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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

PLAINTIFF’S 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  plaintiff 

’

s motion to compel the deposition of Mike Ellis, move for

instanter 

 admission to the local bar and state: This is an

opposition to Plaintiff’s 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).

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 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 Court’s

 November 14, 2014 order allowing for discovery in advance of the February 18, 2015 evidentiary hearing, Defense counsel requested non-party Church of Scientology International

’s 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

IJC’s

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).

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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 party’s 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 enfor 

ce 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 Plaintiff’s 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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