[VAR & VSEA] NOTICE OF MOTION FOR DISCOVERY PENDING APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; [PROPOSED] ORDER
"Please take notice that, pursuant to Code of Civil Procedure section 2036, defendants Michelangelo Delfino and Mary E. Day move for limited discovery from plaintiffs Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan Felch and George Zdasiuk, and non-party “Jazzun,” a former anonymous poster on the Yahoo! Varian message board who is represented by the Orrick firm. This limited discovery is urgently needed in order to determine the identity of individual(s) who have recently made threats of death or great bodily injury against defendants and their counsel in an effort to intimidate them in their prosecution of their appeal in this case and to determine whether the Orrick firm is required to withdraw from its representation of plaintiffs due to the possible link of the death threats to plaintiffs.
This motion is supported by the attached points and authorities, the declaration of Jon B. Eisenberg and attached exhibits, the record in this case, and any argument that may occur.
MEMORANDUM OF POINTS AND AUTHORITIES
During the pendency of this case, there have been numerous posts on various Internet message boards by defendants and by other unknown individuals, some who have posted angry diatribes against defendants and support for plaintiffs, and others who have posted angry diatribes against plaintiffs and support for defendants. However, the tenor of some of these posts has ominously changed since defendants petitioned for a writ of supersedeas. Some of the postings have crossed the line into criminal death threats directed at Delfino, Day, and their lawyers. These threats have led to an ongoing FBI investigation. This motion requests permission from this court to allow defendants to seek limited discovery from plaintiffs and from one such anonymous poster in an effort to learn who is behind these threats.
1. The threats of death or great bodily injury.
Since April 2002, dozens of posts on the Yahoo! Varian message board and numerous e-mails directed at Delfino or his counsel have made threats of death or great bodily injury against defendants, their counsel, and other unidentified associates of defendants. (See Declaration of Jon B. Eisenberg ¶ 2 (Eisenberg Decl.); and Exh. A.) These posts and e-mails have been made under the pseudonyms “crack_smoking_jesus,” “fifthhorseman_2002,” “here_comes_the_scythe,” “mdx2_may_be_insane,” “joel_packer,” “why_not_kick_em_when_theyre_down,” “x yz,” “comic writer,” “md2x_are_hell,” and “dr_dweezil2001.” (Eisenberg Decl. ¶ 2; Exh. A.)
For example:
• A July 30 e-mail to Delfino from “x yz” stated in part: “It’s coming, motherfucker, and you won’t see it . . . you’re going to get your ass stomped by me and some friends. . . . You can look forward to all of your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head. . . . Maybe set your place on fire . . . . If your cunt is there, she’ll take a little ride to the parts of San Jose where they don’t speak english, and she can walk home from there-naked. . . . your lawyer won’t be around to save you from this.” (Exh. A at 32.)
• An April 23 e-mail from “comic writer,”said “you have now officially qualified for a visit from someone.” (Exh. A. 10.)
• On April 22, 2002, “crack_smoking_jesus” posted on the Yahoo! Varian message board that “Mikey is going to DIE real soon.” (Exh. A at 9.)
• On May 7, “crack_smoking_jesus” posted that “I heard Mikey will have a hard time appealing his case after he’s DEAD. Count the days, loser ... you’re going to suffer and someone will laugh.” (Exh. A at 15.)
• On July 18, “crack_smoking_jesus” posted “I arranged for you to have a visitor. . . Don’t say I didn’t warn you.” (Exh. A at 31.)
• On June 4, “fifthhorseman_2002” posted that “Sledge’s [Delfino] associates had best watch out - collateral damage can be a bitch. Any I believe some’s headed their way.” (Exh. A at 18.)
• On August 12, two threats were posted by “fifthhorseman_2002.” One of them, evidently directed to one of Delfino’s acquaintances, states: “Looks as if you might collect a little ‘time out’ of your own, Van-boy. That’s the trouble with associating with slime like MDx2. That shit gets on ya. Can you say ‘collateral damage’? Sure you can. Heh heh heh.” (Exh. A at 36.) The other states in part: “the best – or worst, if you happen to be a defaming buttplug named Mikey Delfino – is yet to come. From the looks of things, jail’s the least of his worries. Gonna be fun to watch.” (Exh. A at 35.)
These threats constitute criminal acts in violation of both state and federal law. (See Penal Code § 422 [cyberstalking]; 18 U.S.C. § 875(c) [threats made in interstate commerce]).
2. Jazzun’s connection to the death threats.
Earlier in this litigation, an anonymous person posting under the pseudonym “jazzun” made numerous posts on the Yahoo! Varian message board that included harsh criticisms of defendants. (Exh. B.) Defendants served a subpoena on Yahoo! for records relating to “jazzun’s” identity. “Jazzun” filed a motion to quash, through his counsel Lynn Hermle and Matthew Poppe of the Orrick firm. (Exh. C.) The motion to quash was granted, but “jazzun’s” postings significantly dropped off and have since ceased completely. An analysis of “jazzun’s” posts reveals striking similarities in language and themes to posts by “crack_smoking_jesus,” “fifthhorseman_2002,” “x yz,” “comic_writer,” and “dr_dweezil2001.” For example, “jazzun” and “crack_smoking_jesus” each refer to Delfino as a “moron,” “loser,” “whacko [sic],” and “Mikey.” (Cf. Exh. A at 9, 11, 15, 20, 22, 26, 27, 36C, and Exh. B at 38, 41, 43, 49, 50, 52.) “Jazzun” refers to Delfino as “Delf**khead,” “comic writer” refers to Delfino as “fuckhead,” and “fifthhorseman_2002” refers to Delfino as “Delfucko.” (Cf. Exh. A at 10, 36A, 36L and Exh. B at 47.) “Jazzun” makes reference to defendants’ “breaking the law” and “crack_smoking_jesus” makes reference to defendants’ “breaking law.” (Cf. Exh. A at 36B and Exh. B at 41.) “Jazzun” and “fifth_horseman2002” both refer to Delfino as a “loser,” “delusional,” and “Mikey.” (Cf. Exh. A at 13, 36E, 36F, 36M, 36N, and Exh. B at 41, 49, 50.) “Jazzun” and “fifth_horseman2002” both refer to the use of Yahoo!’s “ignore” button. (Cf. Exh. A at 36K and Exh. B at 52.) “Jazzun” has said “Go Varian!” and “fifth_horseman2002” has said “Go, Varian, Go!” (Cf. Exh. A at 36G and Exh. B at 43.) In addition to similarities in word choice and misspelling, “Jazzun,” “crack_smoking_jesus,” “fifth_horseman2002,” and the other aliases all posted similar themes – attacking defendants and praising Varian. (Cf. Exh. A and Exh. B.)
The above comparison indicates a very strong possibility that “jazzun” is one of the individuals who has been making the threats to defendants and their counsel. In fact, Ms. Hermle used this same type of comparison of words, misspellings, and similar themes in her closing argument at trial in her effort to link defendants to posts that they had denied. (See RT 8128-8138.)
3. Varian’s links to the death threats.
“Jazzun’s” posts suggest that he or she is a Varian employee or affiliated with Varian in some way. For example, “jazzun” referred to Varian by stating “we’re on track for record profits again” and “[o]ur profit sharing check should be a doozy.” (Exh. B at 43.) This use of language indicates that “jazzun” is at least holding himself or herself out to be a Varian insider. Moreover, in a reply declaration submitted in support of his or her motion to quash, “jazzun” very carefully declared that “I have never worked for or been an employee of Varian Semiconductor. I am not currently an employee of any Varian entity.” (Exh. C at 68.) By implication, “jazzun” is conceding that at one time he or she was employed by a Varian entity. At least one of the persons making the threats professes to have a connection to the Orrick firm. In one post, “crack_smoking_jesus” writes “Hey Orrick! If it would help put Sledge [Delfino] in jail, I’ll testify that I believe everything he posts. Or that I believe nothing he posts. I’ll swear to about anything if it locks him away. You know where to reach me ...” (Exh. A at 19.) In another post, “crack_smoking_jesus” invites the Orrick firm to contact him or her at a specified e-mail address. (Exh. A at 14.) Moreover, the threats themselves also facially demonstrate a connection to Varian and its counsel. The posts indicate an obsessive hatred of defendants and their counsel that would likely come only from someone personally invested in the dispute. (See Exh. A.)
Likewise, non-threatening posts under the same aliases profess support for plaintiffs. For example, “crack_smoking_jesus” posted “I wrote a letter to the PCYC Bd of Dir telling them what a stellar job Mr Levy [Varian CEO] is doing. I recommend that he be appointed for life! . . . NOBODY GIVES A CRAP ABOUT YOUR [Delfino’s and Day’s] MISERABLE PUNY, SHITTY, PITIFUL LIVES. Are you people catholic priests by chance?” (Exh. A at 27.)
4. This court should exercise its discretion to allow limited discovery to determine the identity of the individual(s) making the death threats.
This court has discretion to allow discovery during the pendency of defendants’ appeal. (See Code Civ. Proc., § 2036.) This discretion is not affected by the Court of Appeal’s writ of supersedeas, as that only bars discovery or any other acts to enforce the judgment. The limited discovery requested here is collateral to the judgment and is not part of any enforcement activity.
Defendants request that this court allow limited written depositions of Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan Felch, and George Zdasiuk so that defendants can ascertain whether plaintiffs (1) know the identities of the individual(s) who have made threats via posting on the Yahoo! message board and via e-mail; (2) whether the individual(s) are or were employees of any Varian entity, or friends or relatives of such employees; and (3) whether the individual(s) have been acting on behalf of any Varian entity. Defendants also request that this court allow a limited written deposition of “jazzun” so that defendants can ascertain (1) whether “jazzun” has made some or all of the death threats; (2) whether “jazzun” is or was an employee of any Varian entity, or is or was a friend or relative of such employees, or is or was affiliated with any Varian entity; and (3) “jazzun’s” true identity if he or she is responsible for any of the threats.
Varian Medical Systems, Inc. Varian Semiconductor Equipment Associates, Inc., Susan Felch, George Zdasiuk, and “jazzun” can all be served with this discovery through their attorneys at the Orrick firm.
Defendants’ counsel have made repeated attempts to seek the voluntary cooperation of plaintiffs’ counsel in providing this information. (Eisenberg Decl. ¶¶ 11-15.) Plaintiffs’ counsel have refused, contending they have no obligation to do anything about these death threats. (Ibid.) In fact, plaintiffs’ counsel recently sent a letter instructing defendants’ counsel to “stop contacting us on this issue” and informing defendants’ counsel that “[w]e have no interest in discussing this matter with you further.” (Exh. D at 70.)
1. This information is essential to determine the identity of the individual(s) responsible for the death threats so that defendants and their counsel can take appropriate safety precautions.
The information sought by the proposed written depositions may lead to the discovery of the identity of the individual(s) who have been making threats of death or great bodily injury against defendants and their counsel. It is extremely urgent that defendants and their counsel obtain this information so that appropriate safety precautions can be taken. Absent relief from this court to allow this discovery, defendants and their counsel might suffer physical harm or death in the interim. That would surely be “a failure or delay of justice.” (Code Civ. Proc., § 2036(e).)
2. The information is relevant to a determination of whether the Orrick firm must withdraw from its representation of plaintiffs.
A lawyer representing a corporation has an ethical obligation to attempt to intervene to prevent “an actual or apparent agent of the organization [from] act[ing] . . . in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization.” (Rules Prof. Conduct, rule 3-600(B).) If the client refuses to alter course despite warnings from counsel, counsel may have a duty to resign from representation. (Rules Prof. Conduct, rule 3-600(C); see also Rules Prof. Conduct, rule 3-700; Comden v. Superior Court (1978) 20 Cal.3d 906, 915 [“‘The preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar is paramount. . . . (The client’s recognizably important right to counsel of his choice) must yield, however, to considerations of ethics which run to the very integrity of the judicial process’”].)
Here, there is a reasonable basis to conclude from the available evidence that an individual making death threats is a Varian employee, affiliated in some way with Varian, or acting on behalf of Varian, and that these facts are or should be known to the Orrick firm. If this is true, then Orrick has a duty to resign from its representation of Varian. (See, e.g. Metzger v. Silverman (1976) 62 Cal.App.3d Supp. 30, 39 [lawyer must resign if client insists on course of action “solely taken for the purpose of harassing or maliciously injuring the other party”].) At a minimum, there is sufficient evidence to trigger an ethical obligation of Orrick to investigate the possibility that agents of its client are making these threats.
There is plainly sufficient evidence to warrant the discovery requested by defendants, in order to determine the truth and the ethical obligations of counsel.
3. The Orrick firm has a Tarasoff duty to use reasonable care to protect Delfino, Day and their attorneys against danger from a client of the firm.
The Tarasoff duty of a therapist is well known: When the therapist determines or should determine that a patient “presents a serious danger of violence to another,” the therapist “incurs an obligation to use reasonable care to protect the intended victim against such danger.” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 431.) This duty is predicated on Evidence Code section 1024, which prescribes an exception to the psychotherapist-patient privilege when the psychotherapist has reason to believe the patient may be dangerous.
Since 1994, Evidence Code section 956.5 has prescribed a similar exception to the attorney-client privilege: There is no privilege “if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.” This exception to the attorney-client privilege expands the scope of the Tarasoff duty to include the attorney-client relationship. (See Kerrane, Will Tarasoff Liability Be Extended To Attorneys In Light Of New California Evidence Code Section 956.5? (1995) 35 Santa Clara L.Rev. 825.)
Thus, the Orrick firm has a duty to use reasonable care to protect Delfino, Day, and their attorneys against danger from a client of the firm. As set forth in the attached Declaration of Jon B. Eisenberg, the Orrick firm has refused to acknowledge or perform that duty. The discovery sought by this motion will assist the Orrick firm in determining and performing its Tarasoff obligations.
5. Ongoing federal criminal investigation.
The United States Attorney’s office has acquiesced in this discovery request. The threats described in this motion have been reported to the FBI, which is presently conducting an ongoing investigation. A federal grand jury subpoena has issued to Yahoo!, and the FBI has so far identified at least two perpetrators. However, the FBI and United States Attorney’s office are presently precluded by rules of grand jury secrecy (Fed. Rules Crim. Proc., rule 6) from revealing the identities of the perpetrators to defendants or their counsel. The government attorney in charge of the federal investigation has indicated that the United States Attorney’s office does not take any position for or against the discovery sought herein. (Eisenberg Decl. ¶¶ 4-10.)
6. Conclusion.
This exasperating case has now entered the criminal realm, and the victims are not just the defendants but also their attorneys. This is not a time for further jousting by opposing counsel, but for cooperation among members of the bar in a concerted effort to identify criminals and prevent threatened acts of violence from occurring. It is no exaggeration to say that lives could be at stake.
For the above reasons, we respectfully request that this court grant defendants’ motion allowing them to seek the limited discovery set forth in the moving papers.
Dated: August 22, 2002
HORVITZ & LEVY LLP
JON B. EISENBERG
JEREMY B. ROSEN
LAW OFFICES OF RANDALL M. WIDMANN
RANDALL M. WIDMANN
GLYNN P. FALCON
Attorneys for Defendant MARY E. DAY
Attorneys for Defendant MICHELANGELO DELFINO"
[PROPOSED] ORDER
"Based on consideration of the moving papers, evidence, and the record, defendants’ motion for limited discovery on appeal is GRANTED. Accordingly, defendants may take written depositions of Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan Felch and George Zdasiuk, and non-party “Jazzun” in order to ascertain the identity of the individual(s) who have been making threats of death or great bodily injury against defendants and their counsel.
Dated: ____________________________________
Hon. Jack Komar"
DECLARATION OF JON B. EISENBERG
"I, Jon B. Eisenberg declare:
1. I am an attorney licensed to practice law in California and a partner in the firm of Horvitz & Levy LLP, counsel for the defendants and appellants in Varian Medical Systems, Inc., etc. v. Michelangelo Delfino and Mary E. Day, Case No. CV 780187. The following facts are personally known to me. If called upon to do so, I could and would testify competently to these facts under oath.
2. From April 12, 2000, through August 12, 2002, unidentified persons using the pseudonyms “crack_smoking_jesus,” “fifthhorseman_2002,” “here_comes_the_scythe,” “mdx2_may_be_insane,” “joel_packer,” “why_not_kick_em_when_theyre_down,” “x yz,” “comic writer,” “md2x_are_hell,” and “dr_dweezil2001” have made dozens of threats of death or great bodily injury to my clients Michelangelo Delfino and Mary E. Day, to Jeremy Rosen (an associate with Horvitz & Levy LLP), and to other unnamed “associates” of Delfino and Day, by email sent directly to Delfino and by postings on a message board maintained by Yahoo! Inc. for the Varian entities. Copies of some of these threats are attached hereto as Exhibit A.
3. I believe these threats constitute criminal violations of Penal Code section 422 (cyberstalking) and 18 U.S.C. section 875(c) (threats made in interstate commerce).
4. On April 24, 2002, I reported the first of these threats to the Federal Bureau of Investigation (FBI) in San Jose. Since then, the FBI has been conducting an ongoing investigation to identify the perpetrator or perpetrators. The agent in charge of the FBI investigation is Sean Wells.
5. Agent Wells subsequently informed me that a federal grand jury subpoena had issued to Yahoo! Inc. to obtain information regarding the threatening email and postings.
6. On August 5, 2002, Agent Wells informed me that he had determined the identity of the person who has made threats under the pseudonyms “crack_smoking_jesus” and “dr_dweezil2001.”
7. On August 8, 2002, the United States Attorney in charge of the investigation, Jeff Nedrow, informed me that the investigation is “ongoing” but he is precluded by rules of grand jury secrecy (Federal Rules of Criminal Procedure, rule 6) from revealing “any other details about the investigation.”
8. On August 20, 2002, Agent Wells informed me that he had determined the identity of the person who has made threats under the pseudonym “fifthhorseman_2002,” and that this was not the same person as the one has made threats under the pseudonyms “crack_smoking_jesus” and “dr_dweezil2001.”
9. Later on August 20, 2002, Mr. Nedrow informed me that he would be consulting with Agent Wells concerning the threats of August 12, 2002, by “fifthhorseman_2002,” and that the investigation remains ongoing.
10. On August 21, 2002, I left voice mail with Mr. Nedrow asking him to let me know whether the United States Attorney’s office wishes to take any position on the discovery sought herein, and stating that if he did not respond to me by the close of business that day I would assume that the United States Attorney’s office does not take any position for or against the discovery sought herein. Mr. Nedrow did not respond.
11. On July 23, 2002, I telephoned Matthew Poppe of Orrick, Herrington & Sutcliffe LLP, counsel for plaintiffs and respondents herein, described the threatening postings and email in considerable detail, and asked him to investigate to determine whether the threats are coming from one of his clients in this action or someone connected with them. Mr. Poppe asked me to fax him some of the threats and said he would make a “general inquiry.” I faxed him some of the threats that same day.
12. On July 31, 2002, I faxed Mr. Poppe a copy of a new message-board threat and a citation to a law review article discussing the Tarasoff duty of attorneys to warn of threats by their clients. (See Kerrane, Will Tarasoff Liability Be Extended To Attorneys In Light Of New California Evidence Code section 956.5? (1995) 35 Santa Clara Law Review 825.) When I spoke to Mr. Poppe later that day, he told me he “doesn’t know” and “can’t say” who is making the threats and would not investigate further.
13. On August 5, 2002, I sent Mr. Poppe a copy of a message-board posting by “crack_smoking_jesus” addressed to the Orrick firm which offered to testify against Delfino and said “You know where to reach me.” Later that day, I asked Mr. Poppe by email whether the Orrick firm had tried to reach “crack_smoking_jesus” since I had alerted him to the threats. Mr. Poppe responded, by email, “No.”
14. On August 16, 2002, I telephoned Mr. Poppe and discussed with him, and subsequently provided him with an email discussion of, close similarities between postings by his client “jazzun” and postings by “crack_smoking_jesus.” Copies of the “jazzun” postings are attached hereto as Exhibit B, and a copy of “jazzun’s” motion to quash a subpoena issued earlier in this litigation, filed by the Orrick firm as counsel for “jazzun,” is attached hereto as Exhibit C. I asked for Mr. Poppe’s cooperation in taking all reasonable steps to ensure that no physical harm comes to Delfino, Day, Rosen or me from a person who is likely a client of the Orrick firm, and specifically to investigate and reveal the identity of the perpetrator or perpetrators if determined by him. Mr. Poppe said he would not do so.
15. On August 18, 2002, I emailed Mr. Poppe a discussion of close similarities between postings by “jazzun” and postings by “fifthhorseman_2002,” and requested that he investigate to determine whether “jazzun” and “fifthhorseman_2002” are the same person and an Orrick client and, if he determines that is so, to reveal that person’s identity to me so that Delfino, Day, Rosen and I may take steps to ensure our security. Mr. Poppe responded with the letter attached as Exhibit D.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 22, 2002, at Oakland, California.
signed Jon B. Eisenberg"
geocities.com |
