Perjury by “GBC” Side

Supreme Court of the State of New York
County of Nassau

Edward Kelley a/k/a Adarsi Das, & Ors.,
Plaintiffs
V.
Aruna Garuda a/k/a Aruna Devi Das, & Ors.
Defendants   

Index No. 04/007016
(Hon. Mahon, J.S.C.)

Attorneys' Affirmation (A) in Support of Defendants' Notice of Cross-Motion For Summary Judgment And Incidental Reliefs, or Alternatively, for (i) Compelling Compliance With Subpoena By Non-Parties; and (ii) Issuing Commission to Take Deposition In California and (B) In Opposition to Plaintiff's Motion for Protective Order

Krishnan Chittur, being duly sworn, states as follows under penalties of perjury:

-                      I am the principal of Chittur & Associates, P.C., attorneys for defendants-Aruna Garuda a/k/a Aruna Devi Das, Viswa Garuda a/k/a Viswa Prana Dasa, and Vijay Shaw.  I am fully familiar with the proceedings thus far, and file this affirmation in support of defendants' instant cross-motion and in opposition to plaintiffs' motion for a protective order.

-                      The only remaining claim in this action is for declaratory relief of plaintiffs' status.  But this is completely negated by plaintiffs' own hitherto undisclosed filings in California that in 1998, plaintiff Kelley was only a Vice-President and three other persons comprised the "full board of directors" of ISKCON, Inc.  No evidence exists that plaintiff Kelley was ever appointed to the ISKCON board after 1998.  Thus, plaintiff Kelley is not a director of ISKCON.  Accordingly, no genuine issue of material fact exists for trial, and the complaint should be dismissed.

-                      Alternatively, should this Court be inclined to hold otherwise, defendants seek to compel discovery into the facts and circumstances underlying plaintiffs' said assertions in the California Court.  For this purpose, defendants seek a Commission to take the deposition of Mr. David Liberman, plaintiff GBC's attorney whose advice was cited by plaintiff GBC before this Court, and whose court filings in California directly contradicted such alleged advice.  The attorney-client privilege does not apply in view of the crime-fraud exception.  In any event, any privilege was waived by plaintiffs' express reliance.  So also, defendants seek to compel compliance with the subpoena by 2 non-parties, Jose L. Dos Santos and Girindra Kumar Das, who signed several material documents  as directors/office bearers of ISKCON for several years.

-                      Correspondingly, plaintiffs' motion for a protective order is a baseless, desperate attempt to prevent defendants from establishing, and this Court from finding out that plaintiffs have committed a fraud on this Court, and that their entire lawsuit is based upon wilfully false, perjured  statements which appear to have been made with the knowledge and active connivance of Mr. Liberman.  The evidence sought by defendants is not just material, it could be critical to this action which reeks of plaintiffs' fraud on the court and perjury. 

Background

-                      Plaintiffs brought this action in May 2004 asserting, in essence, that plaintiff Kelley had been a director/trustee of ISKCON continuously since 1989, and that he was today the sole director/trustee of ISKCON.  "Ex. A," Summons and Complaint.  By Order of October 25, 2004, this Court dismissed the first two claims.  The only surviving claim is plaintiffs' request for a "declaratory judgment as to the elected and/or statutory positions of the respective parties," Order of Oct. 25, 2004, at 2.

-                      Issue was joined on November 22, 2004, by defendants' service of an Answer.  "Ex. B," Answer.

Summary Judgment Should be Entered Dismissing the Complaint In View of Plaintiff Kelley's Affidavit of 1998

-                      In 1997, a litigation commenced in California concerning a trust established by the ISKCON founder ("Trust"), Bhaktivedanta Book Trust International, Inc., & Anr v. Hans Kary et al, No. BC170617 (Superior Court of the State of California for the County of Los Angeles) ("California Litigation").  In that action, plaintiff GBC laid claims to the Trust's assets and funds.  The Trust's assets were primarily copyrights to the books written by the ISKCON founder which have been, and continue to be, sold internationally and rake in millions of dollars every year.  ISKCON, Inc. - the nominal plaintiff here - is the only named beneficiary of that Trust.  In that Litigation, plaintiffs Kelley and GBC made assertions under penalties of perjury in support of the GBC's claims to that Trust's assets and funds.  As shown below, those assertions are directly contradictory to the claims underlying this lawsuit.

-                      On September 1, 1998, plaintiff Kelley filed an affidavit in the California Litigation asserting that he was a Vice-President of ISKCON, Inc., having been appointed on July 26, 1998,  by the ISKCON board of directors.  He stated categorically:

2.         I became the Vice‑President of ISKCON, Inc. on July 26, 1998. Attached hereto as Exhibit"A" is a true and correct copy of the minutes of the board of trustees of ISKCON, Inc. dated July 26, 1998, appointing me as Vice‑president of ISKCON, Inc."

"Ex. C," Declaration of Ed Kelley In Support of BBTI's Motion for Summary Judgment and/or Summary Adjudication, dated September 1, 1998. 

-                      Plaintiff Kelley annexed a copy of "Minutes of meeting of Board of Directors of ISKCON, Inc." of July 26, 1998.  These minutes, which plaintiff Kelley himself affirmed as being a "true and correct copy" reflected that three people other than Kelley comprised the "full board of directors" of ISKCON, Inc:  Jose L. Dos Santos a/k/a Lilananda Das (Chairman), Girindra Kumar Das a/k/a Goura Krishna Das (President), and Dr. V. Shaw (Secretary):

A meeting of the Board of Directors of ISKCON, Inc., has been called and held on July 26, 1998, at 197 South Ocean Ave., Freeport, NY.  In attendance was the full Board of Directors: [Jose L. Dos Santos a/k/a] Lilananda Das, [Girindra Kumar Dasa a/k/a] Goura Krishna Das, and Dr. V. Shaw.

Id., ("Ex. A.") 

-                      This recital is consistent with several other contemporaneous documents: All of them reflected:

o                    That plaintiff Kelley was not a director of ISKCON, Inc.; and

o                    That Jose L. Dos Santos a/k/a Lilananda Das, Girindra Kumar Dasa a/k/a] Goura Krishna Das, and Dr. V. Shaw comprised the full board of ISKCON, Inc.  "Ex. D." ^[1]

-                      Moreover, plaintiff Kelley affirmatively and completely disowned ISKCON, Inc.'s highly valuable rights as beneficiary of the BBT:

3.         During my tenure as Vice-President of ISKCON, Inc., ISKCON, Inc., has never made any claim, as trust beneficiary or otherwise, to any of the copyrights to the writings and speeches of Srila Prabhupada or the illustrations and photographs in his books.  ISKCON, Inc., does not make any such claim at this time, and only wishes to confirm the ownership by Bhaktivedanta Book Trust International, Inc. ("BBTI").

Ex. C, ¶3.  BBTI was formed by the GBC to takeover the assets and funds of that Trust.

-                      Clearly, thus, by plaintiff Kelley's own averment, he was the Vice-President of ISKCON, Inc., not a director, in 1998.

-                      Plaintiffs have produced no evidence that plaintiff Kelley was ever appointed or elected as a director of ISKCON at any time after 1998. 

-                      Accordingly, defendants' motion for summary judgment should be granted, and the complaint should be dismissed in its entirety with costs.  Venigalla v. Alagappan, 307 A.D.2d 1041, 1042 (2^nd Dept. 2003) (such trustees "acquire no legal right to such offices . . . and their performance of functions of the offices is a nullity"); accord Srour v. Board of Trustees of Sephardic Congregation of Har Ha Lebanon, Inc.,  3 Misc.3d 1108 (N.Y.Sup., Kings Co. 2004).

Plaintiffs' (A) Wilful Concealment of the Kelley Affidavit of 1998; (B) Asserting Claims Herein Directly Negated by That Affidavit, and ( C) Making Several  Perjurious Statements in This Court, Are Sanctionable

-                      No serious question can exist that plaintiffs knew, and wilfully misrepresented to this Court, the pivotal facts underlying their claims at issue.  Indeed, their entire case is negated by plaintiff Kelley's affidavit aforesaid.

-                      Moreover, Mr. Liberman, plaintiff GBC's "general counsel", annexed, cited, and relied upon the aforesaid affidavit in support of plaintiff GBC's claims to the Trust's assets and funds in the California Litigation.  Indeed, plaintiff Kelley's affidavit was critical to their claim.  Thus, as "Undisputed Facts," Mr. Liberman and the GBC asserted:

21.       ISKCON, Inc., which currently operates the Freeport, Long Island ISKCON temple, will support the GBC's directive that BBTI should be declared the owner of the copyrights, and to the extent the Court might deem some action by ISKCON, Inc., necessary and proper for producing that result, ISKCON, Inc., will do so

"Ex. E," Separate Statement of Undisputed Facts In Support of Plaintiffs' and Cross Defendants' Motion for Summary Judgment, at 5¶21.

-                      As "Evidentiary Support" for this assertion, they cited plaintiff Kelley's affidavit aforesaid, para 4, which reads:

4.         I am aware that ISKCON's Governing Body Commission ("GBC") has resolved that it intends that plaintiff BBTI be declared the owner of the copyrights at issue in this lawsuit.  As Vice-President of ISKCON, Inc., I will do anything in my legal capacity, including ratifying any prior assignment, to achieve that result.

"Ex. C," Kelley Declaration, ¶4.  Nothing suggests that the ISKCON, Inc. Board was even aware of this unilateral, clandestine give away of its valuable rights worth hundreds of millions of dollars.

-                      The California action was settled on confidential terms, and the Court file was sealed and kept beyond public access.  "Ex. F," Stipulated Judgment Entered in California Court.  This sealing enabled plaintiffs to perpetrate the fraud on this Court through this lawsuit.

The False Representations In This Court

-                      Six years after sealing the California Litigation records, plaintiffs Kelley and the GBC  brought this action, now laying claim to the assets and funds of ISKCON, Inc., and seeking to cement the fraud on the California Court.  For this purpose, they now asserted that plaintiff Kelley had been a trustee continually since 1989 of ISKCON, Inc., and that plaintiff GBC was its "ecclesiastical" authority:

10.       In 1989, Kelley was one of three directors elected by the Board pursuant to ISKCON's bylaws.

11..      The other two directors are Nitya Gopal Debnath and Surajit Debnath, who are presently not active in ISKCON's governance.  Kelley is the sole active director.

"Ex. A," Verified Complaint, 3¶¶10-11 (emphasis added).  The complaint was verified by plaintiff Kelley himself.  This factual assertion is the entire basis for this lawsuit.

-                      On this premise, plaintiffs even sought and obtained an ex parte TRO, which TRO was subsequently vacated by this Court after an extensive evidentiary hearing in July 2004.  As an exhibit to plaintiff Kelley's affidavit supporting the TRO application, plaintiffs also submitted a letter to this Court asserting that

Based upon the documents reviewed by our attorney David Liberman, it is the conclusion of the GBC Executive Committee that [plaintiff] Kelley is the sole authorized director . . . of the New York religious corporation International Society for Krishna Consciousness, Inc., located at 197 S. Ocean Avenue, Freeport, New York, and that [plaintiff] Kelley has occupied that post in good standing from November 1989 till the present.

"Ex. G," Letter of May 18, 2004 (emphasis added).  Plaintiffs' filings in this Court and the Appellate Division repeatedly made this assertion, many times under penalties of perjury.

-                      During the July 2004 evidentiary hearing held by this Court in connection with plaintiffs' TRO, plaintiff Kelley categorically disclaimed, in open Court, any knowledge of his Vice-Presidency, and stated unequivocally that he had never even seen the July 26, 1998, document which was an exhibit to his own affidavit in California.  Indeed, he categorically disclaimed any awareness of his vice-presidency which had been the basis for the California Litigation settlement:

Q.        Now, your recall in July of 1998 they appointed you as vice-president to deal with the mortgage issues?

A.        I'm unaware of that.

Q.        You're unaware of that.  Let me show you the next exhibit.  You see that document?

A.        Yes.

Q.        It's minutes of a meeting of the board of directors of ISKCON, Inc., correct, dated July 26, 1998?  You see that?

A.        Yes.

Q.        Now, your name does not appear as a member of the board, correct?

A.        I've never seen this document before.

Q.        Okay.  Now, the resolution in that says, that Adarsi Das, Edward Kelley be elected to the position of the vice president of ISKCON, Inc.?

A.        Yes.

Q.        Were you aware in 1998 you were elected as vice president?

A.        I've never seen this document before.

Q.        Never seen it?

A.        No.

"Ex. H," Excerpt from Transcript of hearing of July 13, 2004, 195  (emphasis added).  Indeed, plaintiff Kelley went to the extent of unequivocally disclaiming any knowledge of this appointment as Vice President:

Q.        Do you have any idea why the board passed that resolution to make you vice‑president?

A.        I really don't know.

Q.        You don't have a clue?

A.        I have no idea.

"Ex. H," Excerpt from Transcript of hearing of July 13, 2004 (at 196).

-                      Consistent with this falsehood, plaintiff Kelley unequivocally asserted that Jose L. Dos Santos a/k/a Lilananda was never a director of ISKCON, Inc.:

Q.        Was [Mr. Santos] ever a member of the board?

A.        Mr. Santos was never a member of the corporate board of directors.

Q.        Of ISKCON?

A.        Correct.

Q.        And you're sure about that?

A.        Yes.  That's the best of my knowledge.

Id., 190

-                      As already seen, every contemporaneous document reflected Jose L. Dos Santos a/k/a Lilananda Das and Girindra Kumar Das a/k/a Gour Krishna Dasa to be members of the ISKCON board in that time period.  Nevertheless, plaintiff Kelley categorically denied in open Court that either of them had ever been an ISKCON director/trustee.  Ex. H, at 188‑190, 192‑194, 239‑244.

-                      Consistent with this volte face, plaintiffs identified to this Court, under penalties of perjury, completely different persons as having been ISKCON, Inc.'s directors continually since 1989 - plaintiff Kelley, Surajit Debnath, and Nitya Gopal Debnath.  None of these persons had been identified by plaintiffs in the California Litigation as being ISKCON Inc.'s directors, let alone its "full board of directors" of ISKCON, Inc., in 1998.

Plaintiffs' Failure To Disclose These Documents is Sanctionable Under CPLR 3126

-                      Given the decisive assertions in the California Litigation, this action should never have been commenced.  Quite apart, plaintiffs wilfully continued their fraud on this Court by concealing these documents despite discovery demands.

-                      On or about November 22, 2004, defendants served Defendants' Discovery Request to Plaintiffs, First Series, upon plaintiffs.  Therein,

o                    Request No. 1 demanded, inter alia, "all documents concerning corporate structure of ISKCON;"

o                    Request No. 6 demanded "Minutes, notes, reports, recommendations, and other documents of the ISKCON's Board of Directors meetings";

o                    Request no. 9 demanded "Communication between Mr. Kelley and/or any other party/parties concerning ISKCON management or corporate structure;"

o                    Request No. 10 demanded "Communication between GBC and/or any other party/parties concerning the ISKON management or corporate structure;" and

o                    Request No. 14 demanded "Documents relevant to any claim or defense herein.

"Ex. I," Defendants' Discovery Request to Plaintiffs, First Series.

-                      Plaintiffs served their responses to the above requests, claiming that they had "already . . . produced all relevant documents" at the evidentiary hearing "or as exhibits to plaintiffs' motion papers."  "Ex. J," Plaintiffs' Objections and Responses to Defendants' Discovery Request to Plaintiffs, First Series, dt. Jan. 25, 2005 (Response to 1, 6, 9, 10, and 14).

-                      Plaintiffs did not even reveal the existence of (at least) the two aforesaid documents; instead, they wilfully concealed, and wilfully failed to disclose these documents, i.e., the Kelley affidavit of 1998 and their Statement in the California Litigation.

-                      Clearly, these documents and the information therein were critical to the issues before this Court.  No serious question can exist that they "ought to have been disclosed" under CPLR 3126. 

-                      Moreover, plaintiffs' wilful concealment here is compounded by plaintiff Kelley's sustained perjury in open Court during the July 2004 hearings (a) denying that he was even aware of the documents concealed, (b) denying that Jose L. Dos Santos a/k/a Lilananda Dasa and/or Goura Krishna Dasa a/k/a Girindra Kumar Das were ever directors of ISKCON, Inc.; and ( c) claiming to be the sole trustee continually since 1989.  Plaintiffs' claim that plaintiff Kelley continued to be the director/trustee today, continually since 1989, was clearly false to their knowledge.

-                      Plaintiffs' misconduct is only compounded by their instant motion audaciously seeking to stonewall further discovery into this fraud on the Court.  This should not be tolerated.  This Court should not be an instrument for the plaintiffs' fraudulent cat and mouse games to gain control of others' assets.

-                      Hence, the Court should strike the Complaint, given this "clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith," Kuzmin v. Visiting Nurse Service of New York  22 A.D.3d 643, 644 (2^nd Dept. 2005) (quoting Espinal v. City of New York, 264 A.D.2d 806 (2^nd Dep't 1999)).

-                      Accordingly, defendants request that the Court enter an order under 3126(3) striking plaintiffs' pleadings and/or dismissing the action, and awarding defendants their attorneys' fees and expenses.  McKinneys' Commentaries, CPLR 3126; Herrera v. City of New York, 238 A.D.2d 475, 476 (2^nd Dep't 1997).

Sanctions Should Be Imposed under 22 N.Y.C.R.R. §130‑1.1, And/or the Inherent Powers of this Court

-                      This Court may also impose sanctions upon plaintiffs for frivolous conduct.  As one Court summarized the well-settled law on this issue:

The authority to impose sanctions and costs is within the court's sound discretion (De Ruzzio v. De Ruzzio, 287 A.D.2d 896 (3^rd Dept.2001)). The court's power to impose sanctions serves the dual purpose of vindicating judicial authority and making the prevailing party whole for expenses caused by his opponent's obstinacy (Gordon v. Marrone, 155 Misc.2d 726 (Sup.Ct. Westchester Co.1992], aff'd 202 A.D.2d 104 (2d Dept.1994), lv. denied, 84 N.Y.2d 813 (1995)). . .  Sanctions are awardable against both a party and his or her attorney (Precise Court Reporting, Inc. v. Karten, 6 A.D.3d 412 (2d Dept.2004)).

Sakow ex rel. Columbia Bagel, Inc. v. Columbia Bagel, Inc., 6 Misc.3d 939, 943 (N.Y.Sup. 2004).

-                      Under 22 NYCRR § 130‑1.1, the court has discretion to award sanctions for frivolous conduct, i.e., conduct which is undertaken primarily to harass or maliciously injure another, or which involves the assertion of materially false factual statements.  "Conduct may be deemed frivolous if it is without legal merit or is unsupported by a reasonable argument, undertaken to unduly prolong litigation or to harass or injure another, or involves material false statements."  Household Bank Region I v. Stickles, 276 A.D.2d 940, 941 (3^rd Dep't 2000).  The party sanctioned must be provided a reasonable opportunity to be heard on the issue, 22 N.Y.C.R.R. §130‑1.1[d] - which opportunity is provided by this motion.  Lastly, a sanction must be supported by a "written decision setting forth the conduct on which the award is based and the reasons why the court found the conduct to be frivolous and the amount of the award to be appropriate,"  Citibank [South Dakota] v. Coughlin, 274 A.D.2d 658, 659 (3^rd Dep't), lv denied, 95 N.Y.2d 916 (2000); see also 22 NYCRR 130‑1.2).  See also Hartford Acc. & Indem. Co. v. ABC Pacific Realty, LLC., 12 Misc.3d 1155(A), 2006 WL 1371689, *2 (N.Y.Sup. 2006).

-                      Here, plaintiffs wilfully asserted materially false factual statements.  Quite apart from other evidence, their assertions before this Court, in writing and in testimony under penalties of perjury - indeed, their entire claim - is completely contrary to their own assertions before another Court.  Accordingly, sanctions are proper, and plaintiffs should be required to pay defendants all expenses and reasonable attorneys' fees incurred herein.

The Case Should Be Referred to the DA's Office for Consideration of Prosecution of Plaintiffs

-                      It is clear that ISKCON, Inc., is the sole beneficiary of the Trust.  The Trust assets run to millions - even hundreds of millions - of dollars.  Plaintiffs have apparently managed to gain control of the Trust through perjurious statements in California Court: no evidence exists that ISKCON, Inc., ever authorized plaintiff Kelley to alienate all its valuable rights to the Trust assets, or turn over such rights to the plaintiff GBC, or indeed, that ISKCON, Inc., was even aware of such alienation which clearly took place behind its back. 

-                      After misleading the California Court, plaintiffs reversed themselves to bring this action to gain control of the sole Trust beneficiary, ISKCON, Inc.  For this, they unhesitating resorted to perjurious statements concerning plaintiff Kelley's alleged directorship.  They maintained these false assertions in affidavits and testimony before this Court.  This action is obviously an attempt to seal the fraud on the California Court.

-                      Not surprisingly, plaintiffs wilfully concealed the California documents which negated their claims here, and did not even disclose their existence.

-                      Worse, now that these  documents have come to light, plaintiffs seek to prevent investigation therein so that the full scope of their fraud remains uncovered.

-                      This should not be condoned - especially given plaintiffs' sanctimonious claims of acting under religious garb.  Plaintiff GBC's history of questionable activities and intimidatory litigation is well-known.  See, e.g., J. Hubner & L. Gruson, Monkey on a Stick (1988).

-                      This Court has the right and indeed, the obligation, to protect the integrity of the judicial system.  Plaintiffs should not be permitted to burden courts with bogus cases based on manufactured assertions of convenience.  Accordingly, a referral to law enforcement authorities is appropriate.  Pursuant to the inherent power of this Court, plaintiffs' misconduct should be referred to the federal or state law enforcement authorities for considering prosecution of plaintiffs for perjury, obstruction of justice, and/or fraud on the Court ^[2] .  See, e.g., In re Estate of D'Angelo, 2006 WL 2089217, *1 (N.Y.Sur. 2006) ("'This is contrary to the evidence and sworn testimony and is nothing more than a blatant attempt to defraud the judgment creditor.' (Rosemarie D'Angelo v. State Farm Casualty Co., Sup.Ct., Suffolk County, Dec. 16, 1998, Berler, J., Index No. 24047/97). The decision concludes by stating that the various transactions 'may very well be tainted with criminal fraud' and refers the matter to the District Attorney of Suffolk County.").

In Any Event, Defendants Are Clearly Entitled to the Discovery Sought

-                      Should the Court be disinclined to grant summary judgment and/or dismiss the case as requested above, defendants are clearly entitled, at the very least, to discovery into these documents and the information therein, and to ferret out the underlying circumstances as well as other misrepresentations made by plaintiff Kelley and/or GBC, in the California Litigation contrary to or different from their representation in this lawsuit.  These go to the very heart of plaintiffs' claims in this lawsuit.

-                      As this Court is well aware, discovery is permissible where it is  "reasonably calculated to elicit information that might lead to admissible evidence," Lager Assocs. v. City of New York, 202 A.D.2d 398 (2^nd Dep't 1994); Valvo v. Loyal Order of Moose, 15 A.D.3d 1008, 1009 (4^th Dept. 2005) ("may contain 'information reasonably calculated to lead to relevant evidence"); Quality and Ruskin Associates v. London, 8 Misc.3d 102, 105 (N.Y.Sup.App.Term, 2^nd & 11^th Dist. 2005); CPLR 3101.  As another Court explained,

Disclosure extends to all relevant information calculated to lead to relevant evidence. The statute is construed to mean 'evidence required in preparation for trial.' Beyer v. Keller, 11 A.D.2d 426; 3 Weinstein‑Korn‑Miller, N.Y.Civ.Practice § 3101.04, et seq. . . . If the information is sought in good faith for possible use as evidence in chief or in rebuttal or for cross‑examination, it should be considered material and necessary in the prosecution or defense of the action. If there is some doubt of admissibility upon the trial of the action, Special Term should permit discovery leaving the ultimate decision to the Trial Court. Field v. BF Goodrich Company, Sup., 124 N.Y.S.2d 256

West v. Aetna Cas. & Sur. Co.  49 Misc.2d 28, 29 (N.Y. Sup.1965), mod on o'r grounds, 28 A.D.2d 745 (3^rd Dept. Jun 19, 1967).

Plaintiffs' Baseless Objections

-                      Plaintiffs' suggestion that the requests are not "relevant" is, put directly, ridiculous.  From the enclosed Kelley "Declaration", it is clear that plaintiffs' claim in this Court that Kelley was a trustee "in good standing from November 1989 till the present" was wilfully false to his knowledge.  Worse, the GBC has made affirmative assertions based on this falsity to this Court and other courts, despite knowing the falsity.  As self-proclaimed guardians of an international movement for peace, love and truth, that's a matter of shame, but we don't dwell on that now. 

-                      The discovery sought is with respect to the plaintiffs' own assertions and knowledge about plaintiff Kelley's status in ISKCON - the only surviving issue in this action.  This is directly relevant and material, and further, it bears directly on the credibility of plaintiff Kelley, plaintiff GBC, and their fund collector Bruce Jacobs a/k/a Bir Krishna Goswami; it is central to plaintiffs' claim at issue here.

-                      It is disingenuous for plaintiffs to claim untimeliness of even our second discovery request.  The documents at issue ought to have been produced in response to our first request served in November 2004.

-                      In any event, plaintiff's own discovery request was belatedly served 3 months after the deadline they rely on.

-                      Moreover, in the June 14^th conference, the Court overruled our objections to plaintiffs' discovery request on grounds of untimeliness.

-                      Interestingly, plaintiffs themselves attempted to serve a subpoena upon another non-party witness Nikhil Gupta on August 3, 2006 - more than a week after making the instant motion!  This is conclusive that plaintiffs themselves do not believe that this objection of untimeliness is well-founded.

-                      So also, plaintiffs ignore that the Court clearly stated in the June 14^th conference that the issues in this case were "wide ranging" and not restricted to the due adoption of the 1989 bylaws.  That was clearly the basis on which the Court permitted plaintiffs to conduct discovery into a document concerning a sister corporation.

-                      Perhaps more important, as I informed Your Honor in the conference of June 14, 2006,  plaintiffs' misrepresentations were not uncovered until recently, because of inaccessibility of the California court files.  We made the second discovery requests - which were actually not even necessary, given the first request's coverage - promptly upon coming to know of these facts, and upon the Court's view that the issues herein were "wide-ranging".

-                      In fact, in that conference itself, I informed the Court that if the issues were to be wide ranging, then we would request that discovery be extended by 6 months to enable us complete the California depositions and discovery.  The Court acknowledged this, and did not question, reject, or disapprove of this in any manner.  Mr. Lester has conveniently omitted that portion of the transcript.

-                      Plaintiffs acknowledge that we served even our second discovery requests as expeditiously as possible, once we came to know of this audacious fraud a day or two before the conference of June 14, 2006.

-                      In a bid to confuse the issue, Mr. Lester asserts that my claim of "newly discovered evidence is false," Lester Aff., 4 n.2, because I cross-examined Kelley in July 2004 on the July 26, 1998, minutes.  This is disingenuous.   As clear from the above, the "newly discovered evidence" is not the July 26^th minutes themselves; rather, it is the California Litigation documents.  This newly discovered evidence reflects that plaintiffs wilfully made false assertions to this Court, in writing under penalties of perjury as well as in open court under oath.

No Attorney-Client Privilege Applies

-                      Plaintiffs' assertion of the "attorney client privilege" is prima facie untenable.  Plaintiffs have specifically relied upon Mr. Liberman's advice about plaintiff Kelley's alleged "sole trusteeship" to mislead this Court (Justice Roberto) into granting a TRO on that basis.

-                      It is well settled law that by relying upon such advice, disclosing it in public, and placing it in issue, the GBC waived any privilege that might have applied, as Justice Warshawsky reiterated in Goetz v. Volpe, 11 Misc.3d 632, 635 (N.Y.Sup. 2006) ("A client who voluntarily testifies to a privileged matter or who publicly discloses it . . . is deemed to have waived it.").  Accord Delta Financial Corp. v. Morrison, 2006 WL 1233000, *4 (N.Y.Sup. May 9, 2006).  Cases on this issue are legion; the attorney client privilege is not a cloak to be worn and discarded at convenience. ^[3]

-                      Moreover, "The burden of proving every element of the attorney‑client privilege rests upon the party asserting it," In re Confidential Invest. into R#03‑103, 9 A.D.3d 491, 492 (2^nd Dept. 2004); accord, Delta Financial Corp. v. Morrison, 2006 WL 1233000, *2 (N.Y.Sup., Nassau Co. May 9, 2006) (Warshawsky, J.S.C.).  This is also true with respect to the work-product privilege.  Bluebird Partners, L.P. v. First Fidelity Bank, 248 A.D.2d 219 (1^st Dept.1998) (party asserting work product protection bears the burden of establishing non‑waiver of the protection); Goldberg v. Hirschberg, 10 Misc.3d 292, 299 (N.Y.Sup. 2005).  Here, plaintiffs have not even attempted to do so.

The Specific Discovery Items

-                      Every one of the requests contained in Defendants' Discovery Requests, Second Series, Lester Aff., "Ex. 10", is directly material and necessary, and far above the requisite standard for discoverability.  While the relevance (indeed, centrality) of Requests 1-10 are clear from the above discussion, No. 11 concerns the GBC's own composition.  Defendants are entitled to discover whether the GBC is actually following the founder's directions as it claims to be, whether it is constituted in accordance with the Direction of Management which it has relied upon thus far, and whether it has the authority to bring this action at all.

-                      Thus, the issue is not whether the California Litigation concerned the "validity of ISKCON, Inc.'s bylaws or the composition of its board of directors," Lester Aff., 5¶12, or whether that litigation is "unrelated" to this.  Rather, it is about plaintiffs' representations on these and other items at issue here.  Defendants are entitled to discover - and indeed, this Court is entitled to know - what plaintiffs themselves represented to other judicial authorities in what appears to be their continue peek-a-boo to gain control of others' assets.  The significance of this is only highlighted by undisputed evidence of plaintiffs' brutalizing the Temple for years and stealing over a quarter of million dollars.

-                      Plaintiffs' assertion that the California Litigation "has been known to the ISKCON community" - whatever that means - for "many years", Lester Aff., 5¶12, is misleading.   Nothing suggests that the defendants in this case - specifically, the Garudas and Dr. Shaw - knew about that litigation.  More important, no one (except plaintiffs and their cohorts) knew of the astounding fraud that has been uncovered.

-                      Plaintiffs' assertion of the attorney client privilege and work product privilege in this connection, Lester aff., 5¶13, is frivolous.   "The attorney‑client privilege protects confidential communications between a lawyer and client relating to legal advice sought by the client," In re Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003, 4 N.Y.3d 665, 678 (2005).  This privilege

"applies only to confidential communications with counsel, not to information obtained from or communicated to third parties." See Marten v. Eden Park Health Services Inc.,  250 A.D.2d 44 (3^rd Dept.1998) (citing Eisic Trading Corp. v. Somerset Marine, Inc., 212 A.D.2d 451 (1^st Dept.1995).

Barcelar v. Pan, 12 Misc.3d 1162(A), 2006 WL 1493120, *1 (N.Y.Sup. Westchester Co., May 30, 2006).  Plaintiffs have not identified a single document that falls in this category.

-                      Instead, plaintiffs recklessly assert that "affidavits signed by [plaintiff] Kelley," deposition transcripts, and even their communication with BBT - their adversaries in that litigation - are protected by the attorney-client privilege and/or work product privilege, Lester Aff., 6¶13.  This is  irresponsible.

-                      Plaintiffs' reliance upon the California Court order sealing the court records, Lester Aff., 6¶13, is equally frivolous.  That order, by its own terms, applies to "The Court file", not to documents with plaintiffs (or those defendants, or anyone else).  Presumably, plaintiffs are well aware of this, since they never annexed it.  "Ex. F," Stipulation For Judgment.

-                      Moreover, the California court cannot circumscribe this Court's authority.  Plaintiffs' attempt to use the California Court order - indisputably entered at their behest and insistence - to preclude defendants, this Court and the California Court from finding out plaintiffs' fraud is untenable.  They cite no authority - and we found none - authorizing such extra-territorial authority over another state's courts.

-                      Plaintiffs' objection to Requests 4-8 is baseless for the same reasons: plaintiffs have waived the privilege

-                      Moreover, it is also settled that

any materials which may have been prepared in the context of other litigation and not in anticipation of this litigation clearly are not protected. See Marten v. Eden Park Health Services Inc., 250 A.D.2d 44, 46 (3^rd Dept.1998). Indeed, even where material has been prepared in anticipation of the subject litigation, it nevertheless is discoverable if it has been prepared for mixed or other purposes, as well. See Friend v. SDTC‑Center for Discovery, Inc., 13 A.D.3d 827 (3^rd  Dept. 2004); Koramblyum ex rel. Koramblyn v. Medvedovsky, 7 Misc.3d 1009 (N.Y.Sup. 2005).

Barcelar v. Pan, 12 Misc.3d 1162(A), 2006 WL 1493120, *1 (N.Y.Sup. Westchester Co., May 30, 2006).  Thus, plaintiffs may not assert the attorney client privilege concerning the California Litigation even with respect to matters which might have been privileged there.

-                      Interestingly, plaintiffs also claim attorney-client and work product privilege protection for Items no. 6 (list of documents filed in the California Litigation), and item no. 7 (communication between Liberman and BBT).  This is, bluntly speaking, hilarious; plaintiffs do not claim that BBT - their adversary in the California Litigation - had any attorney-client relationship with their attorney Liberman. 

-                      Plaintiffs cite no authority - and we found none - holding that court filings, communications with adversary, and affidavits filed in court are privileged.  Plaintiffs' assertions only highlight the irresponsible and blunderbuss nature of their objections and their desperate attempts to stall unearthing of their calculated fraud.

-                      Plaintiffs' objection to Request No. 10 and 11 are equally infirm.  Plaintiff GBC's records concerning ISKCON, Inc., are directly relevant, material, and necessary; their claim here is that plaintiff Kelley was - at all times since 1989 - an ISKCON trustee.  As this Court is aware, plaintiff GBC itself excommunicated plaintiff Kelley in 1995.  His alleged "reinstatement" and the GBC's apology of 1998-99 for having excommunicated plaintiff Kelley for his defalcation of $255,000 from ISKCON, Inc. - which apology he made much of during the July 2004 hearings - now begin to make sense in the light of his affirmations of convenience in the California Litigation.  It would appear that this "apology" - despite his failure to pay back the $255,000 stolen - was a quid pro quo for plaintiff Kelley's help in plaintiff GBC's gaining control of the Trust assets.  The jury is entitled to hear this evidence, which directly bears on plaintiffs' credibility.

-                      In sum, the CPLR requires that there be a full disclosure of all evidence,  "which means all relevant information calculated to lead to relevant."  Application of R.J. Reynolds Tobacco Co., 136 Misc.2d 282, 284 (N.Y.Sup. 1987).  Defendants' discovery requests abundantly meet this criterion.

Commission Should Issue For Deposing Mr. Liberman

-                      Mr. Liberman is a material witness.  Plaintiffs themselves asserted that they relied on his advice to decide that plaintiff Kelley was the sole trustee of ISKCON.  He filed documents in the California Litigation directly contrary to this.  His testimony, his communication, and the basis for his assertions and/or advice are directly relevant and material.

-                      Neither he nor plaintiff GBC can object to his deposition because the attorney client privilege is waived, as already seen.  In any event, communication concerning intent to commit a crime is never privileged, and the crime fraud exception is too well-settled to merit serious debate.  See, e.g., People v. Darrett, 2 A.D.3d 16, 22 (1^st Dept. 2003) ("To the extent defendant wanted counsel to present a false defense, she correctly believed she was duty‑bound to refrain from doing so."); People v. DePallo, 96 N.Y.2d 437, 441 (2001) ("an attorney's duty to zealously represent a client is circumscribed by an 'equally solemn duty to comply with the law and standards of professional conduct * * * to prevent and disclose frauds upon the court,'" citation omitted).

-                      The GBC's false statements to this Court - allegedly based upon Mr. Liberman's advice - clearly fall in this category.  Indisputably, perjury is a crime, and accordingly, no privilege can apply.  Defendants will submit an appropriate proposed order to the Court for a Commission to take Mr. Liberman's deposition.

Plaintiffs' Objections to The Subpoenas On Non-Parties Are Untenable

-                      Plaintiffs' objections to the subpoenas served upon 3 nonparty witnesses is telling.  The relevance of their testimony is expressly indicated in the subpoenas themselves.  All three of them are signatories to several documents critical to the case.  For example, Mr. Nirmal Debnath is a signatory to the 1989 bylaws - the lynchpin document of plaintiffs' case.  If plaintiffs truly believe that his testimony is "irrelevant to the issues in this action," Lester Aff., 7¶18, defendants are willing to waive his deposition on condition that plaintiffs be precluded from presenting or relying upon the 1989 bylaws. ^[4]

-                      So also, Mr. Girindra Kumar Das and Mr. Jose Santos are both signatories to the 1998 document appointing plaintiff Kelley as the Vice President.  Plaintiff Kelley categorically disclaimed any knowledge of this document and appointment.  Clearly, they are relevant witnesses, and plaintiffs' objections are untenable.

-                      The subpoenas were served in accordance with the CPLR, which does not contain any venue limitations.  "Ex. K," affidavit of service.  Each witness, Mr. Das and Mr. Santos, was served personally, together with the requisite check for statutory witness fees.  Id.

-                      Neither Mr. Das nor Mr. Santos has objected to the venue.  Indeed, they have not raised any objections at all.  This Court's preference to have depositions in the courthouse followed by a conference is, we understand, restricted to the parties so as to explore additional pending discovery or settlement prospects.  Moreover, upon information and belief, Mr. Gour Krishna Dasa a/k/a Girindra Kumar Dasa works in Manhattan and would presumably find our offices in Manhattan to be more convenient for the deposition.

-                      Plaintiffs' assertion of the attorney-client privilege on behalf of these third party witnesses is, once again, frivolous.  "The attorney client privilege belongs to the client alone," Zackiva Communications Corp. v. Milberg Weiss Bershad Specthrie & Lerach, 1995 WL 131847, *2 (N.Y.Sup. 1995); accord, People v. Shapiro, 308 N.Y. 453, 459 (1955)("The privilege of nondisclosure belongs to the client alone").  Thus, only the clients, i.e., the third party witnesses themselves, not plaintiffs, may assert it.

-                      Besides, the subpoena seeks no attorney-client privileged information, and if and when we seek such information, those witnesses may choose to assert the privilege or waive it.  Plaintiffs have no standing to raise this objection.

-                      Lastly, in accordance with the proceedings in the conference with the Court on July 28, 2006, defendants will submit a letter to plaintiffs confirming the absence of any further documents.

Conclusion

-                      Plaintiffs' attempt to hide their audacious fraud on the Court is understandable, but unsustainable.  Plaintiffs brought this case claiming Kelley to be the sole trustee - after years of consistently representing to the contrary, under penalties of perjury, all over the place.  The Court should enter summary judgment dismissing the case, and impose sanctions upon plaintiffs for wilfully false and misleading assertions and frivolous conduct.  Further, the Court should protect the systemic integrity of the entire judicial process itself - here and in California - and refer plaintiffs to the federal or state law enforcement authorities for consideration of prosecution of plaintiffs for fraud on the court, perjury, obstruction of justice, and other appropriate charges. 

-                      Alternatively, the discovery sought is much more than relevant, it is material and could even be critical; defendants intend to serve additional discovery requests and subpoenas, if appropriate.  For this purpose, a Commission should issue to enable defendants take the deposition of Mr. Liberman, plaintiffs' California attorney.  Moreover, the non party witnesses Jose L. Dos Santos a/k/a Lilananda Das and Girindra Kumar Das a/k/a Goura Krishna Das should be compelled to produce documents demanded in their respective subpoenas, and to appear for giving deposition testimony.  Further, in view of their wilful failure/refusal to comply with the subpoenas, and the absence of any justification therefor, they should be ordered to pay costs of $50 for each non compliance, CPLR 2308.

-                      Accordingly, the instant cross-motion should be granted, and plaintiffs' motion should be denied, in their entirety.

Dated:  August 8, 2006

Krishnan Chittur, Esq.