Olmedo rules: After grand jury revelation, the court’s words for Danny Masterson's lawyers

[Danny Masterson and Judge Charlaine Olmedo]

On Sunday, we told you that some bombshells had landed in Danny Masterson’s criminal case last week at the courtroom of Judge Charlaine Olmedo.

It turns out that a county grand jury has been looking at the Masterson case for at least a couple of years, and prosecutor Deputy DA Reinhold Mueller revealed that among the people the grand jury has called down to testify is Masterson’s longtime entertainment lawyer, legendary Hollywood “fixer” Marty Singer.

Mueller revealed that Singer was questioned about a 2004 agreement between Masterson and his alleged victim known as Jane Doe 1. She has testified that she was forced into the agreement by Singer and by the Church of Scientology, which was intended to keep her quiet about her 2003 rape allegations.

Based on Singer’s grand jury testimony, Mueller sent Masterson’s defense team a subpoena with a list requesting 16 items, including a copy of that 2004 agreement (a document so secret even Jane Doe 1, a signatory of it, has no copy of it), a draft civil lawsuit against Masterson that Jane Doe 1’s attorney had drawn up (but that she testified her attorney had written without her knowledge), as well as statements made to Singer in the 2004 “mediation” by Masterson’s publicist Jenni Weinman and his assistant Brie Shaffer.

To bolster his request, Mueller pointed out that last year in a preliminary hearing, Masterson’s then-attorney, Tom Mesereau, referred to the 2004 agreement and draft lawsuit when he cross-examined Jane Doe 1. By bringing up the documents in the cross-examination, Mesereau had made them fair game for discovery, Mueller argued. (In May of this year, Masterson fired Mesereau and has replaced him with the team of Philip Cohen and original OJ Simpson Dream Team member Shawn Holley.)

Cohen and Masterson’s civil attorney, Andrew Brettler, argued that the 2004 documents were protected as part of a confidential mediation, and that any statements by Weinman and Shaffer were covered by attorney-client privilege. But Judge Olmedo agreed with Mueller and ordered Cohen and Brettler to turn over a copy of the agreement and the civil lawsuit and some communications from Weinman and Shaffer to the prosecution.

These are dramatic moves with just a few weeks to go before the trial, and we know that you have been fascinated by Judge Olmedo’s specific rulings in the past. So we thought we’d provide a look at what she actually said in court last week regarding this crucial decision. We think you’ll find the decision very interesting.

To set up her initial remarks, we will remind you that last year Masterson’s defense team sent out numerous subpoenas and tried to drag various people into the case in order to get access to their documents. (Your proprietor was actually one of the targets of this.) One of the things that was most unusual about those requests, and that Judge Olmedo criticized at the time, was that Masterson’s then-attorneys, Mesereau and Sharon Appelbaum, were clearly trying to get their hands on information that had nothing to do with the rape case and instead were documents that would help the Church of Scientology in the unrelated civil lawsuit. (Masterson’s accusers are suing him and the church for the harassment they say they’ve been through since the went to the LAPD in 2016.) The subpoenas suggested that Mesereau and Appelbaum were taking instructions from Scientology leader David Miscavige, and they were quashed.

Judge Olmedo clearly has that dubious episode in mind as she begins her remarks after listening to both sides in the hearing last week…

 
Judge Olmedo: In looking at the legal analysis, it’s important to stress the difference between Mr. Masterson’s two distinct cases and the two separate defense attorney teams. They are not one and the same, nor do they represent the same parties or the same cause of action. One case is criminal — the one before this court — and one is civil, not before this court.

These two cases are based upon related but separate alleged actions occurring within different time frames and locations. The criminal case involves allegations of forcible rape occurring in the early 2000s, and the civil case involves claims of stalking and harassment occurring in 2016 and 2017.

The criminal case regarding forcible rape allegations is now set for jury trial in approximately three and a half weeks. While there has been an attempt to blur the lines between the civil and criminal cases as well as the two distinct defense teams, this attempt is not founded in the law and is contrary to the evaluation of the applicability of the claimed privileges.

To that end, as I indicated before, this is the case of people of the State of California versus Daniel Masterson and Daniel Masterson alone. There is no joint defense or common interest that applies in this case as Mr. Masterson is the whole — is the sole defendant.

And there is no case law or authority whatsoever for the proposition that a joint defense in a civil case is applicable or carries over to a related but different criminal case.

Scientology as an organization and Mr. Miscavige do not stand in the same shoes as Mr. Masterson here, and the court will not consider their position in this court as such, but will consider them only as potential third parties or whatnot as their issues come up as they do today.

So with regard to the actual claims of privilege, with regard to the general waiver — with regard to the general objections, the court noted in the case of Roman Catholic Archbishop of Los Angeles versus Superior Court, a 2005 case… and I encourage both sides to read that case….

With regard to mediation confidentiality, as I indicated previously, the court finds it does not apply in criminal cases…. So the court finds that the reliance on mediation confidentiality here by the law firm is misplaced and is inapplicable here.

With regard to the attorney-client relationship, the client, not the attorney, holds the privilege in the attorney-client relationship. So with regard to the settlement agreement, I understand, Mr. Brettler, that you’re representing Mr. Singer and [Lavely & Singer’s] interest. [Brettler: Yes.]

Although Mr. Singer is not the holder of the privilege, an attorney has to raise the privilege on behalf of the client. So it’s comparable I would say to multiple levels of hearsay. We have multiple levels of privilege being raised for Mr. Masterson. But I am construing your argument — as I said, I believe there needs to be a distinction between the two teams and two interests.

While you may represent Mr. Masterson in the civil case, here you’re representing Mr. Singer who is raising Mr. Masterson’s privilege — attorney-client privilege — in the criminal case. That’s how I’m construing this argument should there be review of the court’s order afterward.

With regard to the attorney-client privilege, the privilege claimant has the initial burden of proving the preliminary facts did show that the claimed privilege applies. Once the claim establishes the preliminary facts, the burden then shifts to the opponent of the privilege who must then rebut the statutory presumption of the confidentiality to show the privilege has been waived…

Although the court may not compel disclosure of the contents of privileged document to rule on an objection to a discovery request, the court can and should determine all facts on which the claim of privilege depends… Hence, the reason for some of the courts questions to counsel.

So with regard to Jennifer Weinman and Brie Shaffer, the court finds that there is not enough facts that have been established to show that they are covered by the attorney-client privilege in regard to their statements as it relates to their observations that they made at the time of the incident itself.

The fact they may have worked for Mr. Masterson and/or were contacted by the law firm does not itself render everything that they say to the law firm protected by the privilege.

So it’s not that I’m — there may be some assertions that need to be made as it relates to a specific statement. And I’m not foreclosing the possibility that law firm may raise that in the future with regard to specific documents.

But to the extent that law firm has been by provided by statements — we’ll get to my ruling going through each one requested item individually — I’m finding that their actual observations as to what occurred prior to the alleged rapes or what occurred after the alleged rapes but relevant to the alleged rapes, whether it was something that they allege [Jane Doe 1] said to them or what their observations were, those items are not covered by the attorney-client work-product privilege based upon the facts that are before this court and that those items will be discoverable if they’ve been prepared in a witness statement.

We’ll get to whether that’s an attorney preparation report or an investigator report which I will distinguish between as well. But for the reasons I’ve stated, I don’t think there is adequate foundation to show that the attorney-client privilege extends to them and their observations as I’ve indicated.

Statements that are not made in confidence in the course of the attorney-client relationship and the matter covered by the attorney-client relationship are not protected by the attorney-client privilege.

So in line with the court’s ruling, the attorney-client privilege does not protect independent facts related to the communication itself as well. For instance, the fact that the communication took place, the time of the communication, the dates of the communication, the participants in the communication and it does not protect the disclosure of the underlying facts which may be referenced within a qualifying communication and it does not extend to individuals who are no more than witnesses to the matter at issue in the litigation…

In the instant case, [Jane Doe 1] and [Jane Doe 3] are alleged to be victims of forcible rapes. In addition, it is uncontested Jennifer Weinman, the publicist, and Brie Shaffer, the assistant, were present the night of the alleged incident against [Jane Doe 1] and are material witnesses to facts both leading up to the alleged forcible rape, facts immediately after the alleged forcible rape and alleged statements made by various other witnesses as well as [Jane Doe 1] and [Jane Doe 3], about the alleged forcible rapes.

In other words, both Jennifer Weinman and Brie Shaffer are independent fact witnesses and, as such, their communications about those facts observed or heard were not then, nor are they now, “confidential” in the legal sense of the word….

Regarding the settlement agreement itself, at the May 20, 2021 preliminary hearing conducted before this court, several facts were established: One, that the attorneys for the criminal defense team in this case are different and separate than the attorneys for the civil defense team in the case pending in a different courthouse, concerning different causes of action; and, two, the attorneys for the criminal defense team in this case had access to and utilized, to the defendant’s benefit, some documents and information that a criminal defendant as an accused individual otherwise would not be privy to. Those items were used at great length by the defense to question, cross-examine, and impeach the alleged victims in this case.

Those documents included the 2004 settlement agreement reached with Mr. Masterson, the 2004 draft civil complaint against Mr. Masterson, internal Scientology documents purportedly prepared during the practice [of] Scientology by the alleged victims including Knowledge Reports, Things That Shouldn’t Be reports, O/W reports and other reports prepared by higher-up Scientology officials.

In addition, the defense questioned the alleged victims regarding the presence of other individuals at the location of the incidents and statements made to other individuals before and after the alleged incidents….

Here, the criminal defense team clearly had in its possession a 2004 settlement document and a 2004 draft civil suit. Not only did the defense team cross-examine [Jane Doe 1] at length including her understanding of what they stood for — what they alleged and the terms of the supplemental settlement document itself — but the defense team intended to impeach her with the documents and even tried to show her the documents to refresh her memory although she declined.

All of these questions and testimony were elicited in open court with numerous spectators present. Moreover, the criminal defense team had access to and used purportedly confidential information and documents that were prepared by Scientology officials and employees according to their policies.

This information presumably was shared by Scientology with the criminal defense team. Assuming arguendo that the attorney-client privilege and attorney work product privilege exists and covers some or all of the requested items, the court finds the third party and the defendant have waived any claim of attorney-client and work-product privilege by their extensive questioning about and revealing of the information contained within the 2004 agreement and draft complaint.

The defense cannot have it both ways and claim the items are privileged and then use them to impeach witnesses without providing the complete information to the other side. To hold otherwise would be to thwart the truth-seeking process than facilitate it, and such manipulation is not allowed under the law.

While the third party has attempted to blur the lines between the criminal case pending before this court and the civil case across the street, to be clear there is no shared defense here as there is no more than one defendant here.

The sharing of the information by the civil defense team, if that’s where the information came from, with the criminal defense team to be used in separate legal proceedings will no doubt be vetted at a later date by either a reviewing court or perhaps administrative body, neither of those scenarios are of this court’s concern.

The only concern this court has is the application of the law upon the facts before this court. And based upon those two factors, it is abundantly clear that: One, the third party has waived any claim of privilege by providing the requested items to an independent party, that being the criminal defense team; and, two, the defendant has waived any claim of privilege by utilizing the provided information in these criminal proceedings in open court to question and impeach the witnesses.

With that said, the court orders the production of the following items: The court will order the copy of the settlement agreement between [Jane Doe 1] And Mr. Masterson from September of 2004 with a protective order in place that the people are not to provide a copy to anyone, but they can use it to show witnesses in preparation for trial.

The court will order the provision of items 2 and 3 with the same caveat. The people are to draft a protective order that they are not to provide a copy of any of those documents to anyone but they can use it for preparation of witnesses.

With regard to number 4, the names of people present during the 2004 mediation, the court is not ordering the disclosure of that. The court finds that to be irrelevant.

With regard to item no. 5, billing invoices and legal services rendered, the court is not ordering that. The court finds that to be irrelevant to these criminal proceedings.

With regard to 6, a copy of the confidential provision executed by [Jane Doe 1] And her father [redacted] regarding number one, the court will order that with the same modification with the protective order in place and not to give a copy to anyone and it cannot used — can be shown to witnesses in preparation for trial.

With regard to a copy of any draft lawsuit or summons and complaint, whether filed or unfiled, regarding the sexual assault alleged to have occurred on April 25th of 2003, the court will order that as well with the same modified — with same modifications of the protective order.

With regard to number 8, witness statements by Jennifer Weinman, the court will modify that. The court will order that if the law firm has any witness statements that have been prepared by an investigator. I am not ordering notes or statements by the attorney even if they involve some witness statements.

Because of the short time frame in which all of this was executed, the court is not going to do in-camera hearings to start reviewing items and then dealing with whether or not they get disclosed to the criminal defense team. We’re not even going to go there based upon the shortness of the time frame.

If they’re defense investigative notes that deal with specifically observations that were either made by seeing or hearing that relate to the specific events that are the allegations in this particular case regarding Jennifer Weinman and Brie Shaffer or any of the other named witnesses the court listed initially who are alleged to have been present at the scene with regard to [Jane Doe 1] — and if you need me to rename those, Mr. Brettler, let me know.

But my order will deal specifically for them in that context of any defense investigative witness statement — anything that might be construed as an attorney impression — what was covered by the case law of core work product impression, legal theory or whatnot can either be redacted out, but the court is not ordering the disclosure of that.

The court — that covers 9 — 8, 9, and 10 and 11.

With regard to 12 which is all witness statements prepared by investigators regarding the sexual assault, the court is denying that as overly broad. That could cover anything including expert testimony. It could cover otherwise privileged information. That is overly broad at this point. The court is not ordering that.

With regard to 13, same thing, it’s just overly broad.

With regard to 14 and 15, that was any witness statements provided to the attorneys from Scientology regarding the sexual assaults of [Jane Doe 1] and [Jane Doe 3], Mr. Brettler, you’ve already indicated you have none; correct? [Brettler: Correct.]

OK. Those are moot because — or irrelevant, there are none.

With regard to 16, I think you also indicated that there may be none, but you don’t have to answer that question.· number 16 is emails, faxes, notes, from attorney to Scientology regarding a copy of the settlement agreement.

As I held for the people, there is a privacy interest in private communications that is otherwise irrelevant here and any proposed justification doesn’t outweigh the privacy interest of third party law firm with regard to private communications.

So I think my order is pretty clear on all the requested items. If not let me know, and I’m happy to clarify…

I am going to order they be turned over in one week’s time. They are a very discrete, small number of documents. If for some reason — so they’re ordered here — what’s one week? September 21st at 8:30 in the morning here.

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