Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Pastimes : Investment Chat Board Lawsuits -- Ignore unavailable to you. Want to Upgrade?

To: dantecristo who wrote (3690)	9/18/2002 1:02:52 PM
From: dantecristo	Read Replies (2) \| Respond to of 12465

Varian Foes Seek Web Discovery Judge Komar says he cannot approve a fishing expedition into the origin of posted death threats. By Craig Anderson Daily Journal Staff Writer "SAN JOSE - Two research scientists who are waging a pitched battle with their former employer over defamatory Internet message board writings have been trying for months to find out who is sending alleged death threats to them. So far, they haven’t been successful. In April, the attorney representing Michelangelo Delfino and Mary Day contacted the FBI, which reportedly has identified two people who have sent threats by email or posted them on a Yahoo! message board, But neither the FBI nor the U.S. attorney’s office will say who they are, and no criminal charges have been filed. Tuesday, Delfino and Day tried another tack, asking a Santa Clara County judge to grant their discovery motion forcing Varian Medical Systems and their lawyers to disclose the identity of a person they believe is making the threats. Their Oakland attorney, Jon Eisenberg, of Encino’s Horvitz & Levy, also wants written declarations from a number of plaintiffs to determine if they are responsible. But Santa Clara Superior Court Judge Jack Komar, while voicing sympathy for Eisenberg’s plight, refused to grant his motion. He cited a section of the Code of Civil Procedure that states that discovery pending appeal cannot be for the purposes of investigation. ”You are not attempting to perpetuate information,” Komar said, “You are attempting to learn information . It is, as [Varian] has said, a fishing expedition. I don’t blame you for fishing, but this is not the pond.” Eisenberg’s motion was made as part of the long-running civil lawsuit between Varian and Delfino and Day. A jury found the Los Altos pair liable for defamation last year and ordered them to pay $775,000 in damages. Varian Medical Systems v. Delfino, 780187, But the 6th District Court of Appeal, in a June order, stayed enforcement of that judgment as well as a permanent injunction by Komar barring the defendants from posting a long list of allegations. In his discovery request, Eisenberg also wanted Varian’s attorneys at Orrick Herrington & Sutcliffe to disclose the identity of an unidentified person who posted other messages two years ago under the pseudonym “jazzun.” The person was represented by Orrick during a successful effort to quash a subpoena by Delfino and Day in the civil lawsuit. Citing parallels in the language used by “jazzun” and two pseudonymous posters who recently have posted the alleged threats, Eisenberg said there is a strong possibility that Orrick’s client has committed criminal acts. Komar, however, was unconvinced by the evidence linking Orrick’s clients and the threats. “I would agree with you if you had a scintilla of evidence to support your theory,” he said. The judge suggested that Eisenberg file a John Doe lawsuit instead so he can compel discovery from Yahoo. Such complaints frequently are filed by corporations seeking to track down the identities of people who have posted offending messages. Eisenberg complained that a John Doe lawsuit would not enable his clients to determine the poster’s identity without help from the FBI. “That leaves me with no remedy,” he said. Komar did not agree. In fact, he said, companies, including Varian, have frequently been able to track down the identities of pseudonymous posters in the discovery process. "I'm appalled by the messages in this case," the judge said. "What's happening now is extreme and it's worse. I'm sorry that I can't assist you." Eisenberg said after the hearing that he will file a writ petition with the 6th District Court of Appeal challenging Komar's ruling. Lynne Hermle, an Orrick attorney who represents Varian, said her clients "had nothing to do with any threats. We've told Mr. Eisenberg that they didn't."" San Francisco Daily Journal (Page 2: SEP 18, 2002) geocities.com