Albritton v. Cisco Systems, Inc. et al

Filing 201

RESPONSE to Motion re 192 MOTION in Limine filed by Cisco Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Text of Proposed Order)(Babcock, Charles)

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EXHIBIT "E McAndrews , Peter J. 11!7/2008 ( 9 1 I A P P E A R A N C E S: 2 3 4 5 6 7 On behalf of the Plaintiff: NICHOLAS H. PATTON, ESQ. PATTON, TIDWELL & SCHROEDER, LLP 4605 Texas Boulevard 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Texarkana, Texas 75503 Phone: 903.792.7080 Fax: 903.792.8233 E-mail: nickpatton@texarkanalaw.com On behalf of the Defendant Cisco Systems, Inc.: CHARLES L. BABCOCK, ESQ. JACKSON WALKER L.L.P. 1401 McKinney Street, Suite 1900 Houston, Texas 77010 Phone: 713.752.4200 Fax: 713.752.4221 E-mail: cbabcock@jw.com 23 24 25 West Court Reporting Services 800.548 . 3668 Ext. 1 Page 2 McAndrews , Peter J. 11/7/2008 1 2 A P P E A R A N C E S: (Continued) 3 4 On behalf of the Defendant Rick Frenkel: George L. McWilliams, Esq. LAW OFFICES OF GEORGE L. McWILLIAMS, P.C. 406 Walnut Street 5 6 7 Texarkana , TX 75504-0058 Phone: 870 .772.2055 Fax: 870 .773.2967 On behalf of the Deponent: GEORGE P. McANDREWS, Esq. McANDREWS HELD & MALLOY, LTD. 14 15 16 17 500 West Madison Street, 34th Floor Chicago, Illinois 60661 Phone: 312.775.8000 Fax: 312.775.8100 E-mail: gmcandrews@mcandrews-ip.com 18 19 20 21 22 23 24 25 ALSO PRESENT: Joe Pate, Videographer West Court Reporting Services 800 . 548.3668 Ext. 1 Page 3 McAndrews , Peter J. 11/7/2008 INDEX NOVEMBER 7, 2008 5 6 7 8 9 10 11 12 13 WITNESS EXAMINATION PETER J. McANDREWS By Mr. Babcock: By Mr. McWilliams: By Mr. Patton: 9 78 88 DEPOSITION EXHIBITS NUMBER/DESCRIPTION IDENTIFIED E 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 30 10/17/07 E-mail from pmcandrews to Eric M. Albritton EMA 1006 - 1007 PREVIOUSLY MARKED 59 West Court Reporting Services 800.548.3668 Ext. 1 Page 4 McAndrews , Peter J. 1117/2008 3: I DEPOSITION EXHIBITS (Continued) NUMBER/DESCRIPTION IDENTIFIED 2 3 4 5 Exhibit 37 2/25/08 e-mail from pmcandrews to 60 Eric M. Albritton 6 7 8 9 10 11 12 Subject: EMA 1363 Troll Tracker exposed PREVIOUSLY MARKED Exhibit 121 Subpoena (2 pages) 16 El 13 14 15 16 17 18 19 20 21 22 23 24 Exhibit 123 4/7/08 letter from George P. McAndrews to Mark Chandler Exhibit 122 4/11/08 letter from Charles L. Babcock to George P. McAndrews (1 page) 75 64 (10 pages) 25 West Court Reporting Services 800.548 . 3668 Ext. 1 Page 5 McAndrews , Peter J. 11/7/2008 1 2 3 4 5 6 7 DEPOSITION EXHIBITS (Continued) NUMBER/DESCRIPTION IDENTIFIED Exhibit 124 E-mail string Subject: Draft of Complaint 76 EMA 0863 - 0865 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 126 E-mail string Subject: V. Cisco Activity in ESN Exhibit 125 10/15/07 e-mail from pmcandrews to Eric M. Albritton Subject: Complaint ESN vs. Cisco 17 EMA 0865 20 EMA 0938 - 0940 West Court Reporting Services 800.548.3668 Ext. 1 Page 6 McAndrews , Peter J. 11/7/2008 0% 1 I DEPOSITION EXHIBITS (Continued) NUMBER/DESCRIPTION IDENTIFIED 2 3 4 5 6 7 8. 9 Exhibit 127 E-mail string Subject: Complaints EMA 1010 - 1011 ESN - Battle of 33 10 11 12 13 Exhibit 128 E-mail string Subject: ESN v. Cisco 76 EMA 1023 - 1024 0 14 15 16 Exhibit 130 E-mail string: Lawsuit against Frenkel EMA 1365 48 17 18 19 20 21 22 23 24 25 Exhibit 131 E-mail string Subject: Complaints EMA 1516 - 1517 ENS - Battle of 77 West Court Reporting Services 800.548.3668 Ext.1 Page 7 McAndrews , Peter J. 1, n1z008 1 THE VIDEOGRAPHER: Here begins the video 2 3 4 5 taped deposition of Peter McAndrews, tape one, Volume I, in the matter of Eric M. Albritton versus Cisco Systems, Incorporated, et al., in the United States District Court, Eastern District of Texas, Tyler Division, Case Number 6:08-CV-00089. 6 7 Today's date is November the 7th, 2008, and the time is approximately 11:15 a.m. on the video monitor. Video operator today is Joe Pate representing West Court Reporting Services. The court reporter is Cynthia Conforti of Thompson Court Reporters reporting on behalf of West Court Reporting Services. Today's deposition is being taken on behalf of the defendant and is taking place at One IBM Plaza, Chicago, Illinois. 18 19 20 21 22 23 24 25 Cisco. Will counsel please introduce yourselves and state whom you reserve. MR. PATTON: Nick Patton. I represent the plaintiff Eric Albritton. MR. GEORGE McANDREWS: I'm George McAndrews. I am representing the witness. Charles Babcock representing MR. BABCOCK: West Court Reporting Services 800.548.3668 Ext. 1 Page 8 McAndrews , Peter J. 11/7/2008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. McWILLIAMS: I'm George McWilliams, representing Rick Frenkel. THE VIDEOGRAPHER: Will the court reporter please swear in the witness. (Witness duly sworn.) PETER J. McANDREWS, called as a witness herein, having been first duly sworn, was examined and testi-fied as follows: EXAMINATION BY MR. BABCOCK: Q. A. Would you state your name, sir. It's Peter J. McAndrews. Q. living? A. Q. A. Malloy. Q. A. Q. A. Q. Mr. McAndrews, what do you do for a I'm a lawyer. Where do you work? I work at the law firm of McAndrews Held & In Chicago? Yes. Are you a partner in the firm? Yes, I am. Okay. And as I understand it, there's some other McAndrews in this firm. One would be West Court Reporting Services 800.548.3668 Ext. 1 Page 9 McAndrews, Peter J. 1117/2008 X 1 maybe, but that's typically how I would use the term. 3 4 5 6 7 Q. I was playing basketball one day and was really getting into it with a guy and called him a punk, and he was Hispanic, and apparently in that culture calling somebody a punk is a bad thing because next thing I know there was a fist flying by my face, but you -- your definition I think is more accepted in the crowd that we run in. Let me hand you Exhibit 37. This is an e-mail from you to Eric Albritton and with a copy to John Ward, correct? A. Q. That's right. And it's dated February 25th, 2008, 10:31 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 in the morning, correct? A. Q. That's right. And the subject is Troll Tracker exposed, and you send a link. What did you mean by "Troll Tracker exposed"? A. I don't recall if that was title of an article that I read, but I -- but what I was referring to is that Rick Frenkel had outed himself as Troll Tracker. Q. And then you go on to say: Rick Frenkel is the same punk we met with 25 VI West Court Reporting Services 800.548 . 3668 Ext. 1 Page 60 McAndrews , Peter J. 11f1/2008 1 2 3 4 5 at Cisco last month. Did I, did I read that correctly? A. Q. Yes, you did. And why did you use the phrase "punk" to refer to Rick Frenkel? A. Because I thought that he was 6 7 8 9 disrespectful and somewhat arrogant, and that was surely inclusive of my knowledge at this time that he had written all those defamatory things about my firm, my client and my local counsel and that he had done it anonymously. 10 11 12 13 Q. The -- his, his being disrespectful, young and arrogant was in part based on your interactions with him in a meeting with Cisco the prior month or a month earlier. Is that right or not? A. I would say it was based in part on that E 14 15 16 17 18 19 20 21 22 23 24 25 but primarily tainted by what I now knew that he had done. Q. All right. And when you say "the defamatory things about my client, my firm and my local counsel," you are referring to the October 17th and 18th, 2007 articles, correct? A. Yes. And I believe there was one further article, at least one. West Court Reporting Services 800.548 . 3668 Ext. 1 Page 61 McAndrews , Peter J. 11/7/2008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 In re Albritton vs. Cisco, et al. Case No. 6:08-CV-00089 I hereby certify that I have read the foregoing transcript of my deposition, given on November 7, 2008, at the place aforesaid, consisting of pages 1 through 97, inclusive, and I do again subscribe and make oath that the same is a true, correct, and complete transcript of my deposition so given as aforesaid, as it now appears. Please check one: I made no corrections Number of errata sheets submitted (Signed) 16 PETER J. McANDREWS ALSO PRESENT: SUBSCRIBED AND SWORN TO before me this day of 2008. Notary Public West Court Reporting Services 800.548 . 3668 Ext. 1 Page 93 McAndrews , Peter J. 11!7/2008 1 2 CORRECTION PAGE 3 4 CASE NAME: DEPOSITION OF: DATE TAKEN: In re Albritton vs. Cisco, et al. PETER J. McANDREWS November 7, 2008 5 6 7 8 PAGE LINE CHANGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SIGNATURE: DATE: West Court Reporting Services 800.548 . 3668 Ext. 1 Page 94 McAndrews , Peter J. 1117!2008 1 2 CORRECTION PAGE 3 4 5 CASE NAME : DEPOSITION OF: DATE TAKEN: In re Albritton vs. Cisco, et al. PETER J. McANDREWS November 7, 2008 6 PAGE LINE CHANGE 13 14 15 16 17 18 19 20 21 22 23 24 25 SIGNATURE: DATE: West . Court Reporting Services 800.548 . 3668 Ext. 1 Page 95 McAndrews , Peter J. 11/7/200$ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF ILLINOIS } SS: COUNTY OF C 0 0 K The within and foregoing deposition of the witness, PETER J. McANDREWS, was taken before CYNTHIA J. CONFORTI, CSR, CRR, Notary Public, at Suite 4000, 333 North Wabash Avenue, in the City of Chicago, Illinois, commencing at-11:14 a.m., on November 7, 2008. The said witness was first duly sworn and was then examined upon oral interrogatories; the questions and answers were taken down in shorthand by the undersigned, acting as stenographer and Notary Public; and the within and foregoing is a true, accurate and complete record of all the questions asked of and answers made by the aforementioned witness at the time and place hereinabove referred to. The signature of the witness was not waived and the deposition was submitted to the deponent as per copy of the attached letter. The undersigned is not interested in the within case, nor of kin or counsel to any of the parties. Witness my official signature and seal as West Court Reporting Services 800.548 . 3668 Ext. 1 Page 96 ,97 1 2 Notary Public in and for Cook County, Illinois, on this 11th daV of November, 2008. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25