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).

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

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JOHN WARD, JR.

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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

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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

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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: [phone] / Fax: [phone] Patricia L. Peden LAW OFFICE OF PATRICIA L. PEDEN 61016th Street, Suite 400 Oakland , California 94612 Telephone : [phone] 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

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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!

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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
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Filed 02/25/09 Page 13 of 13

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