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The FBI is investigating death threats made against two defendants and their attorneys embroiled in a bizarre Internet libel dispute. And just as the initial civil conflict with Varian Medical Systems Inc. and Varian Semiconductor Equipment Associates Inc. played out in cyberspace, the anonymous threats are being sent via e-mail and Yahoo message boards. “I am glad the investigation is on. It’s been very frightening. It’s gone on for a couple of months,” said former Varian scientist and defendant Michelangelo Delfino. Starting in April, Delfino, co-defendant Mary Day and Horvitz & Levy associate Jeremy Rosen have all received threatening e-mails. Threats have also been posted on Yahoo’s Varian message boards. In December, a jury found that Day and Delfino libeled their former employer and two of their managers on their caustic Web site and message boards. The duo had posted 17,000 Internet messages about Varian, its employees and the ensuing litigation. They also posted messages about Varian’s attorneys from Orrick, Herrington & Sutcliffe. A Santa Clara jury ordered them to pay $775,000 in damages and Santa Clara Superior Court Judge Jack Komar enjoined them from posting specific statements deemed libelous. Day and Delfino continued to post and appealed the injunction to the Sixth District Court of Appeal, arguing the judge and jury violated the First Amendment. The matter is pending, but the appellate court has stayed any contempt proceedings pending the appeal. Threatening messages turned over to the FBI include, “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,” which was posted on May 7. An e-mail dated Tuesday reads, “You can look forward to all your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head … . You think this is all clever little games — but your mommy and your lawyer won’t be around to save you from this. And remember you can’t be on guard 24 hours a day. You won’t always have whatever weapon you think will protect you. And you’ll never know when the hammer is coming down on YOU. Die, motherfucker. You’ll wish you had.” In April, Rosen, who is assisting on Day and Delfino’s appeal, received an e-mail reading, “I gave you notice and you have chosen to ignore it. You can’t say you weren’t warned.” Horvitz & Levy partner Jon Eisenberg, who is handling Day and Delfino’s appeal, acknowledged the FBI investigation. During the civil trial, Day and Delfino were accused of harassing their former bosses and co-workers and discussing their sexual activities and families. During the trial Judge Komar issued the injunction, saying, ” I certainly find there has been very serious defamation, a very serious harassment in this case by the defendants, by both of them. It is without remorse or repentance. There’s a promise to post and a commitment to do it until they’re dead … And I take them at their word.” Delfino, however, denied Wednesday any similarities, saying their Web site was about “truth, opinion and hyperbole. We are doing what we do best. We have followed the law. We are not threatening anyone.”

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