Trouble in paradise:
Widmann [representing anti-SLAPP defendant] writes Poppe [representing Varian SLAPP plaintiffs] on Feb 11, 2002
”Dear Mr. Poppe:
I have had a chance to review the latest proposed judgment in the above-captioned matter and I am writing to you with some comments and observations prior to our hearing.
First of all, I simply do not understand why you are insisting on including things in the judgment that Judge Komar has not authorized. In your cover letter to Mr. Falcon and me you again state you are inserting things the Judge has not authorized or ordered. Please remove items from the judgment or at least identify them in some manner so that Judge Komar, Mr. Falcon and I will have the opportunity to see precisely what you are doing.
With respect to the proposed judgment, on page 4, lines 19 and 20, you have set forth the words “performing bodily functions”. Does that include things such as washing your hands and coming your hair? It certainly is not something I heard Judge Komar say during any part of this lawsuit.
On page 6, lines 2 and 3, I do not think you can include present managers, that is, anything past the trial date in this matter. Likewise, on line 5, on page 6, anything past the trial date would be inappropriate since there is absolutely no evidence one way or another in that regard. Again, on page 6, I do not recall the Court mentioning anything about George Zdasiuk’s sister or the World Trade Center or making any orders in that regard.
With respect to page 7, paragraph W, I do not recall the Judge making any such order.
With respect to page 8, paragraph 5, I do not understand this portion of the order you are proposing. Are you saying that Mr. Delfino and Ms. day cannot use the name of these people in an e-posting where the statement is true? I do not believe the Court has ordered that they cannot use their name, that is, put it in a sentence, but simply that they cannot make untrue statements about the person or use some play on the name in an alias or title to a posting.
On page 9, in paragraph 7, there is no mention of any common interest privilege which the Court found existed. You have only set forth a section 47(d) privilege.
With respect to paragraph 8, line 14, your wording is ambiguous. Ms. Day and Mr. Delfino were ordered by Judge Komar to, in good faith, take what steps they could to cause removal of messages as specified. They do not control the web sites listed and have met with resistance in several regards.
Please be advised that Ms. Day objects to the time constraints you have set forth in paragraph 8. This interferes with Ms. Day’s and Mr. Delfino’s relationship with their attorneys and I do not believe the Court has authority to so interfere.
With respect to your footnote 4, I have no recollection of Judge Komar making such a finding. Evidence was presented but no finding was made by either the Court of the jury as to what aliases the Defendants used or did not use. Therefore, I object to inclusion of that exhibit.
My client objects to the time constraints you have set forth in paragraph 11, on page 10.
With respect to the incomplete opening paragraph on page 11, Ms. Day objects to some of the language of this provision. In particular, the language “...and shall be maintained by Ms. Hermle and Mr. Poppe in such a way as to preserve confidentiality of the information contained therein.” What does that mean? Are you going to b e allowed to show it to your clients or someone at Varian? Is the outside public going to be able to see it if they sign a confidentiality agreement? This does not protect the confidentiality of the information.
Continuing on page 11, Ms. Day objects to your proposed paragraph 12(b). She is entitled to go to her children’s school and go to their classes and extracurricular activities. Saying that she can’t do so if she violates some other provision in this judgment is an invasion of her privacy interests and an unlawful restriction on her constitutional rights of free association and travel. It interferes with her relationship with her children and is wholly unwarranted. Therefore, you cannot tie the two together. Furthermore, you have not included anything about Ms. Day’s going to seminars or business meetings at which Ms. Felch or someone else from Varian might be in attendance. She is entitled to do so as her area of interest and that of her company, MoBeta, overlaps that of the corporate Plaintiffs and their employees, including Ms. Felch and Mr. Zdasiuk.
With respect to paragraph 15, I object to the language you have used in this paragraph. It appears that Mr. Falcon and I are being required to remain as counsel for Mr. Delfino and Ms. Day until other counsel is found by them. Furthermore, when Ms. Day or Mr. Delfino obtain new counsel, new counsel should not be required to file a substitution of attorneys form. The reasons for that our obvious. If they sign a substitution of attorneys form, they may very well be liable for all acts of the predecessor counsel in the case. I recall recently, before he went to the 6th District, Judge Rushing making comments to counsel who appeared “specially” before him. He cited a case in which counsel made a “special appearance” in an effort to assist counsel in appearing at a CMC who was thereafter held accountable for all the prior acts of the attorneys for which he was appearing specially. I don’t think an attorney is going to want to do that in this case and, thus, including such a provision may very well restrict Ms. Day’s and Mr. Delfino’s rights and abilities to obtain counsel to represent them.
There are other provisions I would address, but those are primarily for Judge Komar to take a look at. I would suggest that if you would stop trying to include things that weren’t ordered by the court, this process would have been over by now.
Sincerely,
LAW OFFICES OF RANDALL M. WIDMANN”
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