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A case involving two ex-Varian Medical Systems Inc. employees accused of posting libelous and often searing messages on the Internet about their former bosses is in trial in Santa Clara County, Calif., Superior Court. One of the first Internet libel cases to go to trial is marked by the unusual behavior of defendants Michelangelo Delfino and Mary Day. The two sit in court each day scribbling notes and posting comments about the trial on Yahoo message boards and their own Web site. And it’s not nice. They said one witness needed a booster seat. They called opposing attorney Lynne Hermle, a partner with San Francisco-based Orrick, Herrington & Sutcliffe, the “grand dame of SLAPP.” Hermle, who represents Varian, isn’t missing a beat, though — she’s introducing the Internet postings into evidence, sometimes the same day the messages are posted. During testimony last week Hermle introduced as evidence an Internet posting about the trial that describes Varian CEO Richard Levy as needing a booster seat to testify. Delfino and Day also go after Varian Vice President George Zdasiuk and Varian manager Susan Felch, calling her a “liar and/or hallucinator” and a “crazy yenta b***h.” Both Felch and Zdasiuk are plaintiffs in the suit. The two defendants also lit into Hermle, calling her the “Grand Dame of SLAPP,” (strategic lawsuits against public participation); and her associate, Matthew Poppe, who they call her “Orrick subordinate” and “POOP.” Delfino and Day describe the start of the trial on their Web site: “This morning the Grande Dame of SLAPP assisted by more than five Orrick SLAPPers delivered Varian’s Opening Statement. It took an hour, not too surprising when you have nothing to say,” they write. “Representing the lovely Ms. Day and the good Dr. Delfino, both smartly attired, were famed anti-SLAPP attorneys Randall M. Widmann, Esq. and Glynn P. Falcon, Esq.” Judge Jack Komar, who is presiding over the trial, reminds jurors daily not to view the defendants’ Web site or their Yahoo message board postings. Widmann, who is representing Day, said while some of the language may be offensive, it’s protected speech. “My clients believe quite strongly that the Constitution of the United States provides that you may not like what people say, you may not agree with what they say and some of the language may be offensive and profane, but it’s your right to speak out.” Widmann said that his client’s decision to publish daily accounts of the trial is unusual but not illegal. “My duty is to advise my client. My client is doing what she thinks she has a right to do,” Widmann said. Widmann said many of the Internet postings in question are truthful while others are “extravagant exaggerations” that no one would believe to be real. Hermle did not return calls. In Varian Medical Systems v. Delfino 780187, defendants Delfino and Day are accused of posting scathing messages that accuse a company executive of pregnancy discrimination, secretly videotaping bathrooms, being homophobic and having sexual affairs. The two are also accused of impersonating company managers on Yahoo message boards. Another twist in the case has been the defense attorney’s attempts to reveal the identity of other Internet posters critical of Varian. Attorneys from Orrick and Los Angeles-based Baker & Hostetler, who are representing the John Does, were able to quash subpoenas that would have required Yahoo to divulge the posters’ identities, Widmann said. Widmann said pushing this case to trial is just an attempt to bankrupt and silence his client. The trial is expected to last six weeks.

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