Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Diskeeper responds to Godelman's opposition to motion to strike

I realize that we’re trundling on down the procedural rabbit hole here, and it’s pretty easy to get lost, so let me start by providing an enumerated roundup of where we are and how we got here.

1. In November, 2008, Godelman and Le Shay filed its 3d Amended Complaint, alleging wrongful termination [pdf] against Diskeeper. Among the relief requested is a prospective injunction which would prevent Diskeeper from requiring present and future employees to take Hubbard Management Technology courses.

2. On December 10, 2008, Diskeeper moves to strike [pdf] Godelman’s prospective injunction request, arguing that it is barred as a matter of law, an argument I believe they fell far short in demonstrating.

3. On January 13, 2009, Godelman opposed Diskeeper’s motion to strike, arguing that the prospective injunction request is permitted by law and that the injunction request was not “irrelevant, false or improper,” which is the legal threshold one must establish in order for the court to strike material from a pleading.

3A. After I posted item #3, I received a letter from Diskeeper’s counsel, vaguely threatening me with having violated a court ordered confidentiality stipulation and requesting that I retain ‘all correspondence related to this matter.’ I surmised in an ARS post that Diskeeper’s sensitivity was likely due to the presence of Exhibits C & D from Godelman’s opposition (item #3 above). Exhibit C contained selected pages from the LRH Organization Executive Course, and Exhibit D was excerpted transcripts of Craig Jensen’s deposition.

This brings us up to date, and brings us to the next chapter of the evolving procedrual saga:

4. Diskeeper’s Reply to Godelman’s opposition [pdf], along with a, wait for it… an Objection and Request to Strike Evidence Submitted by Plaintiffs in Support of Opposition to Diskeeper Corporation’s Motion to Strike.
The Reply first argues, in somewhat convoluted fashion, that (1) Godelman failed to address Diskeeper’s argument that a business may adopt a religious practice into its business model; (2) a total lack of authority notwithstanding, the federal standard of review for California’s Labor Law (FEHA) with respect to the free exercise of religion should be strict scrutiny, because FEHA’s “direct purpose and effect is to regulate or limit religious practice”; and (3) a total lack of authority notwithstanding, California’s Constitution mandates strict scrutiny with respect to religious free exercise questions.

If the above doesn’t make sense to you, it’s not you–it really doesn’t make sense. Diskeeper’s argument that the plaintiffs requested injunction “would violate both statutory and First Amendment and California constitutional protections of an employer’s right to incorporate religious practices in the workplace” (a) utterly fails to account for plaintiffs’ free exercise interest, the presence of which renders a motion to strike as entirely improper, given that competing free exercise interests cannot effectively be weighed without trial; and (b) even if plaintiff’s’ free exercise interest was not present, Diskeeper’s argument for application of a strict scrutiny standard is dubious at best, since far a better argument can be made that FEHA is a neutral law of general applicability, and does not, as Diskeeper contends, target and/or regulate religious practice.

As noted above, Diskeeper also filed an Objection and Request to Strike Evidence, which seeks to strike Exhibits C & D from Godelman’s motion, as well as certain statements made by Diskeeper’s attorney, Barry Kaufman. Their basis for this argument is these items are unauthenticated and improperly admitted extrinsic evidence. Kaufman’s affirmation is not being offered as evidence, of course [the statement is, verbatim: “discovery has by now unequivocably confirmed that new employees at Diskeeper are required to study, learn and apply the so-called ‘Hubbard Management Technology’ in performance of their work for Diskeeper (and that their failure or refusal to do so can result in discipline or discharge).“], so I don’t really know what to make of Diskeeper’s characterization of the statement as being extrinsic evidence.

Diskeeper also asserts that the Hubbard Management Technology excerpts (Exhibit C) are unauthenticated and, despite failing to make any argument as to why the Craig Jensen deposition transcripts (Exhibit D) should also be considered extrinsic evidence, moves to strike those as well. Diskeeper sums up its argument, presumably with a straight face, that Kaufman’s statements and Exhibits are “not the proper subject or proper evidence for consideration on a motion to strike,” but are rather factual disputes more properly brought during trial. This assertion is especially ironic given that I’ve said precisely the same thing about Diskeeper’s motion to strike–they very well could prevail on the merits of their argument that a prospective blanket injunction preventing Diskeeper from requiring (note emphasis) LRH Management Technology is improper… but at trial, not in a motion to strike.

The bottom line is that Diskeeper’s motion to strike Godelman’s request for prospective injunctive relief opened the door for Godelman to go out on the same limb Diskeeper’s been granted; and now Diskeeper wants to limit the limb for itself.

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