The continuing saga – Part 1
Reformatted for easier reading – errors in the ‘original’ have not been corrected.
In re: Marchese vs. Dobry
DATE: March 29, 2002
This is the continued videotaped deposition of Gary Dobry, as being taken pursuant to federal rules of civil procedure on behalf of the plaintiff.
The case is captioned Richard Marchese, versus Gary
14 Dobry. Case number 00 cv 5606.
Will the attorneys please identify themselves for the video record?
MR. ARGENTAR: David Argentar appearing on behalf of the plaintiff, Richard Marchese.
MR. RICHTER: And Tobin Richter appearing on behalf of the defendant and the deponent Gary Dobry.
THE VIDEOGRAPHER: Will the court reporter please identify herself and swear in the witness.
(Witness sworn in.)
{WITNESS NAME}
having been first duly sworn,was examined and testified as follows:
DIRECT EXAMINATION
THE VIDEOGRAPHER: Please proceed.
BY MR. ARGENTAR:
Q Thank you. This is as the videographer noted the continued videotaped deposition of Gary Dobry. Mr. Dobry, you do understand that today, as in your
last -- in your last session of this deposition, that you are under oath here today?
A Yes.
Q Okay. Before I begin my examination, I want to make a statement for the record. Counsel knows that on March 18th, of this year, I sent him correspondence advising him of certain objections I had to the nature and form of objections he made in the previous session of this deposition, as well as issues I had with instructions not to answer that he gave Mr. Dobry. I advised counsel in that letter that I considered those things to be in violations of the
21 federal rule of 30, I also advised counsel that if -- that if he continued to make depositions in form, that I believe violated the rule or advised his client not to answer questions in violation of the rule, that I would terminate the deposition, seek the appropriate relief from the court and continue this deposition at a later date. And I'm stating that on the record here today: And we are prepared to proceed.
BY MR. ARGENTAR:
Q Mr. Dobry, are you on any medication today that would affect your memory or ability to testify truthfully?
A Benadryl. No.
Q Do you have any other medical condition?
A No.
Q That would affect --
A Oh, I'm sorry. I'm sorry.
Q Just to refresh, since it's been a number of months, I'm going to be asking you questions. You may know what I'm going to be asking you. But it is important that you let me complete my question before you answer so we have a clear record for the court reporter. If you don't understand a question I'm answering -- or I'm asking you, tell me and I will rephrase it; otherwise, I will assume that you
24 understand what I'm asking you, and that your answer is based on a full understanding of my question.Fair enough.
A Mm-hmm. Yes.
Q Also, the common problem of saying mm-hmm, uh-uh happens to everyone. It's important that your answers be verbal. Yeses, nos, things of thatnature.
8 Prior to your deposition today, did you speak with anybody, other than your attorney regarding your deposition.
A No.
Q So between October 31st, when we were last here, and today's date, you have had no conversations with anyone regarding your deposition, other than counsel?
A I've had no conversations about this dep with anybody except Tobin Richter.
Q Have you exchanged any emails or correspondence with anyone regarding your deposition here today?
A No.
Q Does that include instant messages on America Online?
A Yes, had includes instant messages on America Online.
Q Have you reviewed any documents in preparation for your deposition here today?
A Yes.
Q What have you reviewed?
A Documents that my lawyer had me review last Friday to prepare for the deposition.
Q What documents did you review?
A Exhibits from the amended complaint.
10 Q Any other documents?
A Not that I recall.
Q Have you reviewed the transcript of the first session of your deposition?
A I skimmed it.
Q When did you skim it?
A When I received it.
Q When was that?
A Shortly after the last depo, the amount of mail time, when I received it in the mail. I don't recall the exact date.
Q You haven't reviewed it in the last month?
A No.
Q Have you -- has your residence changed since October 31st of last year?
A No.
Q Has your phone number changed?
A No.
Q Are you still operating pugs boxing gym and fitness center?
A Yes.
Q And it's still a going concern, a going business?
A Yes.
Q Do you still own the domain name onthecanvas.com?
A Yes.
Q And you still control the content that appears on that web site?
A Yes.
Q Between October 31st and today, have you posted any messages on any Internet message board?
A No.
Q It's your testimony that subsequent to October 31st, you have not posted a message?
A I have not posted any messages since September of 2001.
Q Do you recall when in September you last posted?
A No.
Q From what computer did you last post?
A I don't remember.
Q Was it either the -- strike that. You've identified in your discovery responses that you've submitted in this deposition two computers on which you have transmitted or posted messages on the Internet, an Acer computer and Gateway computer; is that correct.
A That's correct.
Q And you're still in possession of those two computers, correct?
A Yes.
Q The hard drives in those computers were changed in July of 2001, correct?
A I believe it was either the last week of July17 or the first week in August, I'm not sure of the exact date.
Q This lawsuit, I will represent to you, was filed in August of 2000. You saw -- or you had seen a copy of the original complaint filed by Mr. Marchese at or around the time the lawsuit was filed?
A Yes.
Q You reviewed a -- you reviewed the allegations contained in the complaint?
A Yes.
Q And at the time you initially received the complaint in 2000, you are aware that Mr. Marchese was alleging that you posted false and defamatory messages on the Internet regarding him; is that correct?
A Yes.
Q And you knew at the time that this complaint was filed that the messages he accused you of posting, are those you had admitted authoring, were sent from either the Acer computer or the Gateway computer in your possession, correct?
A Yes.
Q I'm going to show you what I will have marked as Dobry exhibit number 10.
({WIT NAME} Exhibit No. {Number} marked as requested.)
BY MR. ARGENTAR:
Q Would you take a look at this document.
A (Witness reviewing the document.).
Q And let me know if you've ever seen it before.
A I may have. I don't recall seeing it.
Q For the record, exhibit number 10 is a request for production and inspection of computer served upon Gary Dobry in this litigation and according to the certificate of service, it was served on your former attorney Mr. Martucci on November 8th, 2000. During or around November of 2000, did -- did you become aware that the plaintiff in this action was seeking to inspect your computers?
A I remember Mr. Martucci telling me that you wanted me to drop --
MR. RICHTER: Objection. Attorney-client privilege. Direct you not to answer.
THE WITNESS: Oh, okay.
THE WITNESS: I direct you not to answer anything that requires conversations with Mr. Martucci.
BY MR. ARGENTAR:
Q Did you become -- okay. Fair enough. Did you become aware that the plaintiff in this action wanted to inspect your computers?
A More so from Janice Shell's postings on the Internet. I don't recall this. I remember Janice Shell posting about my hard drives ad nauseam and getting my computers.
Q My question is: During or around November 2000, were you aware that the plaintiff in this case wanted to inspect your computers?
A Job the dates, no.
Q At some point in time, you became aware that he wanted to inspect your computers; isn't that right?
A Yes.
Q And that would have been prior to July or August of 2001, would it not?
A I don't remember the exact dates. |
