Ward v. Cisco Systems, Inc. et al

Filing 89

ORDER granting in part and denying in part 61 Motion to Compel; granting as to Motion to Compel and Court orders that Cisco shall, within ten (10) days from the date of this Order, produce to Ward in response to the interrogatories at issue all documents, emails and written communications written by or received by Frenkel prior to October 19, 2007; declining, at this time, to take up any request for 61 Motion for Sanctions. Signed by Honorable Jimm Larry Hendren on August 24, 2009. (cap)

Ward v. Cisco Systems, Inc. et al

Doc. 89

Case 4:08-cv-04022-JLH Document 89

Filed 08/24/09 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JOHN WARD, JR. v. CISCO SYSTEMS, INC. ORDER Now on this 24th day of August, 2009, comes on for Civil No. 08-4022 DEFENDANT PLAINTIFF

consideration Plaintiff Ward's Motion to Compel Compliance with the Court's March 30, 2009 Order and For Sanctions (document #61) and the responses and replies thereto. The Court, being well and

sufficiently advised, finds and orders as follows: 1. In the instant matter, the plaintiff asserts a claim for

defamation against Cisco Systems, Inc. (hereinafter "Cisco"). The claim for defamation stems from publications on an internet blog ­ www.trolltracker.blogspot.com. The blog was published by

Richard Frenkel,1 who was then employed by Cisco. allegedly accused the plaintiff, an attorney, of

The blog "criminal

conduct, unethical conduct, and conduct unbefitting of an officer of the Court." 2. On March 30, 2009, the Court ruled on Plaintiff Ward's

Motion to Compel Responses to Interrogatory Nos. 1-9 (document #57). The Court's Order of March 30, 2009 (document #60) granted

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See Frenkel's Declaration of May 11, 2009 (document 63-2).

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Ward's motion and ordered Cisco to respond to the interrogatories, as directed within fifteen (15) days. 3. The instant motion to compel asserts that, despite the

Court's Order of March 30, 2009, Cisco has not provided full and complete responses to Ward's Interrogatory Nos. 5-6. Instead,

Ward states, Cisco "granted itself the right to redo its original responses . . . [and] provided an Amended Answer that omitted the key (and responsive) fact that Frenkel relied on information that he received from counsel when he wrote his accusations about Ward." Ward asserts that Cisco revised its interrogatory

responses to avoid providing answers that include "allegedly privileged information." Ward also argues that Cisco's actions merit sanctions. 4. Cisco responds that the fact it "rewrote" its answers to

the interrogatories shows compliance with, not disobedience of, the Court's order. Cisco argues that Frenkel did not rely on Cisco

information from counsel when writing his blog posts.

further argues that it has not asserted a "good faith defense" and asks the Court to reconsider or clarify its ruling with respect to its waiver of attorney client privilege. 5. Following various motions, pleadings, and telephone

conference calls, the Court ordered Cisco to produce, for in camera review, all documents which could be responsive to

plaintiff's interrogatories number 5 & 6, and specifically, all -2-

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documents listed in plaintiff's submission log previously provided to the Court. 6. 7. The Court has now reviewed those in camera documents. The Court notes that in its March 30, 2009 Order it

found Cisco waived the attorney client privilege as its answers in discovery assert that Frenkel relied on communications with

counsel when formulating the blog posts.

Although Cisco, in its

revised answers to Ward's interrogatories now asserts that Frenkel did not rely on those communications with counsel, the Court's ruling remains the same. See Burress v. Union Pacific R. Co.,

2007 WL 60935 (E.D. Ark. 2007)2 8. Considering the Court's finding of an at issue waiver

with respect to attorney client communications, the Court believes it appropriate to permit Ward to discover any and all

communications shown by the submissions to have been received by him on or before he made the last of the blog postings at issue. (Based upon Frenkel's affidavit and other submissions, the Court believes the blog postings occurred on October 17 and 18, 2007.) Whether, in posting the blogs, Frenkel relied upon any such communications from counsel (as first indicated by Cisco's initial response) or not (as now indicated by Cisco's amended response)

"To waive the privilege, a party must do more than deny allegations, he must affirmatively raise new factual or legal issues that involve privileged communications. But, the issue need not be raised as an affirmative defense or by the party's pleadings." Burress, 2007 WL 60935 (E.D. Ark. 2007)(emphasis added).

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may very well be an issue to be decided at trial.

Accordingly,

the Court will Order that Cisco produce to Ward ­ in response to the interrogatories at issue ­ all documents, emails and written

communications written by or received by Frenkel prior to October 19, 2007. Cisco will be directed to produce the ordered material

to Ward within ten (10) days from the date of this Order.3 9. The Court declines, at this time, to take up any request

for sanctions. IT IS, THEREFORE, ORDERED that Plaintiff Ward's Motion to Compel Compliance with the Court's March 30, 2009 Order and For Sanctions (document #61) should be, and hereby is, granted in part as follows: IT IS ORDERED that Cisco shall, within ten (10) days from the date of this Order, produce to Ward ­ in response to the

interrogatories at issue ­ all documents, emails and written communications written by or received by Frenkel prior to

October 19, 2007. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

The Court will not set forth each specific document this Order encompasses. The Court trusts that, working from the in camera submission log which identifies the documents ultimately produced for the Court's review, the parties can accurately identify the documents to be produced.

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