[VAR & VSEA] REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR DISCOVERY PENDING APPEAL
"The opposition to defendants’ motion for discovery on appeal is notable for both the issues it ignores and the factual assertions it makes without any supporting declaration. The following points in defendants’ moving papers are conceded either by omission or by lack of evidentiary support:
• Individual(s) have made numerous death threats to Delfino, Day and their counsel in violation of state and federal criminal law;
• Varian has information regarding the individual(s) making those death threats;
• “Jazzun” is a former Varian employee; and
• Orrick has an ethical duty under rule 3-600(B) to investigate the threats.
The discovery sought here is deliberately limited: a few simple questions designed to determine whether any of the plaintiffs or “jazzun” has any information regarding who is making the threats. In the amount of time that it took to respond to this motion, plaintiffs, “jazzun” and Orrick could have simply provided defendants and their counsel with whatever information they possess. The only way this discovery could possibly be a “burden” (see Plaintiffs’ Opposition to Motion for Discovery Pending Appeal (“Oppo.”), p. 4) is if Varian or “jazzun” has something to hide.
The most disturbing aspect of plaintiffs’ and “jazzun’s” opposition is their counsel Orrick’s evident lack of concern about the death threats and the refusal to assist in unmasking the perpetrators. Orrick says Delfino and Day have “many enemies,” and it is only “natural” for people to express “support [for] Plaintiffs and their counsel” in their Internet messages (Oppo., pp. 5-6) while at the same time threatening Delfino, Day and their counsel with death, mayhem, arson, rape and kidnaping. The sub-text is that Delfino and Day have “asked for it.” But their counsel, who have also been targeted, most assuredly have not “asked for it.” They are at risk too.
Any Bay Area attorney who is neither alarmed by these threats nor willing to help unmask the perpetrators has not learned the lessons of the 101 California Street tragedy.
A. The requested discovery is intended for use on retrial as the basis for filing amended pleadings.
Plaintiffs’ main argument against the requested discovery is that it is not “for the purpose of perpetuating testimony or preserving information for use in the event of further proceedings in that court.” (Code Civ. Proc., § 2036, subd. (a); see Oppo., pp. 1-4.) Indeed it is.
By granting supersedeas, the Court of Appeal has determined that defendants’ appeal has merit. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 298, p. 338.) Thus, there is a very real possibility that the Court of Appeal will reverse this court’s judgment and remand the cause for further proceedings. If that happens – and if the requested discovery reveals that a perpetrator of the death threats is a Varian employee, affiliated in some way with Varian, or acting on behalf of Varian – then defendants will use the discovered information on remand as the basis for (1) amending the cross-complaint to add allegations of intentional infliction of emotional distress, and (2) amending the answer to assert an “unclean hands” affirmative defense to the complaint. (See id., § 761, p. 789 [right to amend pleadings after reversal for retrial].) And, of course, if the requested information can be the basis for amending the pleadings, it is “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017, subd. (a).) Accordingly, the requested discovery is needed for potential future proceedings before this court.
Plaintiffs also rely on Code of Civil Procedure section 2035 – the statute governing discovery before filing any action – for the proposition that it is improper to use such discovery for the purpose of identifying a potential party. (Oppo., p. 2.) Defendants’ purpose, however, is not to identify a potential party, but to determine whether, on remand, the pleadings should be amended as to known parties. Moreover, section 2035 includes an explicit provision prohibiting its use for “identifying those who might be made parties,” a provision that section 2036 – the statute governing discovery pending appeal – does not contain. (Cf. Code Civ. Proc.,§§ 2035, subd. (a) and 2036.) Section 2035 is no bar to the discovery requested here. And, if the requested information serves both to preserve evidence that may be necessary at any new trial and to identify a potential killer, section 2036 would not be violated. (See Hunt-Wesson Foods, Inc. v. County of Stanislaus (1969) 273 Cal.App.2d 92, 98 [“It is true that when evidence worthy of perpetuation is authorized by the applicable code section, and a deposition is, consequently, ordered, there may be inquiries which would incidentally constitute discovery. But if there is no opportunity to use perpetuated testimony in an actual legal action, the function and purpose of the statutory devise is thwarted and the use of the section for obtaining collateral information only should be denied” (italics added)].)
Plaintiffs claim there is no risk that information will be lost if discovery is delayed. Wrong again. The death threats have occurred mostly in Internet postings, which are commonly destroyed by deletion. In fact, hundreds of postings by “crack_smoking_jesus” have already been deleted from Yahoo!’s message boards. Defendants need the requested discovery to determine which postings among thousands that currently remain on the Internet need to be preserved, before they too are deleted. Moreover, there is no absolute requirement that defendants “show the existence of particular circumstances surrounding the condition of the evidence that present an imminent danger of the loss of the evidence.” (Petition of Alpha Industries, Inc. (S.D.N.Y. 1995) 159 F.R.D. 456, 457.)
The more serious threat, however, is that Delfino or Day or their attorneys will be “lost” – by being killed before the perpetrators are unmasked, which would surely be the sort of “failure . . . of justice” contemplated by section 2036. Thus, seeking out the identity of the individual(s) behind the threats in a real way does “perpetuate[] testimony or preserve[] information” (Code Civ. Proc., § 2036, subd. (a)) by ensuring that defendants are around to participate in any new trial.
Finally, this court has wide discretion in fashioning relief here. (See Martin v. Reynolds Metals Corporation (9th Cir. 1961) 297 F.2d 49, 57; Block v. Superior Court (1963) 219 Cal.App.2d 469, 478.)
B. Plaintiffs have failed to provide any support for their claims that they have no knowledge concerning the death threats.
Plaintiffs claim in their opposition that they “have no knowledge regarding the alleged threats.” (Oppo., pp. 4-5.) They have failed, however, to supply any declarations supporting this claim. They provide only their counsel Mr. Poppe’s declaration, which contains no evidence about what plaintiffs know. Orrick claims it “has assured the defendants’ counsel that Plaintiffs have no information about the person(s) responsible for the alleged threats.” (Oppo., p. 5.) But Orrick has provided no evidence, by declaration or otherwise, to indicate what steps, if any, Orrick took to ascertain this fact, nor does Orrick indicate that the plaintiffs concur in this sentiment. Plaintiffs themselves remain silent.
In a telephone conversation on July 23, 2002, defendants’ appellate counsel, Mr. Eisenberg, informed Mr. Poppe of the threats and requested assistance in identifying the perpetrators. (Second Supplemental Declaration of Jon B. Eisenberg (“2d. Supp. Eisenberg Decl.”) 2.) Mr. Poppe responded that (1) he would only approach his clients “‘indirectly’” by saying to them “‘if you know anything, let me know’” and (2) he had previously asked Felch and Zdasiuk whether they had ever posted on the Internet, which they said they had not. (2d. Supp. Eisenberg Decl. 2-3.) Mr. Poppe telephoned Mr. Eisenberg on July 31, 2002, and said only that he “‘do[es]n’t know’” and “‘can’t say’” who is making the threats. (2d. Supp. Eisenberg Decl. 6.) Mr. Poppe’s subsequent letter to Mr. Eisenberg dated August 22, 2002, states only that “we” – evidently meaning the Orrick attorneys – “have no information regarding the identity of crack_smoking_jesus or fifthhorseman_2002.” (Declaration of Jon B. Eisenberg (“Eisenberg Decl.”), exh. D, p. 70.)
Thus, the logical inference is that Orrick has never asked any of the plaintiffs whether they know who has been making the death threats. If Orrick has no knowledge, it is because Orrick has refused to pursue knowledge. And, neither the plaintiffs nor their counsel have ever plainly said that plaintiffs have no knowledge concerning the death threats.
C. There is sufficient evidence to indicate that an individual making the threats is affiliated in some way with Varian.
In the Poppe-Eisenberg telephone conversation of July 23, 2002, Mr. Poppe said that (1) he had been following postings by “crack_smoking_jesus” for a year, (2) another pseudonymous poster called “harvey wireman” had once telephoned Mr. Poppe and claimed to know the true identity of “crack_smoking_jesus,” and (3) Mr. Poppe’s “theory” was that “crack_smoking_jesus” is a former Varian employee. (2d. Supp. Eisenberg Decl. 4.)
Perhaps Mr. Poppe has a specific former Varian employee in mind. Perhaps that former Varian employee is “jazzun” – whose reply declaration in opposition to the prior motion to quash implicitly concedes that at one time he or she was employed by a Varian entity. (See Memorandum of Points & Authorities in Support of Defendants’ Motion for Discovery Pending Appeal (“Motion”), p. 6.) This implicit concession is not repudiated by Orrick or its clients.
The inference that “jazzun” is one of the perpetrators of the death threats is entirely reasonable, given the striking similarities – in theme as well as word choice and misspellings (see Motion, p. 5) – between postings by “jazzun” and those by the perpetrators. Plaintiffs speculate that, despite these similarities, it is “unlikely that jazzun has recommenced posting antagonistic messages about Delfino and Day.” (Oppo., p. 7.) That, however, is just subjective speculation – or perhaps wishful thinking. If, as plaintiffs argue, it can reasonably be inferred that the threats are coming from a former spouse or former co-worker of Delfino and Day, it can just as reasonably be inferred that the threats are coming from an Internet-poster called “jazzun” who speaks in the same language as the death-threatening “crack_smoking_jesus.”
Mr. Poppe claims that, even though “‘crack_smoking_jesus’” has said that Orrick knows “where to reach me,” Orrick “does not know and has never known how to contact the person(s) who posted under the alias ‘crack_smoking_jesus.’” (Poppe Decl. 3.) But when Mr. Eisenberg asked Mr. Poppe by email on August 5, 2002, “‘s it true that “[y]ou know where to reach” him?’”, Mr. Poppe responded: “‘I assume he means we could contact him through the Yahoo board. Or perhaps he is associated with that other web site that discusses the Varian/Delfino case, which I believe has a contact email address posted.’” (2d. Supp. Eisenberg Decl. 7.) Mr. Eisenberg replied: “‘Have you ever tried to contact him through the Yahoo board or through his website? Have you considered trying to do so since I alerted you to the death threats?’” (Ibid.) Mr. Poppe ended the exchange with a single word: “‘No.’” (Ibid.)
It is not that Mr. Poppe had no idea how to contact “crack_smoking_jesus.” It is that Mr. Poppe did not want to try.
Finally, in order to obtain this discovery, defendants do not need to prove that the individual(s) who are making death threats are current or former Varian employees or agents of Varian. Defendants have made a credible showing that it is possible, if not likely, that this is true. Thus, the limited and narrowly-crafted discovery request is “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017, subd. (a).)
D. Orrick has a duty to investigate the threats.
Orrick has changed its tune from saying in its letter of August 22, 2002, “t is not clear that the [Tarasoff] holding applies to attorneys,” to saying the law is really clear after all and that Tarasoff “applies to psychotherapists, not lawyers.” (Cf. Eisenberg Decl., exh. D, p. 70 and Oppo., p. 7.) It may be that the law is unclear – although the author of the law review article cited by defendants (and ignored by plaintiffs’ opposition) thinks not. (See Motion, p. 10.) It may even be that Tarasoff imposes only a duty to warn, not a duty to investigate – although the California Supreme Court’s prescription of “an obligation to use reasonable care to protect the intended victim” is broad enough to include a duty to investigate. (See Tarasoff v. Regents of University of California 1976) 17 Cal.3d 425, 431.)
What is truly surprising is that Orrick is willing to risk becoming a test case for probing the limits of Tarasoff.
In any event, regardless of whether Tarasoff and Evidence Code section 956.5 create a duty to investigate, rule 3-600(B) of the Rules of Professional Conduct plainly requires Orrick to investigate the possibility that agents of its corporate clients are making the death threats. (Motion, pp. 8-9.) Orrick’s opposition does not claim otherwise or even mention rule 3-600(B) and the investigative duty it imposes.
E. “Jazzun” should not be permitted to abuse the legal system by trying to remain anonymous and avoid service.
This motion implicates the same issues under which “jazzun” has already retained Orrick: issues relating to the posts and identity of “jazzun.” Accordingly, Orrick is presumptively still his/her counsel of record.
“Jazzun” made a calculated choice to remain anonymous when he/she retained Orrick to move to quash the subpoena issued to Yahoo! for information relating to his/her identity. Now, Orrick, on behalf of “jazzun,” wants to make it impossible to serve him/her with this motion by disclaiming the authority to accept service on his/her behalf. But “jazzun” entered a Faustian bargain with Orrick: “represent me anonymously in Varian v. Delfino to secure a positive result for me.” The downside of that bargain is an implicit agreement to allow service on “jazzun” to be made to Orrick. Any other result would be a travesty of justice, allowing individuals to make selective use of the courts when it suits them yet deprive their opponents from reaching them on urgent related matters.
Moreover, there is no support for Orrick’s assertion that “jazzun” has no “present attorney-client relationship” with Orrick. (Oppo., p. 8.) Orrick provides no supporting declaration or other evidence. There has been no notice by “jazzun” that he/she has retained a new law firm. Should “jazzun” have changed counsel, defendants would be happy to re-serve this motion on “jazzun’s” present counsel.
Finally, the proposed written deposition questions are designed to protect “jazzun’s” anonymity unless he/she has posted under any of the aliases used by individuals making criminal threats. (Motion, p. 7.) Thus, there is no prejudice to “jazzun” unless he/she is committing a state or federal crime.
F. Defendants have no recourse to law enforcement to obtain the requested information.
Plaintiffs assert that “[t]he defendants’ proper recourse to identify the perpetrator(s) of the alleged threats is to seek the assistance of law enforcement.” (Oppo., p. 1.) But that is not how “law enforcement” sees it. In a conversation between Jeff Nedrow, the United States Attorney in charge of the criminal investigation of the death threats, and Mr. Eisenberg, on September 9, 2002, Mr. Eisenberg read aloud for Mr. Nedrow this assertion in plaintiffs’ opposition, and Mr. Nedrow commented: “‘Law enforcement isn’t about providing information, it’s about investigating crimes and deciding whether to prosecute. You don’t go to law enforcement to get information.’” (2d. Supp. Eisenberg Decl. 8.) Accordingly, defendants’ only recourse to obtain this information is by judicial process.
G. Conclusion
For the above reasons, and for those set forth in defendants’ moving papers, defendants respectfully request that this court grant defendants’ motion for limited discovery on appeal.
Dated: September 11, 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"
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