Q It's your testimony that subsequent to October 31st, you have not posted a message?
A I have not posted any messages since 22 September of 2001.
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 rules of civil procedure on behalf of the plaintiff.
The case is captioned Richard Marchese, versus Gary 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 federal rule of - 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:
7 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 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 that nature. 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.
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 22 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 July 17 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 stay 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.
Q You don't -- it could have been after July 13 2001 that you found out about this request from November of 2000?
MR. RICHTER: Asked and answered. He says he doesn't remember.
THE WITNESS: I don't remember the dates.
BY MR. ARGENTAR:
Q When did you -- when did Janice Shell, according to you put you on notice that the plaintiff wanted to inspect your computers?
22 A Well, not according to me a cording to the Raging Bull documents that are online, they're dated, so our -- our best bet would probably be to procure the post of Janice Shell regarding the inspection of my hard drives. I don't remember the dates, but there is a permanent record on the Raging Bull thread.
Q So the answer is you don't recall?
A No, but I also added on where you could find the answer, so --
Q At any point in time -- Now you're not aware, are you of any order issued by the court in this case which said you did not have to turn over your computers for inspection?
A I don't understand the question.
Q You're not aware of any order entered into this case that said that you don't have to turn your computers over for inspection?
A Maybe if you showed me that order, I could answer your question. I have no idea what you're talking about.
MR. ARGENTAR: Can you repeat the question?
(Record read as requested.)
THE WITNESS: Unless you could show me such an order, I have no recollection. If you have an order, I'll be happy to look at it and see if it refreshes my memory.
BY MR. ARGENTAR:
Q So my question to you is this: You're not aware of any order that said you don't have to turn your computers over?
A. I have no idea if it exists or not.
Q You have no idea. You stated earlier that in either the latter part of July 2001, or the early part of August 2001, you removed the hard drives from the Acer and Gateway computers in your possession, correct?
A Can you repeat the question?
MR. ARGENTAR: Thanks.
(Record read as requested.)
THE WITNESS: Can you show me where I stated that, please?
MR. ARGENTAR: No. Did you remove the hard drives from the Acer and the Gateway computers in your possession in late July or early August of 2001.
A I don't remember the exact dates.
Q You didn't state earlier today that it was late July or early August?
A Can you tell me what I said?
Q No.
MR. RICHTER: Well, David, we do have this realtime transcript displayed in front of us, and so I would suggest that if the witness wanted part of his testimony re-read to him, it would be an extraordinarily easy to do at this particular deposition. It's just an observation.
MR. ARGENTAR: I appreciate that.
BY MR. ARGENTAR:
Q You did remove the hard drives from your computers while this litigation was pending, correct?
A Yes.
Q And you removed them after November 8th of 2000; isn't that right?
A Yes.
Q So you took the hard drives out of your computer after your counsel was served with a request for production of --
MR. RICHTER: Excuse me my screen just went blank.
MR. ARGENTAR: It's probably just your screen saver.
(Record read as requested.)
BY MR. ARGENTAR:
Q Computers in November of 2000.
A I removed them after they were hacked and rendered worthless. I don't remember the exact dates.
Q Was it after November of 2000?
A Was what after November 2000.
Q Your removal of the hard drives?
A Yes.
Q So my question to you is: You removed the hard drives on both your Acer and Gateway computers after your counsel was served with the request for inspection of those computers in November of 2000, correct?
A Can you show me the court document you're referring to?
Q I'm not referring to a court document?
A Order. Court order.
Q I'm not referring to a court order?
A Could you tell me the question, I don't understand you.
MR. ARGENTAR: Sure. Please repeat the question.
(Record read as requested.)
THE WITNESS: I don't know that. I don't remember the exact dates that my attorney received this order So my question was if you could show me the order, I could answer the question better?
BY MR. ARGENTAR:
Q There is no order. So why did you remove the hard -- why did you remove the hard drives from your computers?
A My computers were hacked, viruses inserted, graphics uploaded to my web site, the web site
password changed and my computers were rendered worthless and I was informed that reformatting probably wouldn't solve the problem completely and your best bet, if you really want your computers cleaned was to remove the hard drives, change them and add security. At the time I was very naive I had no firewalls, no security so that's what I did.
Q Okay. You took them out of the physical box of the computer, correct?
A I took what out of the computers.
Q The hard drives of both computers?
A Can you ask me the question again, please.
MR. ARGENTAR: Sure. Can you repeat the question?
23 (Record read as requested.)
THE WITNESS: I took what out of the computer box.
BY MR. ARGENTAR:
Q The hard drives?
A Can you ask it in a full question in.
Q Sure. You removed the hard drives, the internal hard drives of your Acer and Gateway computers from the physical shell of the computers in July or August 2001, correct?
A After the hacking, yes.
Q Okay. And what did you do with the hard drives after you removed them?
A I threw them in the trash.
Q Did you need to throw them in the trash to cure or prevent the hacking that you say was occurring on your computers? 1
A Can you ask the question again?
MR. ARGENTAR: Can you repeat the question?
(Record read as requested.)
THE WITNESS: Did I need to throw them in the garbage to prevent the hacking on my computers? Is that what you're asking me?
BY MR. ARGENTAR:
Q Yes.
A No.
Q Why did you throw them away?
A They were worthless.
Q To whom?
A To me.
Q Okay. And you were aware, though, that at the time you threw them away that you were being sued for defamation based on posts you made from those computers, correct?
A Can you repeat the question.
MR. ARGENTAR: Ms. Reporter.
(Record read as requested.)
THE WITNESS: What is the and conjuncting to. I don't understand the full question. And from that. Could you put it in context.
BY MR. ARGENTAR:
Q Take the and out of the question.
A Okay then ask the without the and.
Q At the time you threw your hard drives in the trash?
A Yes.
Q You were aware that Mr. Marchese was suing you for defamation based on posted you made on the Internet from one or both of those computers; is that correct?
A When you say aware, do you aware when I threw them out or in the grand scheme of things I'm asking you a question.
Q At the time you threw these computers in the garbage, you knew you were being sued by Mr. Marchese for defamation based on posts you made from those computers on the Internet?
A Number one Mr. Argentar I didn't though away my computers John where you're coming up with that. Number two, the hard drives were rendered worthless by the hacking of my computers. Was I aware -- if you're asking me if I was aware of Mr. Marchese suing me at the time I threw away the hard drives it wasn't on my mind. If you ask me if I knew I was being sued by Mr. Marchese for defamation, how could you not know? It's on the Internet 24 hours a freaking day, so, yes, I know.
MR. ARGENTAR:
Q Did you attempt to -- you didn't attempt to get any order from the court as to -- as to the disposition of your hard drives during or around the time you threw the hard drives in the garbage?
A It was my understanding at the time that there was no order to get my hard drives yet that it was in the works. I had computers I have to use. The hard drives were rendered worthless by people
posting on the Internet, by the way, and I threw them away because they were worthless.
Q Okay. And did you that voluntarily, correct?
A I did what voluntarily.
Q Nobody told you or nobody forced you to throw these hard drives in the garbage, did they?
A Nobody forced me to throw the hard drives in the garbage? No, nobody forced me to throw the hard drives in the garbage.
Q When you installed or had installed new hard drives in those computers during or around late July, early August of 2001, correct?
A I don't remember the exact dates but I would say it was right around the time of the hacking when I removed the old ones.
Q When was the time of the hacking?
A The first hacking, I believe, was -- or the hacking that I was aware of, of my web site was late July, early August, I believe.
Q And you have posted messages from those computers on the Internet subsequent to the
24 installation of those hard drives, correct?
MR. RICHTER: Object to the question. It's ambiguous. There's no -- it's not clear which set of hard drives you're talking about. There's no date in the question.
THE WITNESS: I don't understand the question.
BY MR. ARGENTAR:
Q Can you repeat the question.
(Record read as requested.)
THE WITNESS: Are you asking me did I post on the Internet after I put in new hard drives.
BY MR. ARGENTAR:
Q Yes.
A I don't -- I don't remember.
Q Well, you stated that you last posted in September of 2001, correct?
A Yeah, I believe that's the last time I posted.
Q Okay. And was your destruction of the old hard drives after September of 2001?
MR. RICHTER: Objection. That's misstating the record. He testified he threw away the hard drives. Destruction is a totally different concept so I object to misstating the record.
THE WITNESS: Number one, Mr. Argentar, I didn't destroy my hard drives. The hackers did. I removed the destroyed hard drives from my computer. That's a criminal act, hacking somebody's computer and destroying the hard drives. Out of my own expense, I went and bought new hard drives so I could operate as a business and a person. All right? So it's my civil liberties that I believe have been impinged upon, and I believe criminal acts have been committed against me. So if you asking me, did I post after I put in the new hard drives, if there are postings of mine from that date to September, then I would probably be assured that I did post using the new hard drives.
BY MR. ARGENTAR:
Q Subsequent to your installation of the new hard drives on both the Acer and the Gateway computers, you installed a software program on both of those computers entitled "evidence eliminator" did you not?
A I didn't understand the first part of the question.
MR. ARGENTAR: Please repeat the question.
(Record read as requested.)
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