6/26/02 [VAR & VSEA] "Varian Foes May Keep On Posting
A 6th DCA ruling stays enforcement of the judgment against two irate former employees.
By Craig Anderson
Daily Journal Staff Writer
SAN JOSE - Michelangelo Delfino and Mary Day, the two research scientists who were found liable last year for defaming their former employer on Internet Message boards and faced possible jail time for violating a judge’s injunction, can keep on posting.
The 6th District Court of Appeal on Tuesday stayed enforcement of the judgment and injunction until it decides whether to uphold the jury’s verdict and judge’s decision. That means the plaintiff companies, Varian Medical Systems and Varian Semiconductor Associates, cannot enforce the $775,000 judgment against the pair until then.
The ruling also indefinitely postpones next month’s contempt hearing in which Delfino and Day faced sanctions - possibly including jail time - for violating Santa Clara County Superior Court Judge Jack Komar’s permanent injunction barring them from making a variety of assertions about the plaintiffs. Attorneys on both sides said they did not expect the case to even be heard by the appellate panel until next year.
”I’m absolutely ecstatic,” Delfino said. “Free speech is alive and well in California.”
Varian is seeking to have Delfino and Day declared in contempt for continuing to post messages that include material forbidden by Komar’s permanent injunction. Its attorneys also were trying to question Delfino about his assets so the company could collect the damage award, a process that was halted when the appeals court granted a temporary stay in April.
The company - and its legal team at Orrick, Herrington & Sutcliffe - has been determined to stop Delfino and Day from repeating what it says are lies about its executives and managers. Delfino and Day have refused to back down, publishing more than 14,000 messages over the past several years and saying they will continue to post “until we’re dead.”
That continued even after the verdict and injunction came down.
One message with a link to Delfino and Day’s Web site led to a mock deposition of one of the individual plaintiffs. “The following is an eyewitness commentary of [George] Zdasiuk’s truthful and complete testimony (some hyperbole),” the site announces. It continued with his alleged confession that he was “sick” and untroubled by the death of his sister.
Lynne Hermle, an Orrick partner who represents Varian, has said the mock deposition violates the injunction’s prohibition against impersonating any of the plaintiffs, and against accusing Zdasiuk of being mentally ill and not upset by his sister’s death. It is one of 30 postings cited by Varian as violations of Komar’s order.
The Varian case is believed to be the first lawsuit to go to trial against people who post caustic commentary on Internet message boards. Most such complaints are dropped once the plaintiffs, using the discovery process, learns the identities of the authors. Some individuals have successfully fought back to prevent their names from being released.
Matthew Poppe, another Orrick attorney, said Tuesday he did not believe the stay inn Varian Medical Systems, Inc. v. Delfino, H024214, is a bad sign for the company. The court, knowing this is a novel case, “wants to take a hard look at it,” he said.
Jon Eisenberg, an attorney with Encino’s Horvitz & Levy who represents Delfino and Day, was nonetheless heartened by the decision because writs of supersedeas - suspending the power of a trial court - are not often granted. “We’ve passed the first hurdle,” he said."
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