Ward v. Cisco Systems, Inc. et al

Filing 88

NOTICE OF FILING OFFICIAL TRANSCRIPT of Telephone Conference held on July 29, 2009, before Judge Jimm Larry Hendren. Court Reporter/Transcriber: Theresa Sawyer, Telephone number 479-444-7876. Tape Number: 09-66-TS. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before or after the deadline for Release of Transcript Restriction. After that date it, or a redacted transcript, may be obtained through PACER. A Notice of Intent to Request Redaction of the Transcript MUST be filed within 7 calendar days of the filing of the transcript and served manually on the court reporter/transcriber. Redaction Request due 9/11/2009. Redacted Transcript Deadline set for 9/21/2009. Release of Transcript Restriction set for 11/19/2009. (cap)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

JOHN WARD, JR. Plaintiff VS. CISCO SYSTEMS, INC. Defendant

CASE NO. 08-4022 JULY 29, 2009 12:20 P.M .

TELEPHONE CONFERENCE BEFORE THE HONORABLE JIMM LARRY HENDREN U. S. DISTRICT JUDGE FAYETTEVILLE, ARKANSAS

APPEARANCES BY TELEPHONE MR. NICK PATTON Patton, Tidwell, & Schroeder P. O. Box 5398 Texarkana, TX 75505 MS. PATRICIA PEDEN Attorney at Law 610 16 th Street, Suite 400 Oakland, CA 94612 MR. GEOFFREY CULBERTSON Attorney at Law P. O. Box 5398 Texarkana, TX 75505 MR. CHARLES L. BABCOCK MR. RICHARD E. GRIFFIN MS. CRYSTAL J. PARKER Jackson & Walker 1401 McKinney, Suite 1900 Houston, TX 77010 Prepared by: THERESA SAWYER Certified Court Reporter 35 East Mountain Street, Fifth Floor Fayetteville, AR 72701 (479-444-7876) (Proceedings recorded by Stenomask; transcript produced from dictation) FOR THE PLAINTIFF

FOR THE PLAINTIFF

FOR THE PLAINTIFF

FOR THE DEFENDANT

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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 THE COURT:

JULY 29, 2009

I apologize for this problem here.

We had

a little difficulty getting folks together, but I had wanted to have a conference call in Ward versus Cisco, and I understand that now at this moment, we have Nick Patton, Patricia Peden, and Geoff Culberton on the line for Ward. Patton? MR. PATTON: THE COURT: That is correct, Judge. All right. And I understand that for the Is that correct, Mr.

defendant Cisco, we have on the line Mr. Chip Babcock, and I'm wondering if Crystal Parker and Richard Griffin are also there. Mr. Babcock, are you there? MR. BABCOCK: I'm here, and Ms. Parker and Mr. Griffin

are sitting right next to me. THE COURT: Okay. Well, good afternoon. Thank you

for making yourself available on such short notice, but I called because I missed you folks. in awhile. Seems like I haven't talked to you But I have

And, of course, I'm joking about that.

received a letter from Judge Bryant under date of July the 28th of 2009, copied to, I believe, all of you folks, indicating there's some effort underway to combine Ward versus Cisco with Albritton versus Cisco for a joint mediation in front of Judge Faulkner on August 28, and the indications in that letter are that that is agreeable, and was agreed to by both sides in Ward

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versus Cisco. Now, as you know, we have been -- and by the way, I have with me Courtney Gilbert, who is my lawyer helping me with this case. But you were kind enough, pursuant to my order of

July the 8th that was filed July the 9th, Document Number 81, Cisco did submit the requested documents for in camera review, and we have got our hip boots on and trying to wade through it because it's rather extensive. As you know, too, we have a trial date that is

approaching, I believe it's August the 31st, and that's problematical for a number of reasons, not the least of which, I suppose, is what might happen with this mediation. So given, if

my understanding of that is correct, it raises a question in my mind. I recall from previous discussions that the status, shall we put it, if I may use it -- describe it that way, the status of discovery is not the same, to my understanding, in Albritton versus Cisco as in Ward versus Cisco. One of the

reasons, I suppose, is because we have not completed this in camera review. And so I guess my question is, what effect does

this decision, joint decision by these parties to go this mediation, combining the two cases for that purpose, what affect does that have on the need for us to expedite our review, or is our review necessary. It would seem to me that in order for a combined

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mediation to be useful and thorough, that the cases ought to be on substantially the same footing with respect to discovery. Now, I probably don't understand this as well as you do, so I've called to just inquire about that. Obviously, if the mediation

can go forward without us having to complete this work, because it is a rather arduous task and one we're trying to look at carefully, I would prefer that. do. We do have other things we can

So I wanted to get your thoughts on that. Let me inquire, first of all, Mr. Patton for the

plaintiff, do I have an understanding of what is going to happen? Is that correct, on August the 28th, that the parties

have agreed to go to mediation, with both cases being under discussion at that mediation on August 28? MR. PATTON: Judge, we discussed that, talked about

doing it together, and then last week a situation has arisen. As you know, Judge, Ms. Peden and I have two clients, and it's difficult for me to talk about this, Judge, without revealing attorney-client privileged matters, so I'll try to stay as far away from that as I can. But I think it is safe to say that the

situation as it exists at this minute is that the cases should not be mediated together, that it would be detrimental, we feel, to the chances of the cases settling. And what has happened with the emails back and forth, Judge, is things have kind of been crossing each other, Bill with Crystal, justifiably assuming that we were going under the

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old schedule.

Judge Faulkner apparently did not know that there

had been a change in thought processes, maybe is the way to put it. So what we would like is to go ahead and mediate before

Judge Bryant whenever you feel that, Judge, it's okay. You are correct that the Albritton case basically is -- I would say is completely through discovery, and I'd say very, very close, is it not, Patty, that all the motions have been attended to. We're nowhere close to that in the Ward case,

Judge, and I -- you had mentioned, made mention of the fact of them being on the same tracks. on the same tracks. Ward is not. THE COURT: Okay. Well, that, as you know, is a Bryant's letter said What has been done, they are not

Albritton basically is ready for trial;

little different than what Bryant said.

that that was going to be done, and that's why I made this call. It seemed a little curious, given the different postures of the cases, and I wanted to check that out first of all. Well, let me turn to Mr. Babcock, or whoever, on the defense side. Mr. Babcock, what say you about it? Well, the first I heard that there was in mediating them both together was

MR. BABCOCK: a change of position

sometime late yesterday.

Be that as it may, you know, we've

already had one mediation of both cases before Judge Faulkner many, many months ago that was not successful. And the only issues I raised for the Court are

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practical ones, and that is that I'm not sure that Cisco would settle one of the cases without settling the other, and the second practical problem is, they are, of course, in California, and we've been having a lot of trouble getting all of the lawyers, Ms. Peden, who herself is from California, Mr. Patton, myself, Mr. Griffin, George McWilliams, who is in the Albritton case on behalf of Mr. Frenkel, and Judge Faulkner together in one place at one time. And we've been talking for over six

months -- over six weeks -- about a date for this mediation, and finally got August 28th agreed to in both cases. You know,

obviously, we -- nobody can make -- force anybody to mediate. And so if Mr. Ward, for whatever reasons that Nick can't disclose, doesn't want to mediate, then with the schedule we've agreed to, then I'm not sure there's a whole lot we can do about it other than, you know, we're doubling the cost, and in my view, we're making it less likely the cases will settle rather than more likely. THE COURT: Well, again, I know nothing about the

notion about the combined mediation other than what was provided to me via Judge Bryant's letter. He had said, looking at his

letter, that he had been attempting to set the matter for a settlement conference and had had difficulties getting dates that were agreeable to all concerned. And then he said he had

been contacted by Judge Faulkner, and Judge Faulkner said that apparently the parties had made this agreement to combine them

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and mediate together, and that's really all I know. As I mentioned at the outset of this conversation, when I saw that, it raised an immediate question in my mind as to what effect, if any, would that have on our efforts to review these in camera matters, and also to address our trial date, which I agree, from what I can see here and what we see in these papers, that this case it not going to be ready to try on August the 31st. mention. Do you agree with that, Mr. Babcock? If it doesn't So I think that's probably something I need to

settle, do you really -- do you think it's going to be ready to go to trial on the 31st of August? MR. BABCOCK: Judge, we're obviously going to abide by

whatever you do, but I think Mr. Patton and I agreed several weeks ago that the schedule should be modified, and I believe we filed a motion to that -THE COURT: Yeah, there's a Motion to Continue, but, I

you know, it's just almost painful for me to consider that.

never thought I'd hear myself suggesting to you that perhaps your Motion to Continuance is good and ought to be granted. MR. BABCOCK: Yeah. Our position, I think, is, number

one, I'm willing to abide by the agreement Mr. Patton and I made, moving the dates. Having said that, my view is a little

different than Mr. Patton's, and that is that both the Albritton and the Ward case involved the same publications. Complete

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depositions were taken in the Albritton case. have them made applicable to the Ward case. been accepted.

I have offered to That offer has not

And, frankly, I could try the case on the 31st if But I'm willing -- whatever everybody

the Court wanted me to.

wants to do is fine with me. THE COURT: MR. PATTON: Mr. Patton, any further comments? No, Judge, other than the fact that we've

been discussing back and forth for months now depositions and dates, and we currently are doing that. In fact, there have

been some email responses in just the last few days. THE COURT: All right. Well, it seems to me that when

it's made clear to Judge Bryant that apparently there is no agreement to go jointly before Judge Faulkner, he's probably going to want to be back in touch with you to see about going ahead and scheduling a settlement conference in this case alone. Now, am I to understand from what you've said, Mr. Babcock, that if in fact there is no agreement to mediate them jointly before Judge Faulkner, that you nonetheless will go forward with the mediation in the Albritton case as scheduled on the 28th? MR. BABCOCK: Yes, Judge. We've been ordered by Judge

Shell to do that, so we will certainly go forward in the Albritton case. THE COURT: And I assume, as I just said, that Judge

-- I don't see why Judge Bryant would cease his efforts to set

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up a settlement conference, but I'll leave that to him.

But I

do think that he needs to be apprized by one or both of you that the situation is not as he thought it was, and that it's not going to occur. So I think you've answered my question. I

think what we will need to do then is go ahead with our in camera review here. the continuance. I will take another look at the motion for

It's complicated by other matters that we have So it's quite likely, I would say,

on tap here in our chambers.

that we will agree that this case is going to have to be continued for the reason that it doesn't appear like to me it's going to be ready, and -CONFERENCE conference operator. OPERATOR: Excuse me, this is the I

I apologize for the interruption.

understand that some assistance has been re-asked of me. you like me to call a participant? THE COURT: No, ma'am, we have everybody.

Would

We finally

got everybody together, and we're just about to conclude our business. But thank you very much for checking back. CONFERENCE OPERATOR: Thank you very much. And,

again, I apologize for the interruption. THE COURT: Yes, ma'am. Thank you.

CONFERENCE OPERATOR: THE COURT:

Your welcome.

Okay, so I think that's where we are. I think there are

We'll go ahead and deal with these matters.

some other motions, a Motion to Dismiss and other things that

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we'll try to get to as quickly as we can. else that we can deal with? Anything from the plaintiff? MR. PATTON: THE COURT: MR BABCOCK: THE COURT:

All right, anything

If not, I thank you very much. Anything else?

Not a thing, Judge. From the defendant? No, Your Honor. All right. We're good.

Thank you very much.

(WHEREIN THE TELEPHONE CONFERENCE WAS CONCLUDED.)

COURT REPORTER'S CERTIFICATE

I, THERESA SAWYER, do hereby certify that the foregoing is a true and correct transcript from the record of proceedings in the above-entitled matter.

__/S/ Theresa Sawyer______________ THERESA SAWYER CERTIFIED COURT REPORTER, #235 TRANSCRIBER

AUGUST 21, 2009 (Date)