VAR suffers another legal set-back!!!
[PROPOSED] ORDER RE MOTION TO COMPEL ANSWERS TO QUESTIONS AND FOR SANCTIONS RE: DEPOSITION OF JEFF WRIGHT
"Defendant, MARY DAY'S, Motion to Compel Responses to Deposition Questions and for Sanctions Re: the Deposition of Jeff Wright, came on regularly for hearing on Friday, July 20, 2001, the Honorable NEAL CABRINHA presiding. Plaintiffs appeared through one of their attorneys of record, Ms. LYNNE HERMLE while Defendant, MARY DAY, appeared through her attorney of record, RANDALL M. WIDMANN, and Defendant, MICHELANGELO DELFINO, appeared through his attorney of record, GLYNN FALCON.
After counsel for the Plaintiff, LYNNE HERMLE, and counsel for Ms. DAY, RANDALL M. WIDMANN, met and conferred in the hallway pursuant to the instructions of the Court prior to the hearing, the parties stipulated as follows:
1. Plaintiffs will obtain from Mr. Wright a statement in writing executed by him that he will waive service of subpoena for appearance at trial and that counsel for Plaintiffs can accept said subpoena on his behalf. Should Mr. Wright refuse to so agree, then Plaintiffs agree that they will provide Mr. Wright's address and telephone number to Defendants' counsel for attorneys' eyes only.
2. The Plaintiffs agree to allow Mr. Wright to answer question number 4 at issue, to wit, when he personally retained counsel to represent him in this matter. Plaintiffs do not represent that Mr. Wright will necessarily know what date he retained counsel in this matter.
3. This supplementation shall be made part of the Order of this Court.
The Court having read and considered the moving and opposing papers and after argument of counsel for the respective parties, including but not limited to argument by attorney HERMLE that Mr. Wright's deposition should not be resumed and go forward, AND FOR GOOD CAUSE does hereby make the following Order:
1. Defendant, DAY's, Motion is GRANTED as to question number 3 set forth in DAY's Separate Statement of Discovery At Issue and DENIED as to question number 2.
2. Defendants' Motion is GRANTED as to the scope of questions to be asked Mr. Wright and that documents be produced. It was not the intent of the Court in entering its Protective Order regarding the deposition of Mr. Wright to limit the questioning of Mr. Wright or his production of documents as to his percipient knowledge of facts and issues raised in the Complaint or Cross-Complaint, his background and the normal questions to be asked any witness by a party. The Court's intent was to protect the Plaintiffs concerning security measures taken by Plaintiffs since those were directed at Defendants, DELFINO and DAY. The Court finds that the Protective Order's protections sufficiently protect the concerns of the Plaintiffs. As the Protective Order sets forth, the deposition shall not be videotaped, the Defendants shall not be present at the deposition, the information obtained from the deposition shall not be made public or disclosed in any way including to Defendants and any information from the deposition shall be filed under seal should that be necessary in the course of these proceedings. The deposition remains an attorneys' eyes only deposition. The Court finds that these protections adequately address the Plaintiffs' concerns.
3. The Plaintiffs' request that the deposition of Mr. Wright not be resumed is DENIED. The deposition shall go forward at a mutually agreed upon time and date.
4. All requests for sanctions are DENIED.
DATED:
THE HONORABLE NEAL CABRINHA"
Jeff Wright submits to the LAW on July 27, 2001
"Dear Mr. Widmann:
This is to inform you that Jeff Wright hereby authorizes Orrick, Herrington & Sutcliffe LLP to accept service of a trial subpoena on his behalf in the above-referenced matter, and waives his right to personal service. If Mr. Wright moves out of the state, or is no longer employed by Varian at the time of trial, we agree to inform you upon request that he is unavailable for service.
Very truly yours,
Lynne C. Hermle
cc: Glynn P. Falcon, Esq. (via facsimile)
I AGREE TO THE ABOVE:
Jeffrey Wright"
Famed anti-SLAPP attorney Widmann informs the Court of more despicable misdeeds by VAR attorneys on July 30, 2001
"Dear Judge Cabrinha:
I am writing to your Honor because a dispute has arisen over the wording of the Order your Honor made re Defendant's, Mary Day's, Motion to Compel Deposition Questions and For Sanctions heard by your Honor on July 20, 2001, line item 2.
I am enclosing the original of your Honor's Order which I prepared and forwarded to attorney Lynn Hermle, the attorney who appeared for Plaintiffs.
I am also enclosing for your Honor's review a copy of a letter written by Matt Poppe, another of Plaintiffs' attorneys in the above captioned matter which includes his letter to me and a marked up copy of the proposed Order.
I am also enclosing a copy of the Reporter's transcript of the proceedings in this matter on July 20, 2001, for your Honor's review and convenience. Finally, I am enclosing a copy of the Amended Notice of Taking Deposition of the Person Most Knowledgeable which includes a Request for Production of Documents. The date of the deposition was changed pursuant to a request by the Plaintiffs, but the notice itself, as it reveals, does contain a Request for Production of Documents.
Your Honor, the proposed Order I prepared is in conformity with your Honor's ruling at the hearing as a review of the hearing transcript will reveal. I take issue with the proposed changes by Plaintiffs' counsel in that we are entitled to the telephone number of Mr. Wright as set forth in our motion and my understanding of the stipulation was that would be provided. (See par. 1 of the proposed changes by Plaintiffs).
The Plaintiffs' attorneys have modified paragraph two of the proposed order. The position taken by Hermle at the deposition was that Mr. Wright had retained them as "an employee" of the company. My question to Wright, as a review of the moving papers reveal, was that I asked him when he retained counsel to represent him "personally". The distinction, of course, is very important in terms of attorney-client privilege and even whether aprivilege exists as was brought forth in the moving papers themselves. Furthermore, I did not limit my question to the retention of Ms. Hermle or Mr. Poppe. The question was when he personally retained counsel to represent him in this matter. Again, a review of the transcript will establish the information they agreed to produce was when Mr. Wright retained counsel "personally" to represent him in this matter.
As to the other changes proposed by Mr. Poppe, Ms. Hermle did argue at the hearing that Mr. Wright's deposition should not be resumed and go forward. Indeed, your Honor made a comment regarding her willingness to allow Mr. Wright to answer some questions, yet not be allowed to be questioned in a deposition again. I well remember the remark which is reflected in the transcript since I heard snickering in the gallery at the time Ms. Hermle made her comment.
As for the elimination of the words "documents", proposed by Plaintiffs again, your Honor directed the Order not only to the testimony of the witness, but also the document production. As the Amended Notice reflects, Mr. Wright was supposed to bring with him documents to his deposition. I have no doubt whatsoever that it had been and would remain the intent of Ms. Hermle not to allow the witness to produce documents at his deposition, and take the position that he is not required to produce documents, etc. Since your Honor made mention of the document request in the Order, it should be reflected in the final Order of this Court so no further problems ensue.
I have included the original of the Order as well as copies for file endorsement along with a self-addressed stamped envelope for return to us. I thank your Honor for your consideration and have notified counsel of this communication to the Court via a copy of this letter.
Sincerely,
LAW OFFICES OF RANDALL M. WIDMANN" |
