More Varian efforts to roadblock the discovery process:
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY PLAINTIFFS, J. TRACY O'ROURKE, AND RICHARD AURELIO (1) TO STAY THE TAKING OF THEIR DEPOSITIONS, (2) TO QUASH THE NOTICE OF DEPOSITION OR FOR PROTECTIVE ORDER, AND (3) FOR MONETARY SANCTIONS
"1. INTRODUCTION
Defendant Michelangelo Delfino has failed to meet his burden of showing, good cause to take the depositions of Richard Aurelio (Varian Semiconductor's president and CEO), J. Tracy O'Rourke (the chairman of Varian Semiconductor's board of directors), or plaintiff George Zdasiuk. Delfino does not identify a single legitimate area of questioning that he could not have conducted during the original depositions of Messrs. Aurelio and Zdasiuk. Nor does he identify a single legitimate area of questioning in which Messrs. Aurelio or O'Rourke could be expected to have superior knowledge to lower-level employees. If anything, Delfino's opposition brief makes even more clear the fact that the depositions are intended to burden and harass Plaintiffs and the witnesses, not to engage in a serious quest for relevant facts. Accordingly, the deposition notice should be quashed as to these three witnesses and monetary sanctions should be awarded against Delfino and his counsel.
Plaintiffs wish to note up front that, contrary to the allegation in Delfino's brief, Plaintiffs are cooperating in scheduling the nine other depositions noticed by Delfino and Day for the months of January and February 2001.
II. ARGUMENT
A. There Is No Basis for Re-Deposing Mr. Aurelio, a Top Executive of Varian Semiconductor.
Delfino bears the burden of justifying a second deposition of Richard Aurelio, the president and CEO of Varian Semiconductor, for three reasons. First, Mr. Aurelio was already deposed once in this action. "Once any party has taken the deposition of any natural person....[the party] may [not] take a subsequent deposition of that deponent." Cal. Code of Civ. Proc. ß 2025(t). Second, the length of the deposition was limited by court order in order to "protect ... Mr. Aurelio from annoyance and embarrassment." Poppe Decl., Ex. E.1 Delfino bears a heavy burden to justify setting aside this prior court order and subjecting Mr. Aurelio to additional annoyance and embarrassment. Third, Mr. Aurelio is a top executive of Varian Semiconductor. See id., Ex. B. Before taking his deposition again, Delfino must "make a colorable showing of good cause that the high-level official possesses necessary to the case" that cannot be obtained "through less-intrusive methods." Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289 (1992). Such precautions are necessary because high-level depositions such as this one "raise a tremendous potential for discovery abuse and harassment." Id. at 1286.
Delfino argues that he should be allowed to depose Mr. Aurelio again because Mr. Aurelio submitted a declaration subsequent to his prior deposition. However, Delfino does not identify a single factual issue raised by the declaration on which Delfino needs additional testimony from Mr. Aurelio. For the most part, the declaration merely restates or describes the contents of Internet messages posted by Delfino -- messages posted months after Mr. Aurelio was deposed. See Delfino Opp. Brf., Ex. B.2 The messages speak for themselves; it would serve no purpose to require that Mr. Aurelio testify about them.
Moreover, the declaration does not directly relate to issues raised by the complaint. When the declaration was filed, it was expected that this case would be going to trial in federal court within 30-60 days. See Poppe Reply Decl., Ex. A.3 Plaintiffs believed that Delfino was trying to harass and intimidate potential trial witnesses by posting highly threatening messages about them. Mr. Aurelio submitted his declaration in connection with a motion for a TRO to stop the harassment of witnesses.4 The Federal court granted the TRO. Id., Ex. B. The TRO enjoined Delfino from harassing Varian employees, their families, and other witnesses. Id. at 4. The court found that the Internet messages at issue raised a "danger of encouraging burglary, kidnaping or other crimes" and that they "have no informative social value and are designed solely to inflict emotional distress." Id. at 3. Instead of proceeding to trial, however, the case was remanded to state court. The TRO presumably is now dissolved. The matters at issue in the declaration of Mr. Aurelio will not become relevant unless Mr. Delfino again intensifies his campaign of witness intimidation as the state court trial approaches. The declaration provides no basis for forcing Mr. Aurelio to submit to a second deposition.
Delfino also argues that he should be allowed to re-depose Mr. Aurelio because Plaintiffs amended their complaint after his last deposition. Again, however, Delfino does not identify a single new factual issue on which he wants Mr. Aurelio to testify, much less an issue on which it can be shown that Mr. Aurelio has superior knowledge to lower-level employees.
Plaintiffs' Third Amended Complaint does not contain any new causes of action. Delfino asserts that "the federal court dismissed his corporations unfair business claims against Delfino. In their amended complaint, Varian reasserts those claims, but now asserting California, and no federal, law applies." Delfino Opp. Brf. at 2:21-23. This statement is highly misleading. Plaintiffs' original complaint contained causes of action for unfair competition, violation of Cal. Bus. & Prof. Code ß 17200, false advertising under California law, and violation of the federal Lanham Act. See Complaint (2/26/99). The federal court dismissed the Lanham Act claim without ruling on any of the other claims. See Certified Copies of Court Orders (6/28/00), Ex. 36. Thus, the other claims remain. They were never dismissed and Plaintiffs did not "reassert" them. For the most part, the new allegations in the Third Amended Complaint relate to new Internet messages posted by Delfino and his co-defendant after the previous complaint was filed. Delfino does not explain why Mr. Aurelio should be expected to possess superior knowledge regarding any of the factual issues raised by the new allegations.
At one point in his opposition brief, Delfino contends that Mr. Aurelio "has been referred publically to [sic] as 'Tricky Dick"' by one of Varian's competitors. Delfino Opp. Brf 3. The brief later baldly accuses Mr. Aurelio, without support, of committing perjury and states "[t]his witness is truly tricky." These gratuitous statements are completely irrelevant to the issues before the Court and are examples of the childish name-calling and harassment that Mr. Aurelio can expect from Delfino and his counsel if a second deposition is allowed to take place. In light of (1) Delfino's complete failure to identify factual issues with respect to which Mr. Aurelio is in a unique position to provide relevant testimony and (2) the likelihood that the deposition has been noticed for the primary purpose of harassment and undue burden, the deposition notice should be quashed.
1. "Poppe Decl." refers to the Declaration of Matthew H. Poppe submitted in support of this motion on January 4, 2001.
2. The messages themselves were posted after the date of Mr. Aurelio's deposition.
3. "Poppe Reply Decl." refers to the Reply Declaration of Matthew H. Poppe submitted concurrently herewith in support of this motion.
4. Four other witnesses also submitted declarations: plaintiffs Felch and Zdasluk, as well as two non-party witnesses. Poppe Reply Decl. ? 4. It should be noted that Mr. Aurelio filed his declaration under seal pursuant to the protective order entered by the federal court. See Delfino Opp. Brf., Ex. B, p. 1. By re-filing the declaration in this court where it is publicly accessible, Delfino and his counsel are in contempt of the federal protective order. See Poppe Decl., Ex. C.
B. Delfino Has Not Established a Basis for Deposing Mr. O'Rourke, the Soon-to-Be Retired Chairman of Varian Semiconductor's Board of Directors.
Like Mr. Aurelio, Mr. O'Rourke is an extremely high-level employee of Varian Semiconductor who has no personal knowledge related to this case. See O'Rourke Decl. ?? 1-2.5 Mr. O'Rourke cannot be deposed unless Delfino shows "good cause that [he] has unique or superior knowledge of discoverable information," Liberty Mutual, 10 Cal. App. 4th at 1289. Delfino has not shown good cause.
Delfino speculates that this lawsuit could not have been filed without Mr. O'Rourke's permission and states that he wants to know Mr. O'Rourke's motives for filing the lawsuit. See Delfino Opp. Brf at 4. Delfino provides no evidentiary support for his speculation. Moreover, the testimony he seeks would be irrelevant to the issues raised by the complaint. Delfino also wants to depose Mr. O'Rourke based on the speculation that he authorized "the videotaping of the bathroom at Varian's Ginzton Laboratory." Delfino Opp. Brf. at 6:6-8. Again, there is no support for the allegation that Mr. O'Rourke had anything to do with the videotaping alleged by Delfino and Delfino does not explain why the testimony provided by other deponents is insufficient.6 Delfino also fails to note that his "class action" based on the videotaping has been dismissed, albeit with leave to amend. See Reply Poppe Decl., Ex. D.
Delfino also argues that he wants to depose Mr. O'Rourke to find out why Varian, Inc., one of the three spin-offs of original plaintiff Varian Associates, Inc., is not a party to this lawsuit. However, the answer to that question is irrelevant and Delfino has made no attempt to discover the answer through less-intrusive means. Moreover, the answer to the question is obvious from the face of the complaint. The two individual plaintiffs, Felch and Zdasiuk, are respectively the employees of Varian Semiconductor and Varian Medical. Delfino has spared Varian, Inc. employees from abuse. Similarly, Delfino's corporate attacks have been directed overwhelmingly at Varian Semiconductor and Varian Medical, not Varian, Inc.
Regarding Mr. O'Rourke's residence, Plaintiffs stated in their opening brief that he owns a house in California. However, as explained in Mr. O'Rourke's declaration, he is retiring shortly and now lives in Arizona, with no plans to come to California for at least several months. See O'Rourke Decl. ?? 3-4. It would be unfair and contrary to applicable law to require that he travel to California for a useless deposition regarding issues as to which he possesses no personal knowledge.
For these reasons, the deposition notice should be quashed as to Mr. O'Rourke.
5. "O'Rourke Decl." refers to the Declaration of J. Tracy O'Rourke submitted in support of this motion on January 4, 2001.
6. Plaintiffs admit that videotaping occurred, but deny that a bathroom was videotaped.
C. Delfino May Not Depose Dr. Zdasiuk for a Third Time.
Delfino bases his claim to a third Zdasiuk deposition on the fact that Plaintiffs amended their complaint after Dr. Zdasiuk's last deposition. Delfino complains about Plaintiffs' "new claims and charges," but he does not explain why any new allegations require additional testimony from Dr. Zdasiuk. As explained above, the Third Amended Complaint does not contain any new causes of action. Although Plaintiffs added allegations regarding new Internet messages posted by Delfino and his co-defendant, many of those messages were posted prior to Dr. Zdasiuk's last deposition. Compare Poppe Decl., Ex. C (showing Dr. Zdasiuk last deposed on November 11, 1999), with Third Amended and Supplemental Complaint ? 43) (stating dates of new Internet messages). Furthermore, all of the new messages relate to issues regarding which Delfino had knowledge prior to Dr. Zdasiuk's last deposition. The burden is on Delfino to show a new factual issue that justifies additional testimony from Dr. Zdasiuk. He has not done so. Thus, the deposition notice should be quashed as to Dr. Zdasiuk,
III. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request an order quashing the deposition notice as to Messrs. O'Rourke, Aurelio, and Zdasiuk and/or the entry of a protective order providing that Delfino is not permitted to take the depositions. Plaintiffs also request monetary sanctions against Delfino and/or his counsel. Messrs. O'Rourke and Aurelio join in this motion.
Dated: January 26, 2001
Matthew H. Poppe
Attorneys for Plaintiffs
VARIAN ..."
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