So, Megan, did you happen to run into the Orrick Silicon Valley attorneys at a Starbucks in Los Angeles?
"Dear Judge Cabrinha:
I write regarding the ex parte communication to you from GlynnP. Falcon, Esq., dated March 13, 2001, in the above-entitled case.
As Mr. Falcon is well aware, on behalf of my client (Third Party John Doe, aka "million_dollar_mistak" and "strike_thet")< I filed an extensive Motion to Quash the subpoena issued on Yahoo! by Defendant Mary Day. At the hearing, Defendant, Michael Delfino formally joined in Day's Opposition to Motion to Quash. The Court allowed all counsel to have lengthy oral argument, and ultimately granted the Motion to Quash.
Defendant Delfino (through his cousnel, Mr. Falcon) has now written to the Court to ask that this Order not bind him. Such a request is impermissible for several reasons:
Unauthorized Communication: Mr. Falcon did not copy me on his ex parte communication with the Court, and did not provide any other notice to me of this communication. It was only through a happenstance encounter with Plaintiffs' counsel that I learned of this ex parte communication. [yea, right!] See Professional Rules of Conduct 5-300; Heavey V. State Bar, 17 Cal. 3d 553 (1976) (discipline of attorney due to letters to judge).
Improper "Request for Clarification": In any event, such a "request for clarification" is improper. What Delfino is actually attempting to do is a Motion for Reconsideration, which is no longer available to him because the ten-day window has passed, and which is not a viable option for him because there axe no new or different facts, circumstances or law since the Motion to Quash was briefed and argued. See Civ. Proc. ß 1008.
Joinder: The Motion to Quash was filed on January 10, 2001, Delfino's counsel was served with the Motion at that time, and the hearing was on February 16, 2001. Delfino had full opportunity To file a separate Opposition, but deliberately chose not to. Rather, Defendant Delfto formally joined in the Opposition To the Motion to Quash. Mr. Falcon's letter concedes this fact, which is further established in the transcript of the hearing, excerpts of which are attached.
"...I join in the (opposition to) motion [to quash). I mean, obviously it's to our interest. We've had to divvy up some of the work in this case and obviously some expense that goes along with it."
Counsel for Delfino argued at length at the court hearing. Moreover, Defendant Day raised all issues on his behalf in her pleadings, which he acknowledged by Joining in her Opposition. Indeed, the Opposition is replete with evidence of Delfino's involvement -- even a cursory review of the Opposition shows that it is a mesh of arguments asserted by both Defendants, and is written in the plural. For example, on the very first page of the Opposition, it states that these John Does
"argue that they have no connection to this lawsuit and that they are innocent third pariies .... They argue that they were merely 'critical' of Internet postings made by Mr. Delfino and Ms. Day when in fact, as the postings themselves reveal, they threatened Defendants, taunted, ridiculed, impersonated, and defamed Defendants .... Without the identity of these two parties. the Defendants will be unable to serve them with process...".
Delfino assumed the risk that the Couri would grant the Motion. He cannot now be heard to complain and be given a second bite at the apple.
Waste of Judicial Resources: The Court spent extensive time reviewing lengthy briefs and hearing oral argument, and even went so far as to obtain the assistance of a research clerk. All of the issues involved in this matter have been briefed and argued. Delfino, in his ex parle letter to the Court, makes no new arguments -- "I believe these two posters have directed their attacks, including bodily harm, against my client" -- this was the identical assertion of the Opposition, and the precise basis for the Court's ruling. With regard to this assertion, Delfino is in the same position as Day -- so even if he were allowed To send out his own subpoena, it too would be quashed. If the Court allows Defendant Delfino to skirt the Order, that will result in the Court being forced to adjudicate another massive Motion to Quash proceeding, the vast majority of which (if not all) will be duplicative.
For the above reasons, this Court should issue a formal instruction that the Order is equally applicable to both Defendants. Should the Court determine that the Order is solely applicable to Defendant Day, the Court should emphasize that it is not ruling or otherwise expressing an opinion as to the merits of Defendant Delfino's efforts to subpoena Yahoo!, as that will obviously be The subject of a motion to quash that is not yet before this Court.
Very truly yours,
Megan E. Gray
For Baker & Hostetler LLP"
with emphasis added!
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