Ward v. Cisco Systems, Inc. et al

Filing 77

RESPONSE to Motion re 75 MOTION for an Order Directing Cisco to Provide Identified Documents to the Court for In Camera Review filed by Cisco Systems, Inc.. (Attachments: # 1 Exhibit A, Tabs 1-4, # 2 Exhibit A, Tabs 5-6, # 3 Exhibit A, Tabs 7-8, # 4 Exhibit A, Tab 9, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Order)(Babcock, Charles)

Ward v. Cisco Systems, Inc. et al

Doc. 77 Att. 6

Case 4:08-cv-04022-JLH Document 77-7

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EXHIBIT "D"

Dockets.Justia.com

Case 4:08-cv-04022-JLH Document 77-7
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Powell, Jillian 3/27/2009 10:38:00 PM

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

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TEXARKANA DIVISION
*

3 JOHN WARD, JR., Plaintiff, 4 VS.

CIVIL ACTION NO.:

CISCO SYSTEMS, INC. AND RICK * 5 FRENKEL, Defendants. 6 7 8 9 10 11 12 13 ANSWERS AND DEPOSITION OF JILLIAN POWELL, produced as a witness at the instance of the Plaintiff, taken in the ORAL VIDEOTAPED DEPOSITION OF JILLIAN POWELL * 08-4022

14 above-styled and -numbered cause on the 27th day of March, 15 16 17 18 19 20 21 22 23 24 25
Ward v. Cisco Unsigned

2009, A.D., beginning at 10:38 a.m., before Kelly Hassell, a Certified Shorthand Reporter in and for the State of Texas, in the offices of Baker Botts, L.L.P., located at 2001 Ross Avenue, Suite 1100, Dallas, Texas, in accordance with the Federal Rules of Civil Procedure and the agreement hereinafter set forth.

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APPEARANCES HONORABLE IRMA C. RAMIREZ (Via telephone.) Magistrate Judge 1100 Commerce Street Room 1567 Dallas, Texas 75242 [phone]

5 6 FOR THE PLAINTIFF: 7 MS. PATRICIA L. PEDEN Law Offices of Patricia L. Peden 8 5901 Christie Avenue Suite 201 9 Emeryville, California 94608 [phone] 10 [phone] (Fax) [e-mail] 11 MR. NICHOLAS H. PATTON 12 Patton, Tidwell & Schroeder, L.L.P. 4605 Texas Boulevard 13 Texarkana, Texas 75503 [phone] 14 [phone] (Fax) [e-mail] 15 16 FOR THE DEFENDANT CISCO SYSTEMS, INC.: 17 MR. CHARLES L. BABCOCK 18 MS. CRYSTAL J. PARKER Jackson Walker, L.L.P. 19 1401 McKinney Street Suite 1900 20 Houston, Texas 77010 [phone] 21 [phone] (Fax) [e-mail] 22 23 24 25
Ward v. Cisco Unsigned Page 2

Case 4:08-cv-04022-JLH Document 77-7 1 2 FOR THE DEPONENT: 3 MR. JOSEPH D. CHEAVENS 4 Baker Botts, L.L.P. 910 Louisiana Street 5 Houston, Texas 77002-4995 [phone] 6 [phone](Fax) [e-mail] 7 8 9 10 ALSO PRESENT: 11 MR. GUS PHILLIPS - Videographer 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Ward v. Cisco Unsigned

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APPEARANCES CONTINUED

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attendance and I think the communications at the meeting between me and the witness and Ms. Parker are privileged for that reason. MS. PEDEN: And, Your Honor, if I can just respond briefly. The facts in this case are Cisco was represented by Baker Botts working with Cisco originally when these -- when the events that gave rise to this lawsuit occurred, but Ms. Parker meeting with counsel this morning is long after that fact. That's in a separate lawsuit. It's in this defamation suit. And Jackson Walker is not representing -- I mean, Baker Botts is not representing Cisco in the defamation suit. They have

13 separate counsel, Jackson Walker. And to have defense 14 15 16 17 18 19 20 21 22 23 24 25 counsel in the prep with the witness before she comes in and gives testimony and then not let us ask what opposing counsel discussed with her I think is entirely improper. JUDGE RAMIREZ: Well, what about his allegation of a joint defense agreement? MS. PEDEN: Well, his allegation of a joint defense agreement, it's -- it's the first time it's been made in this case. It's an oral agreement. We've not seen anything in writing. And, in fact, when Cisco served or filed requests for admission in the Ward case, they refused to give us any information that was within Baker Botts's knowledge, claiming that Baker Botts was a third party.

Ward v. Cisco

Unsigned

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So -- and I have those requests for admissions with me if the Court would like me to fax them over. But it seems to me that when it comes to providing discovery, Baker Botts is a third party, but when they want to meet with opposing counsel to prep a witness, then they're within the zone of an attorney/client privilege. That was in a case that's not this case. JUDGE RAMIREZ: But does it arise out of her employment for the client that Jackson Walker represents? I mean, I know she was working for Baker Botts, but does it arise out of her employment for Baker Botts in the course of representing Jackson Walker's client? MS. PEDEN: It did. So what happened here

2 3 4 5 6 7 8 9 10 11 12 13

14 was in October of 2007, Baker Botts was working with 15 16 17 18 19 Jackson Walker's client, Cisco, to get some information about a case that was filed. Ms. Powell was the person who called the court clerk to undertake an investigation of the facts for Baker Botts. The Defendant in this case, Cisco Systems, has claimed as a defense that they are not liable

20 for defamation because there's no actual malice because 21 22 23 24 25 they relied on the advice of counsel that they received from Baker Botts. MR. BABCOCK: Judge, this is Chip Babcock, representing Cisco. That is absolutely not true, but not particularly relevant to this dispute because Mr. Cheavens

Ward v. Cisco

Unsigned

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and I do have a -- do have a joint defense agreement and it seems to me that it does cover this situation. MS. PEDEN: I think, Your Honor, it covers things that happened arising -- you know, the facts that happened in 2007 that gave rise to this lawsuit, but I don't know how they can take a joint defense agreement from 2007 and use it to meet and prep a witness where Baker Botts is now a third party. JUDGE RAMIREZ: Well, clearly there is a related interest here. I'm not -- let me ask this: Are both parties willing to abide by my ruling today? MR. BABCOCK: Speaking for Cisco, we certainly are, Your Honor. MR. CHEAVENS: Yes. For Baker Botts, yes,

15 Your Honor. 16 17 18 19 20 21 22 23 24 25 MS. PEDEN: For Plaintiff, Your Honor, we're willing to abide by your ruling for the deposition today, but Plaintiff intends to file a motion when the Court is -where this case is pending arguing for an implied or an at-issue waiver in this case. So to the extent that the Court's order doesn't implicate that at all, then we're willing to abide by it. JUDGE RAMIREZ: Well, I'm not clear as to the -- I mean, that's a qualified agreement. I'm either going to be giving you an opinion that's -- I mean, a

Ward v. Cisco

Unsigned

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ruling that's binding or it becomes an advisory ruling, which I'm not going to do. So that's -- this is a privilege issue, which I think is appropriate for briefing, but if you want me to rule on it at this time, I will, but it needs to be binding. I'm not going to give you an advisory opinion that you're going to go appeal to another court without any briefing in front of me. MS. PEDEN: I understand, Your Honor. And unfortunately, we can't agree to a binding -JUDGE RAMIREZ: Okay. Well, then I suggest that you continue with the deposition and then brief this case later rather than stopping for purposes of briefing, but that's certainly your call. MS. PEDEN: Okay. Thank you, Your Honor. JUDGE RAMIREZ: Thank you. MR. BABCOCK: Thank you, Judge. MR. CHEAVENS: Thank you, Your Honor. THE VIDEOGRAPHER: We are back on the record. The time is 11:15 a.m. Q (BY MS. PEDEN) Ms. Powell, thank you for your patience. Other than the meeting that you had this morning with Mr. Cheavens and Ms. Parker, have you had any other communications, telephone conversations, with anybody

25 about your testimony today?

Ward v. Cisco

Unsigned

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