Orrick attorneys linked to convicted Federal criminal!
"SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
MICHELANGELO DELFINO, MARY E. DAY,Plaintiffs,v.CAMERON ALDEN MOORE, an individual, AGILENT TECHNOLOGIES, INC. a Delaware Corporation, and DOES 1 through 50, inclusive,Defendants, Case No. 1-03-CV001573PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND REQUEST FOR SANCTIONS [C.C.P. §§ 2017, 2023, 2025] Date: August 20, 2004 Time: 9:00 a.m. Dept.: 18 Judge: Hon. Patricia LucasComplaint Filed: July 22, 2003
I. INTRODUCTION AND SUMMARY OF CASE
Michelangelo Delfino and Mary E. Day (“Plaintiffs”) seek compensatory and punitive damages from convicted Federal criminal Cameron A. Moore (“Moore”), his former employer Agilent Technologies, Inc. (“Agilent”) and Does 1-50 for the willful and negligent harm inflicted on them through the use of threatening and harassing e-mail and web postings. Does 1-50, or some of them, knew that Moore was making threats; knew Moore was unstable and might carry out the threats; and knew or should have known that either the threats themselves were criminal or were likely to lead to criminal behavior involving imminent physical danger or death to Plaintiffs; because of their animus toward Plaintiffs, they nonetheless failed to report Moore's identity to the authorities and/or to Plaintiffs despite having a duty to do so.
Plaintiffs are two whistleblowers enmeshed in a SLAPP (Strategic Lawsuit Against Public Participation) perpetuated since 1999 by Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan B. Felch and George Zdasiuk, hereafter (“Varian”). 1 Varian is represented by the Orrick Herrington & Sutcliffe LLP (“Orrick”) and the Pillsbury Winthrop (“Pillsbury”) LLP. Varian has also employed the appellate specialist Gerald Z. Marer, since deceased, and the Farella Braun + Martel LLP. Notwithstanding this almost surrealistic illegal onslaught, Plaintiffs continue to everyday exercise their First Amendment privilege. The California Newspaper Publishers Association has in fact called this remarkably acrimonious SLAPP the “quintessential SLAPP” and along with the Attorney General of California, the Los Angeles Times, the San Francisco Chronicle, the American Civil Liberties Union (“ACLU”) and hundreds more has cast its support with Plaintiffs and condemned Varian. Varian, in fact, has received no public support whatsoever.
Plaintiffs and their attorneys have received threatening messages throughout much of the Varian SLAPP, some of which have come from Varian employees, one of whom has been represented by Varian’s Orrick attorneys. And as Plaintiffs won in the courts, the threats grew both in intensity and frequency. Fearing for the safety of their families Plaintiffs sought assistance from law enforcement agencies. A Federal Grand Jury Subpoena was issued and on February 14, 2003, the Federal Bureau of Investigation (“FBI”) arrested Moore for violating 18 U.S.C. Section 875(c), the transmission of threatening communications in interstate commerce: “whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Agilent responded to the FBI arrest by firing Moore on April 30, 2003 for using their equipment to make the threats. On June 5, 2003, Moore entered into a plea agreement with the U.S. Attorney promising: “I will make a good faith effort to pay any fine, forfeiture or restitution I am ordered to pay.” Under protection of the FBI and local police, Plaintiffs filed the above captioned complaint on July 22, 2003. Moore pled guilty to Federal charges, was sentenced on September 11, 2003 and remains on four years probation with a $9,208.50 restitution obligation due Plaintiffs. Notwithstanding his sentencing, Moore again threatened to physically harm Plaintiffs and on February 24, 2004 Plaintiffs requested law enforcement intervention. The six-foot three, 340 pound Moore is by all counts dangerous.
The Orrick has an unprecedented reputation as a perpetrator of SLAPP. Lynne C. Hermle (“Hermle”), a partner and head of Orrick’s employment litigation office in Menlo Park, California is arguably the company’s foremost SLAPP attorney. Hermle has gone to great lengths to censor lawful speech even having attempted to prevent the sale and distribution of the book entitled Be Careful Who You SLAPP a month before it was published. Fueled with virtually unlimited corporate resources, Hermle and her SLAPP litigation team have employed bogus legal claims that purposely violate the Constitutional Rights of individual law-abiding Americans only to have them later summarily dismissed in the courts. On April 7, 2000, for example, Hermle lost a summary judgment ruling against Plaintiffs in the U.S. District Court of California, which was the basis Hermle and her SLAPP team used to obtain and enforce an illegal injunction against Plaintiffs. On September 11, 2000, Hermle lost again to Plaintiffs, this time in the U.S. Ninth Circuit Court of Appeal, in which three Appellate Justices “dissolved as a matter of law” a preliminary injunction imposed by Hermle and her SLAPP team. Most recently the Court of Appeal of the State of California Sixth Appellate District published on November 13, 2003 their opinion in the matter of Varian Medical Systems, Inc., et al. v. Delfino & Day, case H024214, the three Appellate Justices writing “the portion of the injunction prohibiting future speech is an impermissible prior restraint under both the state and federal constitutions.” Three times admonished by the United States Government for illegally attempting to curtail lawful speech and yet today, Hermle advertises on her Orrick Web site as having “obtained a comprehensive permanent injunction” against Plaintiffs.
Moore is no stranger to SLAPP suits. Moore responded to the above-captioned case with a counter-complaint. It was summarily dismissed on January 20, 2004 as a SLAPP and Moore was ordered to pay $3,580 in sanctions. Moore has ignored this Superior Court order and refused to make any payment. Moore has also been sanctioned by this Court for his abuse of the discovery process and refused to comply with this Courts’ order to pay Plaintiffs sanctions.
Unbeknownst to Plaintiffs and at a time when they were actively attempting to discover the identity of the person(s) threatening them, Moore identified himself to Matthew H. Poppe (“Poppe”), another Orrick SLAPP attorney. Moore enlisted Poppe’s help in circumventing the restitution that Chief Magistrate Judge Patricia V. Trumbull had ordered on October 31, 2003 Moore pay Plaintiffs. Moore also communicated with Pillsbury’s Thomas V. Loran III (“Loran”) in furtherance of violating his plea agreement. Loran has since been involved in the taking of money from Day’s two teenage daughters’ bank accounts and related harassing activities.
Hermle and Poppe must not be allowed to misuse discovery and avoid testifying truthfully and completely about matters that involve them and Moore a convicted Federal criminal. Indeed, there is a long time pernicious association between Moore, Varian, and its attorneys regarding the harassment of Plaintiffs that demands discovery. In fact, the Third Cause of Action of the Complaint calls for the naming of additional defendants:
“Upon information and belief, Does 1-50, or some of them, knew that Defendant Moore was making threats; knew Moore was unstable and might carry out the threats; and knew or should have known that either the threats themselves were criminal or were likely to lead to criminal behavior involving imminent physical danger or death to Delfino and Day; because of their animus toward Delfino and Day, they nonetheless failed to report Moore’s identity to the authorities and/or to Delfino and Day despite having a duty to do so.”
Court documents surrendered by the Orrick and Pillsbury show that electronic communication between Moore and Hermle began at least as early as July 24, 2001. Communication has continued intermittently between Moore and Hermle, Poppe, and Loran through mid-April 2004. Moore sent at least two e-mails to Hermle, one in 2001 and another in 2002. Moore sent at least four e-mails to Poppe in 2003 and two additional e-mails in 2004. Poppe responded to Moore, sending at least five e-mails to Moore between March 12, 2003 and April 19, 2004. Loran corresponded via e-mail with Moore at least twice in February 2004 and even arranged a clandestine meeting with Andrew Lanphere another Pillsbury attorney. A cursory examination of the e-mails implies that indeed there were yet undisclosed additional face-to-face meetings, and telephonic and other electronic communications between Moore and attorneys representing the Varian SLAPP. Moore even e-mailed Santa Clara County Superior Court Judge Jack Komar on April 16, 2002, saying “if I ever met [Delfino] him in person I would have a strong urge to punch him in the nose).” After communications had commenced between Moore and Orrick, on September 17, 2002 Poppe said in open court to Judge Komar: “We have assured them informally that it is not [the Varian] plaintiffs, that [the Varian] plaintiffs have no knowledge of who is doing this,” referring to Moore’s plethora of Internet threats. On December 12, 2003, Delfino confronted Judge Komar and Loran in open court with the threatening Moore e-mail, both of whom denied on the record any prior knowledge.
The mountain of evidence demanding discovery in this matter is truly overwhelming. And yet Hermle and her subordinate Poppe dance on the border of lawlessness. It is simply outrageous for the Orrick to object to depositions and to try to limit the scope of these depositions. Moore is not an Orrick client. Actions or lack thereof that Hermle and Poppe undertook regarding Moore’s illegal activities are not privileged. If indeed there is nothing to discover as purported by the Orrick then the Hermle and Poppe depositions will proceed expeditiously, end quickly and there is no a priori need for Court intervention. Orrick has needlessly burdened this Court and its true intent that is only to hinder discovery and further tax the limited financial resources of two In Pro Per and Informa Pauperis Plaintiffs.
1California Supreme Court case S121400, Varian Medical Systems, Inc., et al. v. Delfino & Day (2003) 113 Cal.App.4th 273, review granted Nov. 13, 2003, is the subject of Be Careful Who You SLAPP, by Michelangelo Delfino and Mary E. Day, ISBN 0972514104. This book is the undisputed factual account of this case and is already held in over 800 libraries throughout the world.
II. PROCEDURAL BACKGROUND RE: DISCOVERY
On July 15, 2004 Poppe and Hermle were served Santa Clara County Superior Court issued deposition subpoenas for personal appearance. Hermle was noticed for July 30, 2004 and Poppe was noticed for August 5, 2004. Despite Plaintiffs’ good faith attempts to meet and confer, Hermle and Poppe filed a Motion for Protective Order to limit the duration and subject matter of their depositions.
III. LEGAL ARGUMENT
The scope of permissible discovery is broad. California Code of Civil Procedure (“CCP”) Section 2017(a) permits discovery:
regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.
The courts apply these standards liberally, and any question as to whether discovery should be allowed is to be resolved in favor of permitting discovery. E.g., Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal. 3d 785, 790.
CCP §2025 provides that any party may obtain discovery by taking in California the oral deposition of any person. Misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.” CCP § 2023(a)(4).
The discovery propounded on Hermle and Poppe goes directly to the heart of this case. Rather than simply submit to an oral deposition, Hermle and Poppe instead argue they have no relevant information to provide which could be borne out by simply testifying under oath as to the extent of their knowledge, involvement and assistance in Moore’s efforts to harm Plaintiffs.
Orrick’s motion for a protective order is based on Orrick’s assertion that it has produced all pertinent correspondence with Moore, and “Hermle and Poppe have no other information that is even remotely relevant to this case.” In September 2002, Orrick made a similar claim in the Varian SLAPP litigation, in opposition to a motion for discovery pending appeal. At that time, the U.S. Attorney and the FBI had not yet confirmed Moore’s identity as the perpetrator of the death threats against Plaintiffs and their attorneys. Plaintiffs moved for discovery against Varian, seeking to inquire whether Varian or Orrick had any information concerning the identity of the perpetrator. The exhibits to that motion included many of the pseudonymous threats, plus one e-mail communication by Moore under his true name.
Orrick's written opposition to the motion, filed September 6, 2002, included assertions that “[The Varian] plaintiffs and Orrick have no knowledge concerning the alleged death threats” and “[The Varian] plaintiffs have no information about the person(s) responsible for the alleged threats.” At the hearing on the motion on September 17, 2002, Poppe stated to Judge Komar that “[The Varian] plaintiffs have no knowledge of who is doing this.” Judge Komar denied the motion.
In connection with the present litigation, Orrick has now produced e-mail communications that Moore sent under his true name to Hermle on July 24, 2001, and April 12, 2002, as well as to Julie Fouquet (“Fouquet”) on September 25, 2001. Fouquet is in fact another Orrick client, who has been represented in the Varian SLAPP litigation by Hermle and Poppe since at least June 2001.
Thus, it is now evident that Hermle and Poppe were not being truthful when they told Judge Komar in writing on September 6, 2002, and in open court on September 17, 2002, that they had no “information about” or “knowledge of” who was making the death threats. In fact, Hermle and Poppe had such information and knowledge to the extent that Hermle and Fouquet had previously received e-mail from Moore, who had been identified in the discovery motion as a possible perpetrator.
Because Orrick’s prior claim of “no information” in the Varian SLAPP turned out to be untrue, Orrick’s similar claim of “no information” in its motion for a protective order in the present litigation cannot be trusted.
In short, there is no legal justification for Hermle and Poppe’s refusal to submit to oral deposition called for by Plaintiffs’ legitimate discovery requests.
IV. SANCTIONS
In addition to Plaintiffs’ entitlement to take the oral depositions of Hermle and Poppe, Plaintiffs should be awarded their costs incurred in filing this motion, as sanctions against Hermle and Poppe. CCP § 2025(i) provides that the Court “shall” impose a monetary sanction under CCP § 2023 against any party who unsuccessfully makes a motion for this protective order. Further, CCP § 2023(b)(1) provides that this Court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” Misuse of discovery includes employing a discovery method in a manner that causes undue burden and expense. As a result of Hermle and Poppe’s misconduct, Plaintiffs have been forced to incur costs in filing this motion, which will be submitted to the Court on reply. These costs include copying, filing and service charges and are estimated to be $230 at this time. [Delfino Decl., 3.] Accordingly, this Court should award Delfino and Day their costs as a sanctions award against Hermle and Poppe.
V. CONCLUSION
Orrick’s motion for a protective order should be denied and sanctions awarded against Hermle and Poppe for their abuse of the discovery process.
DATED: August 3, 2004
By:
MARY E. DAY
Plaintiff In Pro Per & In Forma Pauperis
By: MICHELANGELO DELFINO
Plaintiff In Pro Per & In Forma Pauperis"
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