and in tech" after an alleged attempt by "power crazy
     people" to take over the organization.  J.A. at 357-58.  In this
     communication, Hubbard alluded to "Rev. 352," or L.R.H. Ed. 352, J.A. at
     358-59.  In this statement from December 1983, Hubbard "gave an inkling" of
     the recent changes in the organization that Rons Journal 38 described in

      FN12. On January 27, 1986, over nine months after dismissal of this suit
     in the trial court, the Church announced that L. Ron Hubbard had died on
     January 24, 1986.  See J.A. at 718 (citing account in Washington Post).  As
     the parties have implicitly recognized, Hubbard's passing has no bearing on
     the questions before us.  We remain obligated to decide the appeal on the
     basis of the record before the District Court.

  The continued, undisputed possibility that Hubbard might unilaterally reassert
 his authority provided adequate justification for the trial court's holding.
 Courts have accorded managing agent status to individuals who no longer
 exercised authority over the actions in question (and even to individuals who
 no longer held any position of authority in a corporation), so long as those
 individuals retained some role in the corporation or at least maintained
 interests consonant with rather than adverse to its interests.  See, e.g.,
 Independent Productions Corp. v. Loew's, Inc., supra;  Fay v. United
 States, 22 F.R.D. 28, 31-32 (E.D.N.Y.1958);  Curry v. States Marine Corp.,
 supra, 16 F.R.D. 377.  But see Proseus v. Anchor Lines, Ltd., supra, 26
 F.R.D. 165.
  But we are satisfied that the District Court's holding in this respect rests
 on even stronger ground.  Hubbard continued through 1984 not only as the
 potential leader of the Scientology organization but as the actual leader.
 Even as Hubbard may have sought to distance himself, for whatever reason, from
 administrative details and to separate his personal business affairs from the
 Scientology apparatus, the evidence before the District Court demonstrated that
 Hubbard retained preeminence as spiritual or ecclesiastical head of
 Scientology.  The basic structure of belief for Scientology dictates that no
 one can replace him in this role. [FN13]  In this essential sense,
 *1457 **63 Scientology remained his alter ego despite the passive role he
 sought to assume.  In an organization which claims to derive its purpose from
 Hubbard's writings and sayings, the role that Hubbard continued to play in
 Scientology affairs could scarcely be viewed in law or in practical judgment
 as a figure of lesser status than that of managing agent.

      FN13. We are informed, without contradiction, that Scientologists
     uniformly agree that the writings of Hubbard comprise the sole source of
     their scriptures, a status equivalent to Judeo-Christian Scriptures.  See
     Declaration of Heber Jentzsch, J.A. at 279;  Yager Declaration, J.A. at
     435-36;  Lesevre Declaration, J.A. at 444;  Church of Scientology,
     Scientology:  A World Religion Emerges in the Space Age 52-55, District
     Court Exhibit 4(a)-A.  As Rons Journal 38 suggests, Hubbard viewed even his
     most recent "new discoveries" as authoritative truth to be passed on as
     church doctrine.  J.A. at 391-92.  The great detail in which Hubbard
     recounted in Rons Journal 38 the status of the church organization and its
     membership also suggests that despite the declarations of Church officials,
     Hubbard's role after 1982 may have encompassed at least some sort of
     advisory authority over the organization;  the communications about
     "dissemination and delivery of Scientology religious services," Lesevre
     Declaration at J.A. 446;  Yager Declaration at J.A. 438, which the
     declarants have not submitted for the record or described in detail,
     suggests the same.

  We recognize that the District Court's definition of "managing agent" imposed
 a greater burden on Hubbard if he truly wished to disassociate himself from the
 Scientology organization that might obtain for, say, the founder of a business
 enterprise.  Yet, Hubbard's status--as founder and spiritual leader of a
 movement that lays claim to the status of a religion--presents a unique
 situation in the application of traditional legal doctrines governing the
 relationship of individuals to organizations or associations with which they
 are or have been affiliated.  While an entrepreneur might simply terminate all
 connections to the enterprise that he or she had founded, Hubbard's teachings
 catapulted him to the epicenter of Scientology attention and activity.  During
 his lifetime, Hubbard remained an object of allegiance and veneration even if
 he did not maintain regular communication with the organizational vessel.
 Under these unusual circumstances, we have no hesitation in upholding the
 District Court's finding that the Government had shown, prima facie, Hubbard's
 status as managing agent of Scientology at the pertinent times.
  [3] The question remains whether the trial court properly dismissed this
 suit under Fed.R.Civ.P. 37(b)(2) by virtue of Hubbard's failure to appear at
 the April 1985 deposition.  As in other cases of dismissal imposed as a
 sanction, the applicable standard of review confines appellate inquiry to
 whether the District Court abused its discretion.  See National Hockey
 League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778,
 2780, 49 L.Ed.2d 747 (1976) (per curiam);  Aruba Bonaire Curacao Trust Co.
 v. C.I.R., 777 F.2d 38, 44 & n. 7 (D.C.Cir.1985) (dismissing suit under
 "analogous" Tax Court Rule 104);  Weisberg v. Webster, 749 F.2d 864, 870
 (D.C.Cir.1984) (dismissing suit under Rule 37);  Automated Datatron, Inc.
 v. Woodcock, 659 F.2d 1168, 1169 (D.C.Cir.1981) (dismissing counterclaim under
 Fed.R.Civ.P. 41(b)).  That is, needless to say, a rule of appellate
 restraint, a principle faithful to the reality that appellate tribunals cannot
 hope to have the entire range of considerations as readily at hand as the court
 charged with the case in the first instance.  We rightly pay great deference,
 as the abuse-of-discretion standard itself suggests, to the District Court's
 determination in such instances.  Implicit in that governing standard is the
 recognition that the trial court has a better "feel," as it were, for the
 litigation and the remedial actions most appropriate under the circumstances
 presented.  The Court of Appeals enters the fray only at the end of what may
 well be--and indeed was here--a lengthy process that moved step-by-step toward
 the disposition that prompts the challenge on appeal.  The abuse-of-discretion
 standard calls on the appellate department, in a spirit of humility occasioned
 by not having participated in what has gone before, not just to scrutinize the
 conclusion but to examine with care and respect the process that led up to it.
  [4] The pertinent text of Rule 37 provides that when "a party or an
 officer, director, or managing agent of a party ... fails ... to appear before
 the officer who is to take his deposition, after being served with proper
 notice ... the court in which *1458 **64 the action is pending on motion
 may make such orders in regard to the failure as are just," including
 "dismissing the action or proceeding or any part thereof."  Rule 37(b)(2),
  In reviewing dismissals under Fed.R.Civ.P. 37 and the closely analogous
 Tax Court Rule 104, we have consistently applied the rule of Societe
 Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d
 1255 (1958), requiring that the dismissal be based on "willfulness, bad faith,
 or ... fault" on the part of the plaintiff.  See Aruba Bonaire Curacao Trust
 Co. v. C.I.R., supra, 777 F.2d at 45;  Weisberg v. Webster, supra, 749 F.2d
 at 871.  While such a finding remains a prerequisite to imposition of the
 dismissal sanction, it is by no means the sole consideration relevant to the
 determination whether to dismiss the case.  As the Supreme Court has observed,
 a court does well to consider the deterrent effect a sanction will have on
 parties and potential parties in other cases who might otherwise contemplate
 abusive actions.  See National Hockey League, supra;  see also Shea v.
 Donohoe Construction Co., 795 F.2d 1071, 1077 (D.C.Cir.1986);  Aruba
 Bonaire, supra, 777 F.2d at 44;  Weisberg, supra, 749 F.2d at 870-71.
 Especially in cases of delay to the orderly progression of the litigation
 process, the fundamental concern of avoiding the squandering of scarce judicial
 resources (and the resources of other litigants) in an era of overcrowded
 dockets and untoward delays in getting cases decided is highly germane to
 whether a District Court should dismiss a case.  See Donohoe Construction
 Co., supra, at 1075-76;  Automated Datatron, Inc., supra, 659 F.2d 1168.
  In review of past dismissals under Fed.R.Civ.P. 37 and Tax Court Rule
 104, this court has had little trouble in finding the requisite bad faith or
 fault where the party has failed to respond to interrogatories, see Weisberg
 v. Webster, supra, or failed to appear at depositions without an attempt at
 explanation, see Aruba Bonaire, supra.  Here, despite the protestations of
 Scientology that it could not contact Hubbard, the District Court took
 Hubbard's absence at the April deposition to "supply the requisite 'element of
 willfulness or conscious disregard' for the discovery process which justifies
 the sanction of dismissal" (citing Dellums v. Powell, 566 F.2d 231, 235
 (D.C.Cir.1977)), J.A. at 475.  In our view, this treatment comported with the
 status of managing agent that the District Court properly attributed, prima
 facie, to Hubbard.  Since Scientology remained Hubbard's alter ego, notice
 to the organization could reasonably be construed as notice to him;  in
 consequence, the Church itself, as the party for which Hubbard was, prima
 facie, the managing agent, could be sanctioned for his failure to appear when
 ample advance notice was given of the importance of the deposition and the
 consequence that would attach from failure to attend to it. [FN14]

      FN14. We are thus not confronted with a sudden or precipitous action by
     the District Court, but to the contrary a carefully calibrated course of
     action designed to further the progress of prolonged litigation.  Nor are
     we faced with a situation where an innocent client may have suffered by
     virtue of the actions or omissions of an attorney.  See, e.g., Shea v.
     Donohoe Constr. Co., supra;  Butler v. Pearson, 636 F.2d 526
     (D.C.Cir.1980);  Jackson v. Washington Monthly Co., 569 F.2d 119

  The District Court also had ample reason to interpret the failure of Hubbard
 to abide by its order as evidence of "willfulness, bad faith or ... fault."
 Societe Internationale, supra, 357 U.S. at 212, 78 S.Ct. at 1096.  Appellees
 presented substantial evidence tha the arrangement by which Hubbard could
 communicate with the Church only at his initiative was in fact designed to
 shield Hubbard from legal process.  See Declaration of Gerald Armstrong, J.A.
 222;  Declaration of Diana Sue Reisdorf-Voegeding, J.A. 396-98;  Declaration of
 John Nelson, J.A. 202-03;  see also documents at J.A. 22, 32-36, 237-40.
 Coupled with representations by Church officials about their inability to
 contact Hubbard, this evidence could reasonably be interpreted by the District
 Court as indicating that Hubbard and the Church had structured their
 relationship *1459 **65 to frustrate the orderly process of discovery
  Dismissal, as we have had occasion to note, is "an extremely harsh
 sanction."  Trakas v. Quality Brands, Inc., 759 F.2d 185, 186
 (D.C.Cir.1985).  Dismissal before trial is, in many circumstances, "to be taken
 only after unfruitful resort to lesser sanctions."  Jackson v. Washington
 Monthly Co., 569 F.2d 119, 123 (D.C.Cir.1977).  The District Court nonetheless
 enjoys authority to impose this sanction even where "a less drastic sanction
 might have been entertained," Automated Datatron, Inc., supra, 659 F.2d at
 1169.  But in our view, it is unnecessary to embark upon a lengthy inquiry into
 possible alternative sanctions under the circumstances here.  No monetary or
 other sanction imposed on Scientology held out any realistic promise of
 overcoming the barrier Hubbard had chosen to erect between himself and the
 Church.  Nor would dismissal of a part of the suit or of the pleadings
 suffice.  The conspiracy the appellees alleged goes beyond the "unclean hands"
 defense as initially advanced in the District Court;  rather, the far-reaching
 conspiracy as alleged by the Government goes to the very essence of this
 lawsuit, providing, if true, the basis for law enforcement activities that
 Scientology has attacked as illegal. [FN15]  See n. 3, supra.

      FN15. Prior resort to lesser remedies is not in any event required
     regardless of the circumstances presented.  Here, a clear order of the
     court was issued only after the party seeking discovery had been put to the
     test of demonstrating a need for the deposition.  We emphasize the
     importance in our review of the care and deliberativeness evidenced by the
     District Court in moving to invoke a sanction, expressly authorized by the
     Rules, only after a crystal clear warning of the sanction to be imposed had
     been provided.

  To be sure, had defendants been able to secure the information they sought
 from a source other than Hubbard, the sanction of dismissal would have been
 less clearly appropriate.  But that condition did not obtain here.  Based upon
 the record before us, we agree with the District Court's conclusion that
 Hubbard himself was "uniquely situated to provide information" relevant to the
 actions of Scientology against the Government.  J.A. at 475.  We do well to
 remember that for most of the era--in the period up to 1978--with which this
 lawsuit is concerned, there can be no reasonable doubt that Hubbard was
 Scientology's managing agent.  So long as this was the case, Hubbard was the
 one individual likely to be best informed about the role that the conspiracy
 (as chronicled in the documents from United States v. Mary Sue Hubbard)
 played in the Scientology organization.  Under those circumstances, his
 deposition was of critical importance.  His failure to comply with a clear
 directive of the District Court, an order accompanied by an express threat of
 dismissal, warranted the sanction imposed by the District Judge in the exercise
 of her sound discretion.

End of file...