Some Comments on the Asoka and Agondonter Subpoenas
by David KantorIn regards to Urantia Foundation's expanding legal assault on the readership, many people have asked, "Why would Urantia Foundation do such a thing, particularly at this sensitive juncture when community relations were on the road to repair?" Following is a possible rationale.
These subpoenas are served as part of the case which the 9th Circuit Court of Appeals has sent back to District Court "for the determination of damages."
So what is the Foundation after in this upcoming District Court trial? In the Colorado lawsuit (as opposed to the one in Arizona), the Foundation has advanced the argument that Kristen was "virtually represented" by Eric, and therefore when Eric took actions which they viewed as violating the settlement agreement, Kristen had thereby violated the settlement agreement as well. Here's what their complaint said:
"(4) that the interests (primarily, alleged religious interests) of Maaherra and Schaveland are so closely aligned, and their allegations, both in the previous litigation and in this case, are so similar that Schaveland was "virtually" represented by Maaherra (and her counsel) in the previous litigation; and
"(5) under the circumstances, it would be a waste of the time, effort, and resources of all parties and the Court to relitigate issues which were or could have been raised in the previous litigation between the Foundation and Maaherra. Accordingly, as explained in greater detail below, the Foundation requests that the Court grant this motion and dismiss with prejudice the affirmative defenses and counterclaims of the defendants which were or could have been raised in Urantia Foundation v. Maaherra, in the United States District Court for the District of Arizona." (Brief in Support of Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds, February 20, 1997)
The Foundation is preparing to extend this argument so that either all (or selected individuals) who contributed to Kristen's defense are deemed to have been "virtually represented" in the Maaherra case, and hence are subject to the permanent injunction which they are seeking against Kristen. The existence of such a permanent injunction would place any of those individuals at a serious legal disadvantage should the Foundation subsequently elect to sue them, for example, for exceeding their conception of fair use in using Urantia Book quotes. Such a permanent injunction would provide a powerful tool for the Foundation to intimidate those subject to the injunction with contempt of court proceedings.
There is no legal purpose for the subpoenas other than to use the information so obtained in an effort to include the donors within the scope of the permanent injunction the Foundation is seeking.
The Foundation sought the exact same information earlier in the Maaherra case, and in so doing revealed the only possible basis for their similar requests to Asoka and Agondonter. Consider the following history:
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In October, 1994, the Foundation posed the following interrogatories to Maaherra:
Interrogatory No. 1
Identify all persons with whom you have communicated or who have communicated with you regarding this action, state the subject matter and summarize the substance of each such communication, and identify all documents which evidence, refer or relate in any way to each such communication.
Interrogatory No. 2
Identify all persons with whom you have communicated or who have communicated with you about the tactics or strategy you are pursuing in defense of the Foundation's claims or in prosecution of your counterclaims in this action, state the subject matter and summarize the substance of each such communication, and identify all documents which evidence, refer or relate in any way to each such communication.
Interrogatory No. 3
Identify all persons who have prepared, revised or commented on any part of any document you or anyone acting on your behalf has filed or served in this action, identify the documents which each such person prepared, revised or commented on, and, if the person was not your attorney of record, describe what he or she did and identify all other documents which evidence, refer or relate in any way to what the person did.
Interrogatory No. 4
Identify all persons who have contributed any money used to pay your attorneys fees, costs or expenses of litigation incurred in connection with your defense of the Foundation's claims in this action, or in connection with the prosecution of your counterclaims in this action, or who have volunteered their services or otherwise contributed to your defense of the Foundation's claims or the prosecution of your counterclaims in this action, and identify all documents which evidence, refer or relate in any way to such persons' contribution to your defense or the prosecution of your counterclaims in this action.
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Maaherra refused to answer the interrogatories.
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In an attempt to persuade Judge Urbom to compel answering, Foundation attorney Dale Owens set forth the basis for the Foundation's requests in a letter to Judge Urbom dated November 22, 1994, saying, in part:
"The primary thrust of this discovery is to determine the extent to which there are other persons who are participating in this lawsuit using Ms. Maaherra as a "front" for their generalized attacks on Foundation policies.
"The information requested in this discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence. For example, this information is relevant to the question of who will be bound by the outcome of this litigation. As discussed more fully in [refs. deleted], a judgment not only is preclusive as to named parties but can be preclusive as to non-parties who participate to a sufficient degree in the litigation, either openly or secretly."
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On December 20, 1994, Judge Urbom rendered a decision on the matter, extracts of which follow:
"The plaintiff, Urantia Foundation, has, through the use of interrogatories and personal letters, requested that the defendant, Kristen Maaherra, provide it with information on nonparties to this lawsuit. The defendant objects to the disclosure of the information and refuses to provide it. Although the plaintiff has not filed a motion for an order compelling disclosure, I will treat the plaintiff's personal letters as such a motion. Upon review of the interrogatories and the applicable case law, I find that the defendant is not required to disclose the information sought.
"In the instant case, the plaintiff is attempting to acquire information that may be used in a possible future case. Although the plaintiff's foresight is admirable, the requests are simply too general and too broad to be legitimate. They are also more relevant-perhaps only relevant-to a future action, rather than the "pending action." Furthermore, information of the names of persons who have discussed legal tactics or contributed money is only dimly calculated to lead to the discovery of evidence admissible in this case. Therefore, I will not require Ms. Maaherra to provide the plaintiff with the names of every individual who has, by word or deed, contributed to her defense, for, unless the non-party plainly has "a sufficient 'laboring oar' in the conduct of the . . . litigation," he or she will not be bound by the judgment. [refs. deleted]. Whether the non-party has such a laboring oar can as well be learned in any future lawsuit as in this one.
"IT IS THEREFORE ORDERED that the defendant may refrain from providing answers to the Plaintiff's Second Set of Interrogatories, Numbers 1, 2, 3, and 4."