Ward v. Cisco Systems, Inc. et al

Filing 178

Ward v. Cisco Systems, Inc. et al

Doc. 178

Case 4:08-cv-04022-JLH Document 178

Filed 12/28/09 Page 1 of 12

IN THE UNf FED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JOHN WARD, JR. v. CISCO SYSTEMS, INC. C. A. NO. 08-4022 JURY TRIAL DEMANDED

DEFENDANT CISCO SYSTEMS, INC.'S MOTION FOR MAGISTRATE JUDGE SETSER TO COMPEL PRODUCTION OF DOCUMENT ON PRIVILEGE LOG AND BRIEF IN SUPPORT THEREOF TO THE HONORABLE MAGISTRATE JUDGE: Cisco System, Inc. ("Cisco") hereby files its Motion to Compel Production of Document on Privilege Log and Brief in Support as set forth below.
I.
INTRODUCTION

Plaintiff brought this action on March 13, 2008, claiming that Cisco had published defamatory articles about him that have damaged his reputation and caused him mental anguish. On March 30, 2009, Cisco served its First Request for Production on Plaintiff, which was aimed at discovering essential information relating to Plaintiff s claims and so that Cisco could prepare for depositions and further discovery in this case. Ward included a document on his privilege log that could not be privileged because it is a communication with someone who is not his attorney in this case. Cisco filed a motion to compel this document previously, but there was confusion about which document was at issue. Magistrate Judge Setser therefore ordered that Cisco should determine the correct document number from Plaintiff s privilege log and file another motion.

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On December 21, 2009, counsel for Plaintiff identified the document as document No. 6 from Plaintiff s privilege log.
II. ARGUMENT

In response to Cisco's First Request for Production, Plaintiff logged a document in his privilege log (Exhibit A) that could not be privileged. Number 6 states that it is a communication between D. Pridham and John Ward, Jr. and is described as "Work product and litigation strategy regarding Ward v. Cisco." (Exhibit A). Yet Ward testified that David Pridham was not an attorney in this litigation:
Q.

Is Mr. Pridham, who you referenced earlier, an attorney in the Ward versus Cisco case? No.

A.

(Deposition of John Ward, Exhibit B at 130:18-20). The communication could not possibly be privileged or work product when the conversation was not between Plaintiff and his attorneys in this lawsuit. Therefore, Ward should be ordered to produce the document. III.
CONCLUSION

For the reasons set forth above, Cisco requests that the Court overrule Plaintiff s objections and order Plaintiff to produce document no. 6 from Plaintiff s privilege log. In the alternative, Cisco requests that Plaintiff be required to produce the document for in camera inspection to determine whether it is privileged.

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Respectfully submitted,
JACKSON WALKER L.L.P.

Zs/ Charles L. Babcock

Charles L. Babcock Federal Bar No.: 10982 Email: cbabcock(i)jw.com t Richard E. Griffin Arkansas Bar No.: 63020 Email: [e-mail] Crystal J. Parker Federal Bar No.: 621142 Email: [e-mail] 1401 McKinney Suite 1900 Houston, Texas 77010 [phone] [phone] -- Fax Kurt A. Schwarz Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 Telephone: [phone] Telecopier: [phone] ATTORNEYS FOR CISCO SYSTEMS, INC.

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CERTIFICATE OF CONFERENCE The parties have conferred in good faith on the specific issues in dispute in this Motion, and they are not able to resolve their disagreements without the intervention of the Court.

/s/ Crystal J. Parker

CERTIFICATE OF SERVICE This is to certify that on this 30th day of December, foregoing was served via electronic mail upon: Patricia L. Peden Law Offices of Patricia L. Peden 5901 Christie Avenue Suite 201 Emeryville, CA 94608 Attorney for Plaintiff John Ward, Jr.
2009,

a true and correct copy of the

Nicholas H. Patton Patton, Tidwell & Schroeder, LLP 4605 Texas Boulevard P.O. Box 5398 Texarkana, Texas 75505-5398 Attorney for John Ward, Jr. /s/ Charles L. Babcock Charles L. Babcock

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Exhibit A

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JOHN WARD, JR. PRIVILEGE LOG 05/29/2009

No. 1 2 3

Pages 1 1 1

From P. McAndrews Chiaviello, Bob Eric Albritton

To John Ward, Jr. Eric Albritton John Ward, Jr John Ward, Jr. Eric Albritton Paul McAndrews Eric Albritton John Ward, Jr. Jason Saunders Paul McAndrews Eric Albritton John Ward, Jr. Jason Saunders John Ward, Jr.

Other Recipients

Date 3/08/08 3/14/08 10/16/07

4

2

Eric Albritton

Gmcandrews pmcandrews

10/18/07

Description Discussion of filing of ESN lawsuit Re Ward v. Cisco Attorney communications regarding filing of ESN litigation Communications regarding litigation strategy in ESN v. Cisco

Privilege AC WP WP AC WP

AC WP

5

2

Eric Albritton

Gmcandrews pmcandrews

10/18/07

Communications regarding litigation strategy in ESN v. Cisco Work product and litigation strategy regarding Ward v. Cisco Attorney client communications regarding discussions with Cisco Re filing of ESN lawsuit Re filing of ESN lawsuit Re filing of ESN lawsuit Litigation strategy in ESN lawsuit Litigation strategy in ESN lawsuit Comment regarding pending

AC WP

6

1

D. Pridham

11/06/07

AC WP

7

2

P. McAndrews

Eric Albritton

John Ward, Jr.

2/25/08

AC WP

8 9 10 11

1 1 1 1

P. McAndrews Eric Albritton Eric Albritton Eric Albritton

12 13

2 1

John Ward, Jr. Terry Fokas

Eric Albritton John Ward, Jr. John Ward, Jr. John Ward, Jr. Jason Saunders, John Ward, Jr. and Amie Mathis Eric Albritton John Ward, Jr.

3/9/08 10/16/07 10/17/08 10/18/07

AC WP AC WP AC WP AC WP

10/17/07 1/22/08

AC WP AC WP

Case 4:08-cv-04022-JLH Document 178
Kevin Meek John Ward, Jr.

Filed 12/28/09 Page 7 of 12
lawsuit and Troll Tracker post Emails re potential case and comment regarding Troll Tracker post Email re filing of ESN lawsuit Emails re filing of ESN lawsuit Email re filing of ESN lawsuit

14

1

Bruce Lagerman

4/5/08

AC WP

15. 16. 17.

1 9 2

Eric Albritton P. McAndrews Eric Albritton

Jason Saunders Eric Albritton Eric Albritton, T. Wimbiscus, P.W.McAndrews, Eric Albritton, Johnny Ward, Jason Saunders Jason Saunders, Johnny Ward, Amie Mathis T. Wimbiscus, P.W. McAndrews, Eric Albritton, Johnny Ward, Jason Saunders Johnny Ward Johnny Ward, Eric Albritton Johnny Ward Eric Albritton

Johnny Ward, Amie Mathis Amie Mathis GMcAndrews, PMcAndrews

10/18/07 10/18/07 10/18/07

AC WP AC WP AC WP

18.

2

Eric Albritton

10/18/07

Email re filing of ESN lawsuit

AC WP

19.

2

Eric Albritton

GMcAndrews, PMcAndrews

10/18/07

Email communication regarding filing of ESN lawsuit

AC WP

20. 21. 22. 23.

1 1 3 2

Eric Albritton Eric Albritton Eric Albritton Johnny Ward

10/17/07 10/16/07 10/16/07 10/17/07

Email re filing of ESN lawsuit Email re filing of ESN lawsuit Email re filing of ESN lawsuit Email re filing of ESN lawsuit

AC WP AC WP AC WP AC WP

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Exhibit B

Case 4:08-cv-04022-JLH Document 178
·

Filed 12/28/09 Page 9 of 12
8/10/2009

Ward, Jr., Thomas John

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JOHN WARD, JR., V. CISCO SYSTEMS, INC.
*

Rpl
):4b CO

* C.A. NO. 08-4022 * JURY TRIAL DEMANDED

ORAL AND VIDEOTAPED DEPOSITION OF THOMAS JOHN WARD, JR. AUGUST 10, 2009

·
ORAL AND VIDEOTAPED DEPOSITION of THOMAS JOHN WARD, JR., produced as a witness at the instance of the Defendant, and duly sworn, was taken in the above-styled and -numbered cause on the 10th day of August, 2009, from 9:44 a.m. to 1:21 p.m., before Stacy L. Jordan, CSR in and for the State of Texas, reported by machine shorthand, taken in the law offices of John Ward, Jr., 111 West Tyler Street, City of Longview, County of
110

Gregg, State of Texas, pursuant to the Federal Rules of Civil Procedure.

West Court Reporting Services
1

800.548.3668 Ext. 1
Page 1

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8/10/2009

Ward, Jr., Thomas John

,

having been first duly sworn, testified as follows: EXAMINATION BY MR. BABCOCK: Q. A. Q. Will you state your name, sir. Thomas John Ward, Jr. Mr. Ward, right in front of you is is the

2 3 4 5 6 7 8 9

deposition notice for your wife, which I forgot to introduce. A. Q. A. Q. Okay. But here's Exhibit 2. Okay. The only reason I do this is so I can keep That's your notice.

·
·

10 11 12 13 14 15 16 17 18 19 20 21 22 23

track of depositions by numbers. Would you tell us how you're employed? A. I'm an attorney working for Ward & Smith law

firm, which is an assumed name. Q. A. Okay. T. John Ward, Jr., P.C. is the business entity

that I'm employed by. Q. And T. John Ward, P.C. is the owner of the

Ward & Smith law business; is that right? A. Q. Jr. Yes.

T. Ward [sic], Jr., P.C. I take it there is a Smith?

·
1

24 25 A.

There is.

West Court Reporting Services

800.548.3668 Ext 1 Page 6

·
·

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8/10/2009

Ward, Jr., Thomas John

·

1 2 3

Q.
Fulbright A. Q.

Is -- Mr. Chiaviello is the lawyer at

Chiaviello (pronunciation). Chiaviello. Sorry. He is the lawyer at

· · ·

4 5 6 7 8 9 10 11 12

Fulbright, correct? A. Q. Correct. And he's the one that told you about a

conversation he'd had with somebody else about you? A. Correct. Okay. Yes. Are -- is he a -- an attorney on the Ward Are you working with him on any case?

Q.
A. Q.

·

13 14 15 16 17 18 19 20 21 22 23

versus Cisco case? A. Q. A. No. Okay. Okay.

But I'm in -- I'm in a number of cases with

Mr. Chiaviello and his firm.

Q.
A.

Is Mr. Pridham, who you referenced earlier, an

attorney in the Ward versus Cisco case? No. Is he a client? He's an attorney for a client -- former client

Q.
A.

who I'm no longer working for.

·

24 25

Q.

Okay.

Do you recall talking to him about

litigation strategy regarding Ward versus Cisco?

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Page 144

1
2 3 4 5 6

STATE OF TEXAS pNTY OF DALLAS ) 1

(02,,
This is to certify that I, Stacy L. Jordan, fied9dythand Reporter in and for the State of

was101?,rti that the foregoing deposition of THOMAS ; Jt WA °reported stenographically by me at

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8 9 10 11 12 13 14 15 16 17 18 19 20 21
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e aR/fol c dicated, said witness having been .1 by me, and that the deposition is a 13(9d /.4r

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stimony given by the witness. 'fy that I am neither counsel
A)Xpy /4

for nor r

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in this cause and am not outcome. /office on this 17th day

financially ipre j Givenr of August, 2009. Cr5

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.r,10. 4 11 CSR 7499 STACY L. Expiration Datt: 12/31M Firm No. 593

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WEST COURT REPORTING SERVICES 221 Main Street Suite 1250 San Francisco, California 94105 [phone] Taxable cost of original charged to Defendant:

22 23 24 25

$
Atty: Mr. Charles L. Babcock and Ms. Crystal J. Parker, Jackson Walker, L.L.P.

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