Declaration of Daniel A. Leipold in support of motion to amend pretrial order to name new witnesses pursuant to F.R.C.P. 16(e) and to reopen discovery

[December 11, 1998]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 95-K-2143

BRIDGE PUBLICATIONS, a California non-profit corporation,

    Plaintiffs,

V.

F.A.C.T.NET, INC., a Colorado nonprofit corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual,

    Defendants.

DECLARATION OF DANIEL A. LEIPOLD IN SUPPORT OF MOTION TO AMEND PRETRIAL ORDER TO NAME NEW WITNESSES PURSUANT TO F.R.C.P. 16(e) AND TO REOPEN DISCOVERY

I, Daniel A. Leipold declare as follows:

1.    I am an attorney at law duly licensed to practice before the Federal and State Courts of California and I am also admitted to practice before the United States District Court for Colorado. I am the attorney representing Lawrence Wollersheim in this matter. I have personal knowledge of all facts contained within this declaration, except those that are stated on information and belief. If called to testify to any fact contained within this declaration, I would and could be competent to do so.

2.    On November 3, 1998 I initially contacted Todd Blakely pursuant to D.C. Colo. L.R. 7.1A to advise him of the defendants' intention to file a motion to reopen discovery and amend the pretrial order to names additional witnesses. Mr. Blakely contacted me and inquired as to the names of the witnesses in question. I did not advise him of the names of the witnesses at that time as several of the proposed witnesses had expressed great fear at taking a position that was adverse to Scientology. Within several days of my conversation with Mr. Blakely at least one of the proposed witnesses refused to testify.

3.    On November 27, 1998 I faxed another letter to Mr. Blakely pursuant to D.C. Colo. L.R. 7.1A to advise him that defendants intended to move the court to reopen discovery and amend the pretrial order. The facsimile specified the names of all witnesses and the scope of the proposed discovery.

4.    As of the time that this declaration is being prepared I have received no response from Mr. Blakely.

5.    In mid to late October of 1998 I had a telephone conversation with Mark Plummer. Mr. Plummer is an ex-Scientology staff member who left Scientology staff in 1983. Initially the conversation had absolutely nothing to do with this case but, rather, focused on how ex-Scientologists could retrieve money they had turned over to various Scientology entities. During the course of this conversation, Mr. Plummer advised me that he had been in the finance division of Scientology and had acquired some original policy documents pertaining to refunds. I inquired of Mr. Plummer as to whether he had any Scientology policy letters or Bulletins that did not have copyright notices on them.

6.    Mr. Plummer advised me that he had culled his files looking for uncopyrighted originals some months ago at the request of Morrison and Foerster, attorneys for Dennis Erlich. Mr. Erlich is a defendant in an action for copyright infringement in the United States District Court for the Northern District of California. Plaintiff herein, BPI, is also a plaintiff in the action in northern California against Mr. Erlich.

7.    I obtained Mr. Plummer's permission to contact Morrison and Foerster, and my office shortly arrived at an agreement with informed by Morrison and Foerster to obtain custody of the original documents in question. My office did, in fact, receive those documents at the very end of October 1998.

8.    The documents referred to in Mark Plummer's declaration were included in the documents we received from Morrison and Foerster. The originals are in the possession of my office. The copies of those documents filed herewith are true and correct copies of the originals with the exception that our office has typed the words "DEFENDANTS' ORIGINAL" at the top and the words "NO COPYRIGHT NOTICE" where the copyright notice appears on the BPI-submitted "L. RON HUBBARD ORIGINAL."

9.    After BPI's summary judgment motion was denied on November 5, 1998, I continued to search for uncopyrighted originals and was informed that a large collection of these documents existed at the University of Alberta, Canada. I had no knowledge of this collection of original works prior to that time, despite the fact that I had known Dr. Steven Kent (an expert in this case and the person who retained that cache of original documents) for a number of years. Dr. Kent is a professor of Sociology at the University of Alberta.

10.    I have had some of the University of Alberta documents examined by our expert, Robert Vaughn Young. As his declaration explains, he has found a number of documents that were published without copyright notice and thus differ materially from the versions submitted by BPI in support of its summary judgment motion, which documents do contain copyright notice.

11.    Within the last three days prior to the date of this declaration, I have located and obtained additional originals that predate the copyright registrations. This collection of documents has also been partly reviewed by Mr. Young and found to have documents published without copyright notices despite the fact that the BPI "L. Ron Hubbard Originals" contain copyright notices. Our offices are continuing to review originals and compare them to the BPI submitted copies.

12.    Attached to the motion to reopen discovery as Exhibit "D" is a true and correct copy of Magistrate Judge Abram's ruling of May 11, 1998 regarding defendants' prior Rule 16(b) motion.

13.    Attached to the motion to reopen discovery as Exhibit "E" is a true and correct copy of the declaration of Graham Berry submitted in conjunction with the defendants' Rule 56(f) motion of February 7,1997.

14.    Attached to the motion to reopen discovery as Exhibit "G" is a true and correct copy of an excerpt from the deposition of Vicki Aznaran taken on June 22, 1988 in Aznaran v. The Church of Scientology of California, et. al., USDC for the Central District of California, CV88-1786-WDK.

15.    Attached to the motion to reopen discovery as Exhibit "I" is a true and correct copy of an excerpt of the deposition of Ryland Hawkins, taken in this case on July 23,1996.

16.    Attached to the motion to reopen discovery as Exhibit "F" is a true and correct copy of the Affidavit of Jesse Prince , prepared and filed in opposition to BPI's summary judgment motion herein; the original is located in this Court's file.

17.    Attached hereto as Exhibit "J" is a true and correct copy of pertinent pages of the application for tax exemption under Revenue Code Section 501(c)(3) of The Church of Scientology International (CSI), which pertain to the Church of Spiritual Technology (CST).

18.    The CSI/CST tax records reveal the very purpose of the church CST is "preservation program-to protect the Scriptures of Scientology in their original written and spoken words..." (CSI Prod 11-4-93 BATES# 156111). In furtherance of this "preservation program" CST "Teams" were sent to search over 85 separate church locations in 19 different countries. Every desk, closet, box, file cabinet, attic, basement, and garage was searched.... In all, over 40,000 man-hours were devoted to this project over several years." (CSI Prod 11-4-93 BATES# 156112). "First the originals were put through an exhaustive verification process in which the authenticity was checked several times." (CSI Prod 11-4-93 BATES#156113). "The original Scriptural writings, some 500,000 pages, were inventoried, indexed and put in individual acid free file folder to help arrest further deterioration." (Supra, at BATE# 156113.)

19.    Filed herewith in support of defendants' motion to reopen discovery, is a series of 28 blue folders. These folders are marked so as to correspond to the exhibits filed in support of plaintiff's motion for summary judgment.

20.    The blue folders were put together by my office. I personally reviewed each blue folder submitted herewith.

21.    Each blue folder contains three documents:

a.    A "Defendants Original" filed on the left side of the folder.

    b.    An "L. Ron Hubbard Original" which is a true and correct copy of the document submitted by the plaintiff in support of BPI's motion for summary judgment.

    c.    A true and correct copy of the copyright registration certificate filed by the plaintiff which corresponds to the "L. Ron Hubbard Original".

22.    Items b and c are each filed on the right side of the blue folders with the L. Ron Hubbard Original" on top.

23.    The "Defendants' Original" is a true and correct copy of an original Scientology issued document that our office obtained since mid-October of 1998. These Scientology originals were not copied out of compilations, but rather were individually issued and published.

24.    The "Defendants' Original" varies from the originals in the possession of my office in that each have the words "DEFENDANTS' ORIGINAL" at the top and also contains the notation "NO COPYRIGHT NOTICE" on them.

25.    Our office placed these notations on the "DEFENDANTS' ORIGINALS" for the Court's convenience in comparing the "DEFENDANTS' ORIGINALS" to the corresponding "L. RON HUBBARD ORIGINAL" that was filed with the Court and the United States Copyright Office.

26.    Each "L. RON HUBBARD ORIGINAL" filed by the plaintiff and submitted herewith contains a copyright notice despite the fact that the "DEFENDANTS' ORIGINAL" which predates the date of the copyright registration contains no such notice.

27.    The only exceptions to the system outlined above is contained in the blue folders C-4, C-36, C-118 and C-148. The "L. RON HUBBARD ORIGINALS" submitted by plaintiff did not contain a copyright notice. These blue folders are submitted to the Court to illustrate that the documents in question were published long before the date contained on the copyright registrations.

28.    Lest the plaintiff argue that Exhibits C-4, C-36, C-118 and C-148 were not published within the meaning of the copyright law, I have attached hereto as Exhibit "C" a true and correct copy of "SCIENTOLOGY POLICY DIRECTIVE 17RB DATE 27 JUNE 1982." For the Court's convenience the headings "PUBLICATION" and "DATE OF FIRST PUBLICATION" have been highlighted.

29.    Attached to the motion to reopen discovery as Exhibit "H" is a true and correct excerpt from the deposition of Norman Starkey, taken in this matter on June 29, 1998.

30.    For the Court's convenience, attached hereto as Exhibits "A" and "B" are true copies of the Pretrial Order and the Amended Pretrial Order entered in conjunction with this case. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

    Executed this 30th day of November, 1998 at Santa Ana, California.

(signed) DANIEL A. LEIPOLD