Ward v. Cisco Systems, Inc. et al

Filing 58

RESPONSE to Motion re 57 MOTION to Compel Plaintiff's Motion to Compel Responses to Interrogatory Nos. 1-9 Defendant's Response to Plaintiff's Motion to Compel Responses to Interrogatory Nos. 1-9 by Cisco Systems, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Order)(Babcock, Charles) Modified on 2/25/2009 to edit text (cap).

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Ward v. Cisco Systems, Inc. et al Doc. 58 Att. 1 Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 1 of 13 EXHIBIT `B" Dockets.Justia.com Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 2 of 13 a JOHN WARD, JR. (3 \ '' 1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION V. C.A. NO. 08-4022 JURY TRIAL DEMANDED CISCO SYSTEMS, INC. AND RICK FRENKEL PLAINTIFF JOHN WARD JIL S FIRST SE OF REQUESTS FOR _T ADNUSSIONS TO DEFENDANT cISCO SYSTEMS. INC. Pursuant to Federal Rule Civil Procedure 36, Plaintiff John Ward Jr. ("Ward"} hereby requests that Cisco Systems, Inc. ("Cisco") respond within thirty days of service to the following requests for admission. Ward, requests and instructs that each request for admission shall be answered separately and fully in writing under oath. The answers are to be signed by the person making them. If Cisco cannot answer any request for admission in full after exercising due diligence to secure the full information to do so, so state and answer to the extent possible, setting forth in detail the reasons why you cannot truthfully admit or deny the matter and detailing what you did in attempting to secure the unknown information. Requests for Admission Regigest No. 1: Admit that the document attached hereto as Exh. 1 is a true and correct copy of the Oct. 17, 2007 internet post published by Richard Frenkel. Rea nest No. 2: Admit that the document attached hereto as Exh. 2 is a true and correct copy of the Oct. 18, 2007 i.nternet post published by Richard Frenkel. Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 3 of 13 0 Reguest No. 3: Admit that the document attached hereto as Exh. 3 is a true and correct copy of the Oct. 18, 2007 internet post after it was edited by Richard Frenkel. Request No . 4: Admit that Exh. 1 (October 17, 2007 post) attached hereto remained publically available on the Troll Tracker Blog until March 6, 2008. Request No. 5: Admit that Exh. 2. attached hereto remained publically available on the Troll Tracker Blog until March 6, 2008. Request No. 6: Admit that Cisco did not ask Frenkel to remove the October 17, 2007 post (Exh. 1) from the Troll Tracker Blog. Request No. 7: Admit that Cisco did not ask Frenkel to remove the October 18, 2007 post (Exh. 2) from the Troll Tracker Blog Request No. 8: Admit that Cisco did not ask Frenkel to remove the October 18, 2007 post, as amended, (Exh. 3) from the Troll Tracker Blog. Request No. 9: Admit that the complaint filed in the ESN v. Cisco litigation was filed on October 16, 2007. Request No. 10: Admit that the Eastern District of Texas has at all times had subject matter jurisdiction in the ESN v. Cisco litigation. Regpest No. 11: Admit that ESN did not manufacture subject matter jurisdiction in the ESN v. Cisco litigation. Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 4 of 13 0 Request No. 12: Admit that Cisco stipulated in the ESN v. Cisco litigation that the Eastern District of Texas had subject-matter jurisdiction in the ESN v. Cisco litigation. Request No. 13: Admit that the encrypted stamp at the bottom of the Notice of Electronic Filing of the ESN complaint was not altered. Request No. 14: Admit that ESN's local counsel, Eric Albritton did not sign a civil cover sheet stating that the ESN complaint had been filed on October 15, 2007. Request No. 15: Adroit that the amended complaint filed by ESN included the issued patent as an exhibit to the amended complaint. Request No. 16: Admit that Local Rule CV-5(b) dictates the time of receipt of electronic filings in the Eastern District of Texas. Request No. 17: Admit that under the Eastern District of Texas's Local Rule CV-5(b) a pleading is deemed filed when it is received by the court. Request No. 1S: Admit that the Local Rules of the Eastern District of Texas do not require that a motion be filed before a docket entry can be modified. Request No. 19: Admit that placing a call to the court clerk to discuss an error with the court's electronic filing system is not prohibited by the Texas Rules of Professional Conduct. Request No. 20: Admit that Cisco asked Baker Botts to call the Eastern District of Texas court clerk's office to inquire as to why the ESN v. Cisco docket entry was changed to reflect an October 16, 2007 filing date. Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 5 of 13 Request No. 21: Admit that the date reflected on the header or banner across the top of a pleading filed in the Eastern District of 'T'exas is not the official record of the date a document is filed with the Court. Request No. 22: Admit that dates reflected on the court's docket are not the official record of the date a document is filed in the Eastern District of Texas. Request No. 23: Admit that the encrypted stamp contained at the bottom of the Notice of Electronic Filing is the official record of the date a pleading is filed in the District Court for the Eastern District of Texas. Request No. 24: Admit that it is not uncommon for the court clerks in the Eastern District of Texas to make corrections to docket entries. Request No. 25: Admit that the court clerk has made corrections to the Albritton v. Cisco docket to correct filings made by Cisco. Request No. 26: Admit that the District Clerk in the Eastern District of Texas, David Maland, had the authority to make a correction to the ESN v. Cisco docket. Request No. 27: Admit that prior to posting the October 18, 2007 post attached hereto as Exh. 2, Frenkel knew. that ESN's counsel had told the Eastern District of Texas court clerk's office that ESN had filed the ESN complaint on Oct. 16, 2007. Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 6 of 13 Request No. 28: Admit that prior to posting the October 18, 2007 post attached hereto as Exh. 3, Frenkel knew that ESN's counsel had told the Eastern District of Texas court clerk's office that ESN had filed the ESN complaint on Oct. 16, 2007. Request No. 29: Admit that prior to posting the October 18, 2007 post attached hereto as Exh. 2, Cisco knew that ESN's counsel had told the Eastern District of Texas court clerk's office that ESN had filed the ESN complaint on Oct. 16, 2007. Request No. 30: Admit that prior to posting the October 18, 2007 post attached hereto as Exh. 3, Cisco knew that ESN's counsel had told the Eastern District of Texas court clerk's office that ESN had filed the ESN complaint on Oct. 16, 2007. Request No. 31: Admit that prior to posting the October 18, 2007 post attached hereto as Exh. 2, Baker Botts knew that ESN's counsel had told the Eastern District of Texas court clerk's "-` office that ESN had filed the ESN complaint on Oct. 16, 2007. Houest No. 32: Admit that prior to posting the October 18, 2007, post attached. hereto as Exh. 3, Baker Botts knew that ESN's counsel had told the Eastern District of Texas court clerk's office that ESN had filed the ESN complaint on Oct. 16, 2007. Request No. 33: Admit that pursuant to Federal Rule of Civil Procedure 3, "a civil action is commenced by filing a complaint with the court." Request No. 34: Admit that at the time the ESN complaint was filed, Cisco did not have counsel of record for the ESN v. Cisco litigation. Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 7 of 13 Request No. 35: Admit that if ESN had sent Cisco a copy of the ESN complaint, the sending of the complaint would not have perfected service pursuant to Federal Rule of Civil Procedure 4. Request No. 36: Admit that if ESN had sent Cisco a copy of the ESN complaint, the sending of the complaint would not have perfected service pursuant to Eastern District of Texas's Local Rule CV-4. Request No. 37: Admit that Plaintiff John Ward Jr. is a private figure as that term is used in connection with First Amendment case law including Gertz v. Robert Welch, Inc., 418 U.S. 323, 325-32 (1974). Respectfully Submitted, Nicholas H. Patton (SBN 63035) Patton , Tidwell & Schroeder, LLP P.O. Box 5398 / 4605 Texas Boulevard Texarkana, Texas 75505-5398 Tel: (903) 792-7080 / Fax: (903) 792-8233 Patricia L. Peden LAW OFFICE OF PATRICIA L. PEDEN 61016th Street, Suite 400 Oakland , California 94612 Telephone : 510-268-8033 ATTORNEYS FOR PLAINTIFF Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 8 of 13 CERTIFICATE OF SERVICE This is to certify that on this 16'h day of January, 2009, a true and correct copy of the foregoing Plaintiffs First Set of Requests for Admissions to Defendant Cisco Systems, Inc. was served electronically and/or via U . S. First Class Mail upon: Richard E. Griffin Charles Babcock Crystal Parker JACKSON WALKER, LLP 1401 McKinney, Suite 1900 Houston , Texas 77010 Attorney for Defendant Cisco Systems, Inc. Nicholas H. Patton or Patent T Case 4:08-cv-04022-JLH Document 58-2 uocument i-z Mad@w v -040 HFB Filed 02/25/09 Page 9 of 13 r rreu Vol r - 4wv 1 cay%;0 -I- tpr . - "AG OLOGINOxt BIOS, Create e16g 1 Sig n in Patent Trod Tracker THURSDAY, OCTOBER 14. 2007 send &us ESN Convinces 6, x 6iik check ro After . . Documents To Try To Manufacture Subject Matter Jurfsdktfon Where Mores ExfsWd I Sot a caaL* of arwrrymaca ema b dtb mor& pokoq out dmt the dodot In ESN v. tsca (des Ta= docloA, not tits C nectlaut docket), W tw atteted. Om eme6 noWted Heat ESt'e tocat cowl ailed MV court Odc, and ooaevirmd Idma er to dtaa o tfta dociart to NfleCt an Other 16 Mk* Otte. firer than we aawagie, that's exactly d* WOW 1 S fib date. I dixwJmd, wtN t happWwd - tint docket was altm ed to MOCtan October 16 date trho ao+a Aaka was aitered Chem the date stauu ^ from Octiobe r IS to October i6.0* the EM Court CIA* changes. couid have nu& Abautiwe Xroa Tra aer Just la , Interested is pint comes. trot not interested a dw in pobtkIty Min W aM to _mx an t aram& Mkq 1 uxh , h. a 1[tws in"curacy. First, Ew of comm, ftm are a MsWi Errs AftittM *road site C9,,A 0 rmr %e ft eta Mg tha tiw cwflatnt had bma f11ad on October 19. se ax*A, t#wwo tons of proof that fama are October 15 . Neck oaneit Crouch array be l ^abpoeaeared as a w ESM You can't ale p hEdnry, and it's oatraseota tip ft East*m strict of TeM it aPpelrerttiy , WRdn* or uttw+tliP*, cvrttptrhrt yids a nOW aaWtV to try to mawA*M rQ wWe t matter Nrfsdktk$L of the ebce of OtWUV This fs yet anoOw cam in dro Samna RK dit of Fast Taoaar. ftW TroU'tlr+rekr Rnds awmoW p*ea P .. . . Z^ 371 pat .N... ..--.. ............ . (AA: don't be =ap&W it dw dackec duu%W back a= Ober mow. t4w to the Cwt got wind or tttbr, rnelerng this pmt complatefy I rcat^evant) PomW by Troll Tracker at 1;13 WLDNE DAY . OCTOBER 1-1, 2607 S a Q*M Rho= ^Irf,^rst^.1^?.It ^^ tlr^a^l' Psterit ,a Patent Fxsm krer ........ ---------.Jr..... 14 1 Trott Jim ns the Cki Sues Cfsro Too. Carty ...---.......i . '----------- -- - -------- - . ----..._._ I'm get" ray OW nom ftm Welt, I knew than day warted t oc+utmua raw. Acwrdiv to oenrtts, a comWy called ON mod. omw PaTY . .1% -.. .1Y0.. - . .. 1. 3 1 i 'f C4 d M*M&Aot, as only entity manafftd by tfte Pry finaacbA wenita And, yes, he's at Wwyer. He aid for s te*rat YAW COr #CWA. and was an aft W at Day, " & No1md. Cisco on barttalf of a Than-pmcd ft wMty. Now h!e''s not ksm wrtff Qr.wW 160% 1 la W,, mid ter, appws to be a sly Cbm for p ow nt infrlrtgemcrnt on October 15th. whAe the patent ad SubwxOw #4uw. feed con wW in :ut -bap:1/tro11tmcker b1cgW coml . r a*i%* ININNE MANm EXHI BIT l Of i 81x7 Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 10 of 13 Filed 031 2008 Page :9 000 4r Paten 4V0Ptv -040 ; -HFB Document 1-2 Slog Arddw I asked myx4f, can ESN do Wit t world ttrirr$ utat ttw court would IxA subjW matter jurfsdktloa , since ESN owned no Property r*t at the timer Of the tavvsuft, and the pas3a p of VRW :houtd not tors ghat. And, fits feet. Cwt: ... .. .. ... .... .... ....... ... rrw.r.. 2007 (S3) October (1n A declaratory judpret oP'igvaeiictity' with re"Ct to Flu's penditee paters( OwuC. ation haare had ro togs( ironnirlg The fact that the paint was about W issue and would hoe been voted before the inert readlsd the numit s of a,e case fs of no MWWt. AusticferbSity must be Aited as of the tkne of icing. not as of sorrre indeterminate f wm date or WK& wbUW qevm V Clark r2 After DOCUM&M ... Tenn Jerrrrnee ft Gi aj%m V= tae Early ' Monts a 1NKIL Ii ptl Ward rk DINO, and Thely^ Orfoet . (tat A tt* moor( W& Mach OW merits md du p flat wooed , We Owefars hold (hart a tweet is not adfldant to create a case or cortt wmmry urdess .it is made with regmd tD a patent that has towed befare a tanptsint Is ftlfld. Tlws, the d s&kt Geri Wrrectly tow that ((lure was no jus^efalple Cale or p(airrt: was Med.. GW raorrtrro"M in thkc case at Nu tbft the conter4s, howew.. that the its om of the 144 parttalt aired any Juisdtctf ag detect . We dhaRrrsG LAb r arwnts pay not create , Sdktk#% whm oww exfswd at the dme of fRing. Tascas Jeuetaa Barn tWn^. Term eat rr (' la A Loh at-2t EQdWA 1W and W to Eon 1- 10 i . WI . ' 100 And A Look at the EQU" torrent r dgftg - er p.. L Wasn't GO &WdkS Mptdab Cap. ir. Sk Corp, of Taxes , 40 F,3d 479. 453 and cfuoW" grr+fCed). ftd. Ctr. 1"6) (dam ag Even ttta RM-Thdaft SMUL N" Acid& rAWA Una h3 HOW LammLft-AO.W Red H&.. Patwk Trcu Sues Fhh of odd b*ffaattrp tlctft am appwred to pkek up on ibis. wary ye, ! : quicW. 4Cbw MW it dmUnUW judganeat aKt9ot^ (in Cmxnctlarat) ay, ttw clay after EW filed its nun cm mpW nL Shin CbcdO d stldt fa WOW= 4rwsr ft was fUd after the pateat 1sxx4 It Corr. U1 mss' S^^tdtktii.. , t Pbrh" re alb* g dWW fbtat Raw fats a maple of other bteapWoom tave pointed m t), ESN (rarpress *M by C dOW Ekm Mellndrgws Ha(d a mW local Cu et rk AW ttton MW T..kalWW Wes) - wr=W rag to dome fled amended cwrOalat Tigauicarrat orbs Wefy r odit at M. by the way, eavicept tdt thing date of the emptairC %rvrMy sW lOiXW { pert "Farmny Fbud ` smW bent. So 'rY, ESN. YWre an your way Wok Haven . Wondw how JotWW Imam ftmf xt:^ tnr seareyRt^zn . Ods to Patant y is Taus(( OW iim an in Ward i vag pW stet to BWlt.l^fS ^( C^ in rhea taws i fts *W Pasted by Troll Traelw at 7.W L Trol lSufffno Monts L_._.. Their CEients . ... . Ek War&, Ward & Oltvo, and i........ ^^ SOP"~ (z7) . ALW* 420) ....... .......................................... .i IN- A AY(11) I- lint (3) Sb d(W to surMg ft web , I started by dwd* out d knch i hW abotat Mob ft Ware befmtg befiW alt soma of tilt moz, n m I tmMufad ftw4 l a bunch of eft, xW I ended * not oaiy w" MN* ik Waco Pan tit VU= A(m), but also Wend & Ottv+o ( ebm t tawyert from Ne,r Yd+fcfNew JerWh as a tEmW behW a bextdt of IN. may (5) Sttemeter r httpa/tnallherblgart oom! 10/18nOO7 Case 4:08-cv-04022-JLH Document 58-2 . (.;ase O:UO- cv-vUU Oz1 . 1' Filed 02/25/09 Page 11 of 13 1 v,. vv. r.rwv. 0 uvuut u uvi 1L 1 %J%i-W C Patent Trull Tracker Page I of IU -------------^SEAWn aLocf I w.AO MAGI HOA B(Ov. Create B(og ( Sign In Patent `trot! Tracker THVaSDAY . OCTOaER it, 20o7 sww !1581! emaN Trourradw About ESN Convinces EM Court Clerk To Alter Document's To Try To Manufacture Subject Matter Jurbdkdon Where None Exfsted I oat a cm*W of ar+ayrma enu gs tltls vtomirK, pokdkq oat Out dw dodwt In ON v. Circa (ate Texas dadwt , not slue Cannectkut dadiat), had barn alwtd. One email wooded that ESNs btat cousa d taped tit! EM carat cleric. and colwkwad Mo/her to dwpa the ja *1 cat to nelled an October 16 fithg1l data, ratter than the October 15 tift date. I dw KW, and sure a+no O, that's eYSCtty %ftA happened . the dodoes was altered to MO &d an oceaber 16 Oft date mind the conW1*d was altered to dw dw !tips sate stsrup from accktor 15 to Oddser 16. Only the EDTX CoM Ctarlr w0d have nub Basch dmgft Me In Trot Tracker .hat a 4 vyer, Into v Iiatu t cases, but not 1ntavited In p&Midty Ytta ME ON Ob tt waft &k a ON vAVo.rrs d n a of omm, tw m are a caWM of flaws M thk conUdr- qi. FW4 ESN Mosque! ARM n signed the Ctvit Coyer 9not stoto i dot the nolnptat/t had aea, f1Med act Octob er 13. Sec^aescl, eherr:'s 4teu of !!tad on October 15, blest, Da+nnis Crotch play be pmaf the Yau CADIt dmnp hhtwy. and it's outr*Ww that t1w Eastern District of Texas Is n Vor aft, wtttb*y ar wwab*, t wills a Harr pill sift Zo try to J"4rA fattsXs 06Ject matter )x6dkWn. This b 1"d mother exampts of the abaiwt nature of tltisectins pU"t ca" in the Karam Repubik of East Toms. OLb.: don't be uffpd ed if the dottrel changes badt a s the higiferups In the Crxrt W Wind of tMe, nraking the post CMVAetaty Pasted by Tina Tracker at sioa TnouTho r A.aaa fbmeti.Cmr^h's.P.sLUOKAL" .. PssOr, ura^! 2T 1 Pa . nt t^ ra .. . .... . 1:11 s . iZs^alni^n^ S WIDNI DAV, OCTOSIR 17, 2007 Trott .kim^ t* Gun, Swam Cbw T6 , , ,* - , 'a' Wei, I ksarr slue day valid coast. ern gettMs my trot) noes #orar wm*SmA mw. Aoconcdns fin Nvin uF, a canVoW tatted ON sad asoo for patent fof1lrtgeenent an October 151h , wMk the pstent did not issue unw October 16th . 1 looked, and ESN appears to to a shots waft monapd by ale Pr Ahot and CM of VkgaAd*A, its wav !morellos websfte. And, Yost Wt a IavvW. He dRrb d for a federal judos in Carnindkut, and was an attorney at Day, &" t Howard. Now he's wing{ Cbm on beW of a rmpact d V entity. o u kkat" .IM.LPaten O iln w . SlG471ltofas PiYSsb Subscribe Now: feed kon Pima ftow P"* CbicMO. ^' tltf^tlo+s.tllai< . . In amitt GOO& =ACW%va; bq://tro11bu c+a.bl MoLc om/ Case 4:08-cv-04022-JLH Document 58-2 Filed 02/25/09 Page 12 of 13 0 patent T1 oU Tracker: SW COnvi xMS M=Comt GIak To Ater Docuumts To Try To IV(=aftt M SWJ,,t Mitt jUdxIjC& 4 W'hm Now axisW 'T`hursday , October 18, 2007 2 "ESN C onvinces^EDTX Court Clerk To Alter Documents To Try To Manufacture Subject Matter Jurisdiction Where None Existed 1 got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco (the Texas docket, not the Connecticut docket), had been altered. One email suggested that ESN's local counsel called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that's exactly what happened - the docket w altered to reflect an October 16 filing date and the complaint was alter to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes. Of course, there are a couple of flaws in this conspiracy. First, ESN counsel Eric Albritton signed the Civil Cover Sheet stating that the complaint had been filed on October 15. Second, there's tons of proof that ESN filed on October 15. Heck, Dennis Crouch may be subpoenaed as a witness! j EFF is helping bloggers protect their Constitutiona l right to anonymous speech You can't change history, and it's outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a "mistake," which l can't see how it could be, given that someone emailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket. Blogs i Read Case 4:08-cv-04022-JLH Document 58-2 { Filed 02/25/09 Page 13 of 13 Patw Troll Traakrr: ESN Couvbx= EDTX Court Cleric To Alter Docw =ls To Try To Maauflrch m 3uhjat Mattot 1vr( ktroa W we Noce Wiled '-[..2a _ZX"S.Sa:T^. + t: ,,^.t.r i .^.. -r.K'" c_ ^. '^" a.... ..,a:ole^3 .3R^wi.Jl.Y.'...^_^y^t./.A'S,1. .. i. . j' TCy-i I ZLV :, :!! ,r '^r'^wY..YT: t '1 do;i't be surprisicti if the dcceket charges ^;ack cocye (he higher-ups ^ . ___... _ .^....._..___ ^ _ .^_. __..___.._. he Court get wind of -this; making this post cart?pletety irretevant). 0 Benefft of Htnds*t $ Chkaao IP Utiuatfion Bloc EDIT: You can't change history, but you can change a informat ion emaited to you from a helpful ruder. ,tog entry based an fktawam JP Law oW Dennij Crotxh's Patentl" e Godfather of Patent ,m) ets. Cisco ' KCF . c Albrkton;, ^jS ^ m gicatt than in` ork ^163tes a com m e nts.* Post a +Co mrnerT a Patent Demand s a Patent P^pgQr ' ro 0 Patently Absurd Inventions Archive PAteBtty Sft[v ^ ~r^ 1P Peer Z lN d's 71 Patent Btoa }^t'0' '^t1er,C[.1ftOCtOOt.M^ ^tm sns ^ f.nt .Ma +N.. u -s in .t v n

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