[VAR] “Judge Silences Ravings of Angry Ex-Employees
By Shannon Lafferty
The Recorder
December 13, 2001
A Santa Clara Superior Court judge said late Tuesday he would muzzle two research scientists who have posted more than 13,000 Internet messages insulting their former employer and bosses.
While a jury continued to deliberate over defamation and related claims, Judge Jack Komar verbally issued a finding of fact that defendants Michelangelo Delfino and Mary Day had defamed former employer Varian Medical Systems Inc. and two former bosses. He then indicated he would enjoin them from making further specific defamatory statements.
Komar said that he was "at a loss" to understand Day and Delfino's motives. "But I certainly find that there has been a very serious defamation, a very serious harassment in this case by the defendants, by both of them. It is without remorse or repentance. There's a promise and a commitment to do it until they're dead ... And I take them at their word."
Citing a record of repetitive and harassing Internet postings, Komar said he would enjoin Day and Delfino from calling plaintiffs Varian manager Susan Felch, Vice President George Zdasiuk and other witnesses "chronic liars" and "homophobic."
He will also enjoin them from writing messages accusing the plaintiffs of having sexual affairs, videotaping company bathrooms, being a danger to children, being mentally ill, committing perjury, and creating pornography at the workplace. He also forbade Day and Delfino from using the names of Varian employees as aliases without written consent.
Citing a "clear and present danger" risk, Komar also enjoined Day and Delfino from posting messages about plaintiffs' financial dealings and then listing the location of their children and family as a sort of veiled threat.
Komar said, however, that he would not enjoin the defendants from calling Zdasiuk or other corporate officers "sick."
"When you start talking about the CEO or the vice president of a corporation, there is some leeway to characterize decisions made by the CEO that do not relate to a fact which are expressed opinions," Komar said. "It may be done with the worst of motives, but it is not defamatory."
Komar said he had weighed constitutional speech protections in making his decision.
"I strongly believe in the right of free speech and the First Amendment," Komar said. "And when people defame others by untrue statements, that clearly dishonors free speech, defames it as well as defames the people that are the object of the defamation."
Komar said he would later address requests by Varian attorneys for an injunction aimed at other harassment.
Orrick, Herrington & Sutcliffe partner Lynne Hermle, who represents Varian along with associate Matthew Poppe, said it was gratifying to finally hear a judge agree with what Varianv has been arguing all along during the eight-week trial.
Randall Widmann, who is representing Day, did not return calls Wednesday. However, Day and Delfino have indicated they would appeal any injunction.
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