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Case 8:13-cv-00220-JDW-TBM Document 149 Filed 01/17/15 Page 1 of 6 PageID 3054

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LUIS A. GARCIA SAZ, and wife, MARIA
DEL ROCIO BURGOS GARCIA,
Plaintiffs,
vs.

CASE NO. 8:13-CV-220-T27 TBM

CHURCH OF SCIENTOLOGY RELIGIOUS


TRUST; et al
Defendants.
________________________________________/

EMERGENCY MOTION FOR PROTECTIVE ORDER, OPPOSITION TO


PLAINTIFFS MOTION TO COMPEL AND INSTANTER MOTION FOR
TEMPORARY ADMISSION OF COUNSEL FOR DEPONENT
TO MIDDLE DISTRICT OF FLORIDA BAR
The Church of Scientology International and Mike Ellis, by their undersigned counsel,
file this Motion for a Protective Order regarding the deposition of Mike Ellis, respond to
plaintiffs motion to compel the deposition of Mike Ellis, move for instanter admission to the
local bar and state:
This is an opposition to Plaintiffs Motion to Compel and an emergency motion for
protective order to modify a deposition subpoena to change the location of a scheduled January
23, 2015 deposition from Tampa, Florida to Los Angeles, California at a mutually agreeable
date. The Motion for Protective Order is brought by non-party Mike Ellis, a full time Los
Angeles, California resident and the International Justice Chief of non-party Church of
Scientology International, (CSI). The Motion is brought on an emergency basis because there
has been a recent change of circumstance whereby the only means of avoiding undue burden and

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health risk to the witness is to invoke his statutory right to the 100 mile travel limitation of
FRCP, Rule 45(c)(3)(A)(ii).1
Travel from California to Florida will impose an undue hardship and risk to Mr. Ellis
physical health. Mr. Ellis has been diagnosed with angina pectoris and has been ordered by his
cardiologist not to travel. (See Declarations of Mike Ellis and Gary S. Soter, attached.)
Moreover, in the absence of a protective order modifying or quashing the subpoena, Mr. Ellis
and his California counsel will be required to travel more than 4,300 miles between Los Angeles,
California and Tampa, Florida for a limited deposition with an anticipated length not to exceed
three to four hours on Friday, January 23, 2015.
Pursuant to the Courts November 14, 2014 order allowing for discovery in advance of
the February 18, 2015 evidentiary hearing, Defense counsel requested non-party Church of
Scientology Internationals agreement to produce its International Justice Chief for deposition in
Tampa instead of Los Angeles where he resides and works full time. CSI agreed to promote
economy and efficiency because three other depositions were scheduled in Tampa for the same
week. Plaintiff agreed to pay for IJCs travel expenses. IJC agreed to travel to Tampa for a
January 7, 2015 deposition.
On December 23, 2014, Plaintiff served defense counsel with a subpoena commanding
Mike Ellis to testify at a deposition in Tampa, Florida on January 7, 2015. (Soter Declaration,
3).
Rule 45(c)(3)(A) provides that on timely motion, the issuing court must quash or
modify a subpoena that requires a person who is neither a party nor a partys officer to travel
more than 100 miles from where that person resides, is employed or regularly transacts business
in person. There are no statutory exceptions to the 100 mile limitation. FRCP, Rule 45(c)
provides that A party or attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.
The issuing court must enforce this duty . . .
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On December 25, 2014, Mr. Ellis became ill. He suffered from coughing, sneezing,
aches and heavy congestion for more than one week. On January 3, 2015 Mr. Ellis physician
diagnosed bronchitis and bilateral otitis media. He received and took an antibiotic prescription.
The doctor instructed Mr. Ellis not to fly for two weeks until the ear problem had completely
resolved. Accordingly, the January 7 deposition of Mr. Ellis was taken off calendar (as well as
the scheduled deposition of Mr. Garcia). These depositions were later rescheduled for January
23 again in Tampa, at the insistence of Plaintiffs counsel, even though Mr. Ellis and Mr. Garcia
both live in the Los Angeles area.
Mr. Ellis has largely recovered from his respiratory illness and ear infection. However,
other health issues have recently arisen. Mr. Ellis weighs 315 pounds, suffers from high blood
pressure, fatigue and tightness in his chest. He was seen by a cardiologist on January 16, 2015.
The cardiologist obtained a history, conducted an examination, diagnosed angina pectoris and
told Mr. Ellis that he was unable to travel. Further diagnostic testing is scheduled for next
week. (Ellis Declaration, 5, Exhibit 1).
In addition to health concerns, Mr. Ellis, as the International Justice Chief of Church of
Scientology International, is the most senior executive over justice matters. Mr. Ellis oversees
ecclesiastical justice disputes involving churches, missions, staff and parishioners in
approximately 150 countries. Having been off his job for several days due to his recent illness,
he is backlogged and has many justice matters that urgently need to be addressed.
Mr. Ellis stands ready and willing to provide deposition testimony and merely requests a
change of location to Los Angeles where he lives and works full time. He will make himself
available on any day that is convenient for the parties.

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Although the deposition of Mr. Ellis was originally scheduled in Tampa to minimize
expense and maximize efficiency in order to coordinate with the depositions of three other
witnesses, the only other witness depositions which are now scheduled and not yet taken are for
residents of the State of California. Whereas it was originally in the interests of economy and
efficiency to schedule the deposition of Mr. Ellis in Tampa, that is no longer the case. More
importantly the deposition in Tampa risks Mr. Ellis health.
On January 16, 2015 counsel for Ellis conferred with counsel for Plaintiff (Mr. Babbitt)
by telephone in an attempt to resolve this dispute concerning deposition location prior to filing
this Motion for Protective Order. Mr. Babbitt was informed of Mr. Ellis health issues and work
load. In that telephone conversation CSI offered to bear the entire expense of a certified
shorthand reporter and a live audio-video feed from Los Angeles to Tampa but Mr. Babbitt
insisted that Mr. Ellis travel to Tampa, Florida for his deposition instead. Mr. Babbitt explained
that he did not want to waste four days of his time traveling back and forth and that he wanted to
confront Mr. Ellis in a face to face deposition rather than through a live video feed. Mr. Babbitt
was told that Ellis would be filing a Motion for Protective Order and that he did not need to file a
Motion to Compel. Nevertheless, Plaintiff filed a Motion to Compel within three hours and
failed to serve Ellis or his counsel with a copy of the Motion. (See, Soter Declaration, 6)
INSTANTER MOTION FOR TEMPORARY ADMISSIONOF COUNSEL FOR
DEPONENT TO MIDDLE DISTRICT OF FLORIDA BAR
Counsel for Mr. Ellis requests leave of court to specially appear for Mr. Ellis under the
authority of RULE 2.02(d) SPECIAL ADMISSION TO PRACTICE which provides in pertinent
part as follows:
A lawyer who is not a member of the Middle District bar may move instanter for
temporary admission provided the lawyer appears eligible for membership in the Middle
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District bar and simultaneously initiates proceedings for general or special admission to
the Middle District bar.
Counsel for Mr. Ellis is a member in good standing of the California Bar and the Federal Courts
in the State of California (see supporting Declaration) and is in the process of filing an attorney
registration form and paying the required membership fee.
CONCLUSION
Mr. Ellis has substantial health issues. He has been ordered by his cardiologist not to
travel. The health issues arose after defense counsel made arrangements for the deposition in
Tampa. Travel between Los Angeles and Tampa to attend a three to four hour deposition is
unduly burdensome especially in consideration of Mr. Ellis health. The court is respectfully
asked to grant this Motion for Protective Order and schedule the deposition of Mr. Ellis in Los
Angeles at a time and date convenient to the parties and the witness.
COMPLIANCE WITH LOCAL RULE 3.01(g)
The undersigned (Gary Soter) certifies that a good faith conference with Plaintiffs
counsel (Ted Babbitt) has occurred in an effort to resolve the issues raised by this motion and
Plaintiffs counsel has indicated that he opposes this Motion. (See Declaration of Gary S. Soter,
6, filed contemporaneously).

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 17, 2015 I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic
filing to the following:

AMANDA MCGOVERN, ESQ., amcgovern@wqmlaw.net. and

THEODORE BABBITT, ESQ., tedbabbitt@babbitt-johnson.com, attorneys for plaintiffs; F.


Wallace Pope, ESQ., wallyp@jpfirm.com, attorney for defendants.
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/s/ Robert V. Potter


Robert V. Potter
FBN #: 0363006
Johnson, Pope, Bokor, Ruppel & Burns, LLP
911 Chestnut Street
Clearwater, Florida 33757
Telephone (727) 461-1818
Facsimile (727) 441-8617
Primary:
bobp@jpfirm.com
Secondary:
janm@jpfirm.com
Local Counsel for Church of Scientology International and Mike Ellis
Gary S. Soter
CaliforniaBar No.67622
E-Mail:garysoter@garysoterlaw.com
22287 Mulholland Highway #169
Calabasas, CA. 91302
Telephone: (323) 960-1909
Facsimile: (818) 530-4352
Lead Counsel for Church of Scientology Intl and Mike Ellis
2281253