ESN LLC v. Cisco Systems, Inc. et al

Filing 153

NOTICE by ESN LLC re 146 SEALED MOTION Plaintiff ESN, LLC's Motion to Impose Sanctions on Cisco for Discovery Misconduct Notice of Correction to ESN's Motion for Sanctions (Ward, Thomas)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION ESN, LLC, Plaintiff, v. CISCO SYSTEMS, INC., and CISCO-LINKSYS, LLC, Defendants. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 5:08-CV-20 JURY TRIAL DEMANDED

NOTICE OF CORRECTION TO ESN'S MOTION FOR SANCTIONS ESN files this Notice of Correction to case law cited in ESN's motion for sanctions filed on October 5, 2009. ESN cited Clearvalue, Inc. v. Pearl River Polymers, Inc., 242 F.R.D. 362 (E.D. Tex. 2007) as an example of the district court using its "inherent power" to sanction discovery misconduct. ESN inadvertently overlooked the Federal Circuit decision from March of this year reversing that case in part. Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009). While the substantive law set forth by the Supreme Court in Chambers v. NASCO, 501 U.S. 32 (1991) remains the same (the district court may exercise its "inherent power" to sanction a broad range of litigation abuse), the Federal Circuit in Clearvalue determined that the specific facts before the court did not warrant sanctions pursuant to the court's "inherent power" in that specific case. The court did affirm the finding of sanctionable conduct and the award of attorneys' fees pursuant to Fed. R. Civ. P. 26 and 37, but reversed the sanction of striking the offending party's pleadings and awarding additional attorneys' fees pursuant to the court's "inherent power" under the facts existing in that particular case. ESN maintains that Cisco's

conduct does justify sanctions pursuant to Fed. R. Civ. P. 26 and 37 and, due to the broad range of Cisco's litigation misconduct, the court's "inherent power" including the striking of Cisco's defenses. If ever there was a case justifying this sanction, the present case is a template for its application. Respectfully submitted, FOR PLAINTIFF, ESN, LLC:

Dated: October 14, 2009

/s/ T. John Ward, Jr. George P. McAndrews Thomas J. Wimbiscus Peter J. McAndrews Gerald C. Willis Paul W. McAndrews Heather A. Bjella Matthew N. Allison McAndrews, Held & Malloy, Ltd. 500 W. Madison Street, 34th Floor Chicago, Illinois 60661 Telephone [phone] Facsimile [phone] [e-mail] Eric M. Albritton Lead Attorney Texas State Bar No. 00790215 ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Telephone [phone] Facsimile [phone] [e-mail] T. John Ward Jr. Texas State Bar No. 00794818 Ward & Smith Law Firm 111 W. Tyler St. Longview, Texas 75601 Telephone [phone] Facsimile [phone] [e-mail]

CERTIFICATE OF SERVICE I hereby certify that on the date this proof of service is signed below, the foregoing was served: PLAINTIFF ESN, LLC'S NOTICE OF CORRECTION by email to: Charles K. Verhoeven Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California St., 22nd Floor San Francisco, CA 94111 [e-mail] Victoria F. Maroulis Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Dr., Suite 560 Redwood Shores, CA 94065 [e-mail] Michael E. Jones Potter Minton 110 N. College Suite 500 Tyler, TX 75702 [e-mail]

Date: October 14, 2009 /s/ T. John Ward, Jr. T. John Ward, Jr.