This is the first part of four very long posts made on the RB AZNT board, on 21 Oct 02. All four posts were deleted on 22 Oct 02, and having mentioned today that I had made copies of them, my post was deleted, and I now seem to have been suspended by RB - no big deal to me, but it means that someone, presumably Dobry, is extremely nervous. I have no idea who "arlenp" is, and there are those who believed it was Dobry himself, but I don't think so.
The original RB posts appear to have been a cut and paste of an OCR file which was not proof-read, leading to some funny errors.....
By: arlenp 21 Oct 2002, 02:46 PM EDT Msg. 179423 of 179431(This msg. is a reply to 179422 by Bowdrie.)
PAGE 1 12 In re: Marchese vs. Dobry 13 DATE: March 29, 2002 PAGE 2 10
This is the continued videotaped deposition 11 of Gary Dobry, as being taken pursuant to federal 12 rules of civil procedure on behalf of the plaintiff.
13 The case is captioned Richard Marchese, versus Gary
14 Dobry. Case number 00 cv 5606.Will the attorneys
15 please identify themselves for the video record?
16 MR. ARGENTAR: David Argentar appearing on behalf
17 of the plaintiff, Richard Marchese.
18 MR. RICHTER: And Tobin Richter appearing on behalf of the defendant and the deponent Gary Dobry.
20 THE VIDEOGRAPHER: Will the court reporter please
21 identify herself and swear in the witness.
22 (Witness sworn in.)
23 {WITNESS NAME}
24 having been first duly sworn,
PAGE 3
1 was examined and testified as follows:
2 DIRECT EXAMINATION
3 THE VIDEOGRAPHER: Please proceed.
4 BY MR. ARGENTAR:
5 Q Thank you. This is as the videographer noted
6 the continued videotaped deposition of Gary Dobry.
7 Mr. Dobry, you do understand that today, as in your
8 last -- in your last session of this deposition, that
9 you are under oath here today?
10 A Yes.
11 Q Okay. Before I begin my examination, I want
12 to make a statement for the record. Counsel knows
13 that on March 18th, of this year, I sent him
14 correspondence advising him of certain objections I
15 had to the nature and form of objections he made in
16 the previous session of this deposition, as well as
17 issues I had with instructions not to answer that he
18 gave Mr. Dobry.
19 I advised counsel in that letter that I
20 considered those things to be in violations of the
21 federal rule of 30, I also advised counsel that if --
22 that if he continued to make depositions in form,
23 that I believe violated the rule or advised his
24 client not to answer questions in violation of the
PAGE 4
1 rule, that I would terminate the deposition, seek the
2 appropriate relief from the court and continue this
3 deposition at a later date.
4 And I'm stating that on the record here
5 today: And we are prepared to proceed.
6 BY MR. ARGENTAR:
7 Q Mr. Dobry, are you on any medication today 8 that would affect your memory or ability to testify
9 truthfully?
10 A Benadryl. No.
11 Q Do you have any other medical condition?
12 A No.
13 Q That would affect --
14 A Oh, I'm sorry. I'm sorry.
15 Q Just to refresh, since it's been a number of
16 months, I'm going to be asking you questions. You
17 may know what I'm going to be asking you. But it is
18 important that you let me complete my question before
19 you answer so we have a clear record for the court
20 reporter.
21 If you don't understand a question I'm
22 answering -- or I'm asking you, tell me and I will
23 rephrase it; otherwise, I will assume that you
24 understand what I'm asking you, and that your answer PAGE 5
1 is based on a full understanding of my question.
2 Fair enough.
3 A Mm-hmm. Yes.
4 Q Also, the common problem of saying mm-hmm,
5 uh-uh happens to everyone. It's important that your
6 answers be verbal. Yeses, nos, things of that
7 nature.
8 Prior to your deposition today, did you
9 speak with anybody, other than your attorney
10 regarding your deposition.
11 A No.
12 Q So between October 31st, when we were last
13 here, and today's date, you have had no conversations
14 with anyone regarding your deposition, other than
15 counsel?
16 A I've had no conversations about this dep with
17 anybody except Tobin Richter.
18 Q Have you exchanged any emails or
19 correspondence with anyone regarding your deposition
20 here today?
21 A No.
22 Q Does that include instant messages on America
23 online?
24 A Yes, had includes instant messages on America
PAGE 6
1 online.
2 Q Have you reviewed any documents in
3 preparation for your deposition here today?
4 A Yes.
5 Q What have you reviewed?
6 A Documents that my lawyer had me review last
7 Friday to prepare for the deposition.
8 Q What documents did you review?
9 A Exhibits from the amended complaint.
10 Q Any other documents?
11 A Not that I recall.
12 Q Have you reviewed the transcript of the first
13 session of your deposition?
14 A I skimmed it.
15 Q When did you skim it?
16 A When I received it.
17 Q When was that?
18 A Shortly after the last depo, the amount of
19 mail time, when I received it in the mail. I don't
20 recall the exact date.
21 Q You haven't reviewed it in the last month?
22 A No.
23 Q Have you -- has your residence changed since
24 October 31st of last year?
PAGE 7
1 A No.
2 Q Has your phone number changed?
3 A No.
4 Q Are you still operating pugs boxing gym and
5 fitness center?
6 A Yes.
7 Q And it's still a going concern, a going
8 business?
9 A Yes.
10 Q Do you still own the domain name
11 onthecanvas.com?
12 A Yes.
13 Q And you still control the content that
14 appears on that web site?
15 A Yes.
16 Q Between October 31st and today, have you
17 posted any messages on any Internet message board?
18 A No.
19 Q It's your testimony that subsequent to
20 October 31st, you have not posted a message?
21 A I have not posted any messages since
22 September of 2001.
23 Q Do you recall when in September you last
24 posted?
PAGE 8
1 A No.
2 Q From what computer did you last post?
3 A I don't remember.
4 Q Was it either the -- strike that.
5 You've identified in your discovery
6 responses that you've submitted in this deposition
7 two computers on which you have transmitted or posted
8 messages on the Internet, an Acer computer and
9 gateway computer; is that correct.
10 A That's correct.
11 Q And you're still in possession of those two
12 computers, correct?
13 A Yes.
14 Q The hard drives in those computers were
15 changed in July of 2001, correct?
16 A I believe it was either the last week of July 17 or the first week in August, I'm not sure of the
18 exact date.
19 Q This lawsuit, I will represent to you, was
20 filed in August of 2000. You saw -- or you had seen
21 a copy of the original complaint filed by
22 Mr. Marchese at or around the time the lawsuit was
23 filed?
24 A Yes.
PAGE 9
1 Q You reviewed a -- you reviewed the
2 allegations contained in the complaint?
3 A Yes.
4 Q And at the time you initially received the
5 complaint in 2000, you are aware that Mr. Marchese
6 was alleging that you posted false and defamatory
7 messages on the Internet regarding him; is that
8 correct?
9 A Yes.
10 Q And you knew at the time that this complaint
11 was filed that the messages he accused you of
12 posting, are those you had admitted authoring, were
13 sent from either the Acer computer or the Gateway
14 computer in your possession, correct?
15 A Yes.
16 Q I'm going to show you what I will have marked
17 as Dobry exhibit number 10.
18 ({WIT NAME} Exhibit No. {Number} marked as
19 requested.)
20 BY MR. ARGENTAR:
21 Q Would you stay a look at this document.
22 A (Witness reviewing the document.).
23 Q And let me know if you've ever seen it
24 before.
PAGE 10
1 A I may have. I don't recall seeing it.
2 Q For the record, exhibit number 10 is a
3 request for production and inspection of computer
4 served upon Gary Dobry in this litigation and
5 according to the certificate of service, it was
6 served on your former attorney Mr. Martucci on
7 November 8th, 2000. During or around November of
8 2000, did -- did you become aware that the plaintiff
9 in this action was seeking to inspect your computers?
10 A I remember Mr. Martucci telling me that you
11 wanted me to drop --
12 MR. RICHTER: Objection. Attorney-client
13 privilege. Direct you not to answer.
14 THE WITNESS: Oh, okay.
15 THE WITNESS: I direct you not to answer anything
16 that requires conversations with Mr. Martucci.
17 BY MR. ARGENTAR:
18 Q Did you become -- okay. Fair enough.
19 Did you become aware that the plaintiff in
20 this action wanted to inspect your computers?
21 A More so from Janice Shell's postings on the
22 Internet. I don't recall this. I remember Janice
23 Shell posting about my hard drives ad nauseam and
24 getting my computers.
PAGE 11
1 Q My question is: During or around November
2 2000, were you aware that the plaintiff in this case
3 wanted to inspect your computers?
4 A Job the dates, no.
5 Q At some point in time, you became aware that
6 he wanted to inspect your computers; isn't that
7 right?
8 A Yes.
9 Q And that would have been prior to July or
10 August of 2001, would it not?
11 A I don't remember the exact dates.
12 Q You don't -- it could have been after July 13 2001 that you found out about this request from
14 November of 2000?
15 MR. RICHTER: Asked and answered. He says he
16 doesn't remember.
17 THE WITNESS: I don't remember the dates.
18 BY MR. ARGENTAR:
19 Q When did you -- when did Janice Shell,
20 according to you put you on notice that the plaintiff
21 wanted to inspect your computers?
22 A Well, not according to mea cording to the
23 Raging Bull documents that are online, they're dated,
24 so our -- our best bet would probably be to procure
PAGE 12
1 the post of Janice Shell regarding the inspection of
2 my hard drives. I don't remember the dates, but
3 there is a permanent record on the Raging Bull
4 thread.
5 Q So the answer is you don't recall?
6 A No, but I also added on where you could find
7 the answer, so --
8 Q At any point in time --
9 Now you're not aware, are you of any order
10 issued by the court in this case which said you did
11 not have to turn over your computers for inspection?
12 A I don't understand the question.
13 Q You're not aware of any order entered into
14 this case that said that you don't have to turn your
15 computers over for inspection?
16 A Maybe if you showed me that order, I could
17 answer your question. I have no idea what you're
18 talking about.
19 MR. ARGENTAR: Can you repeat the question?
20 (Record read as requested.)
21 THE WITNESS: Unless you could show me such an
22 order, I have no recollection. If you have an order,
23 I'll be happy to look at it and see if it refreshes
24 my memory.
PAGE 13
1 BY MR. ARGENTAR:
2 Q So my question to you is this: You're not
3 aware of any order that said you don't have to turn
4 your computers over?
5 A. I have no idea if it exists or not.
7 Q You have no idea.
8 You stated earlier that in either the latter
9 part of July 2001, or the early part of August 2001,
10 you removed the hard drives from the Acer and Gateway
11 computers in your possession, correct?
12 A Can you repeat the question?
13 MR. ARGENTAR: Thanks.
14 (Record read as requested.)
15 THE WITNESS: Can you show me where I stated
16 that, please?
17 MR. ARGENTAR: No. Did you remove the hard
18 drives from the Acer and the Gateway computers in
19 your possession in late July or early August of 2001.
20 A I don't remember the exact dates.
21 Q You didn't state earlier today that it was
22 late July or early August?
23 A Can you tell me what I said?
24 Q No.
PAGE 14
1 MR. RICHTER: Well, David, we do have this
2 realtime transcript displayed in front of us, and so
3 I would suggest that if the witness wanted part of
4 his testimony re-read to him, it would be an
5 extraordinarily easy to do at this particular
6 deposition. It's just an observation.
7 MR. ARGENTAR: I appreciate that.
8 BY MR. ARGENTAR:
9 Q You did remove the hard drives from your
10 computers while this litigation was pending, correct?
11 A Yes.
12 Q And you removed them after November 8th of
13 2000; isn't that right?
14 A Yes.
15 Q So you took the hard drives out of your
16 computer after your counsel was served with a request
17 for production of --
18 MR. RICHTER: Excuse me my screen just went
19 blank.
20 MR. ARGENTAR: It's probably just your screen
21 saver.
22 (Record read as requested.)
23 BY MR. ARGENTAR:
24 Q Computers in November of 2000.
PAGE 15
1 A I removed them after they were hacked and
2 rendered worthless. I don't remember the exact
3 dates.
4 Q Was it after November of 2000?
5 A Was what after November 2000.
6 Q Your removal of the hard drives?
7 A Yes.
8 Q So my question to you is: You removed the
9 hard drives on both your Acer and Gateway computers
10 after your counsel was served with the request for
11 inspection of those computers in November of 2000,
12 correct?
13 A Can you show me the court document you're
14 referring to?
15 Q I'm not referring to a court document?
16 A Order. Court order.
17 Q I'm not referring to a court order?
18 A Could you tell me the question, I don't
19 understand you.
20 MR. ARGENTAR: Sure. Please repeat the question.
21 (Record read as requested.)
22 THE WITNESS: I don't know that. I don't
23 remember the exact dates that my attorney received
24 this order
PAGE 16
1 So my question was if you could show me the
2 order, I could answer the question better?
3 BY MR. ARGENTAR:
4 Q There is no order. So why did you remove the
5 hard -- why did you remove the hard drives from your
6 computers?
7 A My computers were hacked, viruses inserted,
8 graphics uploaded to my web site, the web site
9 password changed and my computers were rendered
10 worthless and I was informed that reformatting
11 probably wouldn't solve the problem completely and
12 your best bet, if you really want your computers
13 cleaned was to remove the hard drives, change them
14 and add security. At the time I was very naive I had
15 no firewalls, no security so that's what I did.
16 Q Okay. You took them out of the physical box
17 of the computer, correct?
18 A I took what out of the computers.
19 Q The hard drives of both computers?
20 A Can you ask me the question again, please.
21 MR. ARGENTAR: Sure. Can you repeat the
22 question?
23 (Record read as requested.)
24 THE WITNESS: I took what out of the computer
PAGE 17
1 box.
2 BY MR. ARGENTAR:
3 Q The hard drives?
4 A Can you ask it in a full question in.
5 Q Sure. You removed the hard drives, the
6 internal hard drives of your Acer and Gateway
7 computers from the physical shell of the computers in
8 July or August 2001, correct?
9 A After the hacking, yes.
10 Q Okay. And what did you do with the hard
11 drives after you removed them?
12 A I threw them in the trash.
13 Q Did you need to throw them in the trash to
14 cure or prevent the hacking that you say was
15 occurring on your computers? 1
6 A Can you ask the question again?
17 MR. ARGENTAR: Can you repeat the question?
18 (Record read as requested.)
19 THE WITNESS: Did I need to throw them in the 20 garbage to prevent the hacking on my computers? Is
21 that what you're asking me?
22 BY MR. ARGENTAR:
23 Q Yes.
24 A No.
PAGE 18
1 Q Why did you throw them away?
2 A They were worthless.
3 Q To whom?
4 A To me.
5 Q Okay. And you were aware, though, that at
6 the time you threw them away that you were being sued
7 for defamation based on posts you made from those
8 computers, correct?
9 A Can you repeat the question.
10 MR. ARGENTAR: Ms. Reporter.
11 (Record read as requested.)
12 THE WITNESS: What is the and conjuncting to. I
13 don't understand the full question. And from what.
14 Could you put it in context.
15 BY MR. ARGENTAR:
16 Q Take the and out of the question.
17 A Okay then ask the without the and.
18 Q At the time you threw your hard drives in the
19 trash?
20 A Yes.
21 Q You were aware that Mr. Marchese was suing
22 you for defamation based on posted you made on the
23 Internet from one or both of those computers; is that
24 correct?
PAGE 19
1 A When you say aware, do you aware when I threw
2 them out or in the grand scheme of things I'm asking
3 you a question.
4 Q At the time you threw these computers in the
5 garbage, you knew you were being sued by Mr. Marchese
6 for defamation based on posts you made from those
7 computers on the Internet?
8 A Number one Mr. Argentar I didn't though away
9 my computers John where you're coming up with that.
10 Number two, the hard drives were rendered worthless
11 by the hacking of my computers. Was I aware -- if
12 you're asking me if I was aware of Mr. Marchese suing
13 me at the time I threw away the hard drives it wasn't
14 on my mind. If you ask me if I knew I was being sued
15 by Mr. Marchese for defamation, how could you not
16 know? It's on the Internet 24 hours a freaking day,
17 so, yes, I know.
18 MR. ARGENTAR:
19 Q Did you attempt to -- you didn't attempt to
20 get any order from the court as to -- as to the
21 disposition of your hard drives during or around the
22 time you threw the hard drives in the garbage?
23 A It was my understanding at the time that
24 there was no order to get my hard drives yet that it PAGE 20
1 was in the works. I had computers I have to use.
2 The hard drives were rendered worthless by people
3 posting on the Internet, by the way, and I threw them
4 away because they were worthless.
5 Q Okay. And did you that voluntarily, correct?
6 A I did what voluntarily.
7 Q Nobody told you or nobody forced you to throw
8 these hard drives in the garbage, did they?
9 A Nobody forced me to throw the hard drives in
10 the garbage? No, nobody forced me to throw the hard
11 drives in the garbage.
12 Q When you installed or had installed new hard
13 drives in those computers during or around late July,
14 early August of 2001, correct?
15 A I don't remember the exact dates but I would
16 say it was right around the time of the hacking when
17 I removed the old ones.
18 Q When was the time of the hacking?
19 A The first hacking, I believe, was -- or the
20 hacking that I was aware of, of my web site was late
21 July, early August, I believe.
22 Q And you have posted messages from those
23 computers on the Internet subsequent to the
24 installation of those hard drives, correct?
PAGE 21
1 MR. RICHTER: Object to the question. It's
2 ambiguous. There's no -- it's not clear which set of
3 hard drives you're talking about. There's no date in
4 the question.
5 THE WITNESS: I don't understand the question.
6 BY MR. ARGENTAR:
7 Q Can you repeat the question.
8 (Record read as requested.)
9 THE WITNESS: Are you asking me did I post on the
10 Internet after I put in new hard drives.
11 BY MR. ARGENTAR:
12 Q Yes.
13 A I don't -- I don't remember.
14 Q Well, you stated that you last posted in
15 September of 2001, correct?
16 A Yeah, I believe that's the last time I
17 posted.
18 Q Okay. And was your destruction of the old
19 hard drives after September of 2001?
20 MR. RICHTER: Objection. That's misstating the
21 record. He testified he threw away the hard drives.
22 Destruction is a totally different concept so I
23 object to misstating the record.
24 THE WITNESS: Number one, Mr. Argentar, I didn't
PAGE 22
1 destroy my hard drives. The hackers did. I removed
2 the destroyed hard drives from my computer. That's a
3 criminal act, hacking somebody's computer and
4 destroying the hard drives. Out of my own expense, I
5 went and bought new hard drives so I could operate as
6 a business and a person. All right?
7 So it's my civil liberties that I believe
8 have been impinged upon, and I believe criminal acts
9 have been committed against me.
10 So if you asking me, did I post after I put
11 in the new hard drives, if there are postings of mine
12 from that date to September, then I would probably be
13 assured that I did post using the new hard drives.
14 BY MR. ARGENTAR:
15 Q Subsequent to your installation of the new
16 hard drives on both the Acer and the Gateway
17 computers, you installed a software program on both
18 of those computers entitled "evidence eliminator" did
19 you not?
20 A I didn't understand the first part of the
21 question.
22 MR. ARGENTAR: Please repeat the question.
23 (Record read as requested.)
More..... |
