Trying to depose Salesians: “It appeared that a line was drawn in the sand and I assume it is because these are critical witnesses in the case”

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By Kay Ebeling
Coming through security at Superior Court Wednesday I kept my shoes on and when the beeper went off I stood, raised my arm, said, “It’s just the pin and the shoes.” No panic attack, (see September 21 post) no removing every possible metalic thing to avoid the baton, although I did get good advice from “Anonymous Reader” who suggested

“If you are having anxiety, please ask Bishop Tod Brown to send you to Southdown up in Canada with Monsignor Urell!”

Arrive at court, clerk is in midst of taping a newly printed version of calendar outside the door, as plaintiff’s Motions to Compel Depositions had iexplicably disappeared from the calendar (Deja Vu) then been penned back on as Number 12. Inside as we wait for the judge, a plaintiff attorney reads the tentative then nods to me, yes it was granted.

I watch Church Attorney Steve McFeely and my first urge is to write something nasty but he looks so vulnerable and defeated as he reads. Plaintiff Attorney Helen Zukin walks up to him and puts her face right in front of his as she speaks. McFeely is so crushed, deflated, looking into her face -- Helen has one of those striking faces that make you just stop and gaze, obviously a gift from God, and she uses all her assets. McFeely, very central casting for Irish Cop, nods and agrees to whatever it is Zukin is saying.

HEARING

JUDGE HALEY FROMHOLZ: 1st is regarding Father Schafer and Reina anything to add?

MCFEELY: There is. I’m troubled by the fact that neither plaintiffs nor court deal with any of the issues that were raised in the objections

In particular speculation. These men one born in 1947 are being asked about things that happened in 1947. Plaintiff’s council says it’s relevant, sure it’s relevant but it’s speculation.

(ME: At this point I twitch a little, but then smile. I’m trying to give this Church Attorney a chance, and he looks much more like my Uncle Pete [the old Irish cop he was] than that other church attorney from Hennigan’s office. His tone of voice is getting nasty but I’m trying to describe him still as down home, sort of. . . . )

MCFEELY: Maybe there wasn’t a policy or procedure in effect in 1947, and if there was, whether it’s relevant or not these men aren’t going to know that. They weren’t there. This line of questioning in appropriate and harassing.

JUDGE: Alright, Miss Zukin, re Relevant but too attenuating?

ZUKIN: The crux is notice. What they did or didn't do. We have testimony that a document was in this perpetrator’s file when he first came to the order.

Plus Father Schaffer has been there for many-many years in many capacities and both have held a variety of leadership roles

(ME: Hmm, they seem to switch roles a lot, haven’t we heard that before? Hmm.)

ZUKIN: They have knowledge of current and historical policies. They would know how things were done in the past or be able to direct us to who might know. It all goes to the crux of the case which is notice.

MCFEELY: If you want to know what the rules and procedures were, ask. She didn't. That's not what the objections are here. If they want to know about somebody who was there in 1947 ask it. We're here about the speculation they were asked to participate in.

JUDGE; Okay now 2: Deposition re --

MCFEELY: As the court may know I’m getting in late in the clergy one game here --

(ME: Right. He was defending the Salesians in San Francisco in 2006, fighting Joey Piscitelli and others in the Bay Area for years before that. Now he says he hasn’t been paying that much attention to what's been happening in LA for the last three years?)

MCFEELY: And now I’m getting more familiar with what the rules are. We've lived through Canadian depositions dropped on our doorstep. Now we understand that with this tentative you'll agree to a set specific date for depositions -- we need time to prepare witness and travel plans. If it’s a problem it’s a problem and we're dealing with this right as we prepare for trial.

(ME: Then he drops a big one)

MCFEELY: Your honor, tomorrow morning you can count on it there will be the 13th ex parte on this deposition in two months. I suggest what they did with these in August dropping them off and moving them off, was in appropriate.

(ME: Okay that does it.

This guy has descended into low blows and I hate to say this but this sounds sexist to me. The tone of his voice is pure:

Here she is this nagging female nagging and nagging

It’s called being persistent when a defendant is obstructing justice.

But because it’s a female attorney, McFeely is using his tone of voice to get the judge to agree it’s just a female nagging.

SO NOW IT’S TIME TO PASTE BACK IN THAT NASTY NOTE I CUT OUT BEFORE THE HEARING BEGAN:

I watch McFeely read the tentative where the motion he fought was granted. I want to warn him about how expressions etch into a face, and if you look angry and mean all the time as you age your face begins to look more and more like a Halloween fright wig.)

BACK TO HEARING

ZUKIN: The trial date (had to be) continued. One of the reasons we needed it continued was to get the Stockton personnel file of the perpetrator. We do not have those documents yet. For one of those deposition the telephone hearing was set and it was the only date

(Details details details)

(ME: Zukin, unfortunately, fell for McFeely’s trap. He treated her like a nagging wife and she started going on and on about details like a nagging wife did. But she didn't sound like one. She can’t. Not with that face. . . . )

ZUKIN: I notified that because we didn't have the documents and because trial date just continued, we needed a continuance until we got the documents.

No one wanted to engage in discussion with me and I sent an email about that. This surprised me because in most deposition there is cooperation back and forth.

(IMPORTANT POINT:)

ZUKIN: But for these two (DEPOSITIONS OF MICHAEL J. ALVAREZ & THOMAS PRENDERVILLE) it appeared that a line was drawn in the sand and I assume it is because these are critical witnesses in the case.

REPEAT: It appeared that a line was drawn in the sand and I assume it is because these are critical witnesses in the case

MCFEELY: Again it has to do with how we present to the court. Mr. Alvarez is being described by plaintiffs as being an important witness, a key witness. This is 2007. He runs the school defendant high school.

(ME: I love that “Defendant High School.)

MCFEELY: He knows nothing about what happened in 1947 or 1957 or 1965. I have to raise this issue now, your honor, because we're apparently going to keep coming back here until the trial date November 5.

(ME: THERE IT IS! He’s coming right out and admitting they're going to obstruct and obstruct right up to the date of trial.)

MCFEELY: I hope we can support our assertions without just asserting them. To say he’s a key witness--

JUDGE: I would expect depositions on both sides to be leading to relevant information. And if the witness has nothing to say it would be a very short deposition.

REPEAT: If the witness has nothing to say it would be a very short deposition.

SO NOTHING MCFEELY IS SAYING is relevant.
He’s going on and on predicting that these witnesses will have nothing to say instead of just letting the plaintiffs ask the witness, do you have something to say?

If the witnesses don’t have anything to say, end of deposition.

That's what the judge is trying to get across, but Fromholz should know by now logic doesn't have anything to do with defendants’ arguments when what they're trying to do is prevent information from coming out by any means possible.)

JUDGE: I don't want to be involved in all the discovery disputes that arise. Council is obligated to conduct discovery in professional manner that doesn't affect either side.

(ME: I’m not sure which side he’s scolding here, and from my perspective he should have been looking straight at McFeely, not at both of them. But there may be things I don't know. McFeely does not return my calls.)

EXPARTE AFTER EXPARTE

Here’s the part I don't know about. McFeely is claiming that day in and day out Zukin requests ex partes, in other words sessions with the attorneys and the judge in chambers where the public (i.e., me) can’t observe.

I go document diving after the hearing and don’t see any streams of ex parte motions in the database, but not everything gets scanned in right away. . . .

JUDGE: If there is another discovery dispute going to be brought in tomorrow morning on an ex parte basis --

(ME: As McFeely predicted in his earlier rant, "Helen Zukin just files ex parte after ex parte." Funny, there should be a few of them then at least in the public documents by now if it’s been going on that way for months as he implies. I didn't see any when I looked for them. . . )

JUDGE: -- I would hope that you could talk about it before you leave here and make that ex parte unnecessary. I’ve been liberal about accepting these ex partes in the clergy cases, but we’ve pared away a lot of cases here. The Salesians cases ought to be capable of being handled in a more organized way than the previous cases because there isn’t as much of a problem with allocation of time.

MCFEELY: A lot of people are working on these cases, I’m not familiar with it --

(ME: There he goes lying again. What was he on Mars since 2006 when he defended the Salesians in San Francisco?)

MCFEELY: I’m not in a position I can only say that it’s a prediction. The ex parte was first noticed for today then yesterday, now tomorrow --

(ME: That explains sort of why it was taken off calendar and penned back in this morning.)

JUDGE: (IN ORDERING TONE OF VOICE) Arrive at a resolution that's satisfactory

ZUKIN: It’s a matter of us not receiving information that we had requested and was not agreed to.

(She starts to set up date for a meet and confer.)

MCFEELY: I can’t do that. I’m familiar with my schedule but not the witnesses.

JUDGE: Let’s put a no later than date.

ZUKIN: For the depositions to occur?

JUDGE: Yes.

ZUKIN: No later than October 12th?

JUDGE: Does that give you enough time, Mr. McFeely>

MCFEELY: If it’s two or four we're running into expert witness issues we're running into issues with deposition next week but . . . (SHOULDERS SAG)

MCFEELY: We'll just have to do it.

SO the Salesians are now committed to provide MICHAEL J. ALVAREZ & THOMAS PRENDERVILLE and allow depositions of same before October 12th.

More to Come. . .

NEXT POST: DOCUMENT DIVING

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