Albritton v. Cisco Systems, Inc. et al

Filing 169

MOTION to Quash Trial Subpoenas to Non Party Witnesses by Bart Showalter, Kevin Meek, Douglas Kubehl, Kurt Pankratz, Jillian Powell. (Attachments: # 1 Declaration of Joseph D. Cheavens in Support of Motion to Quash Trial Subpoenas, # 2 Exhibits 1-4 to Motion to Quash Trial Subpoenas)(Cheavens, Joseph) (Additional attachment(s) added on 2/12/2009: # 3 Text of Proposed Order) (mjc, ).

Albritton v. Cisco Systems, Inc. et al

Doc. 169

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION
ERIC M. ALBRITTON
V.
§ § § § §

CASE NO. 6:08CV89

CISCO SYSTEMS, INC., ET AL

MOTION TO QUASH TRIAL SUBPOENAS TO NON PARTY WITNESSES BART SHOWALTER, KEVIN MEEK, DOUGLAS KUBEHL, KURT PANKRTZ, AND JILLIAN POWELL
TO THE HONORABLE DISTRICT JUDGE:
Bar Showalter ("Showalter"), Kevin Meek ("Meek"), Douglas Kubehl
("Kubehl"), Kur Panatz ("Panatz"), and Jilian Powell ("Powell") respectfully move to quash

the trial subpoenas issued which when served would require them in this case to attend trial
beginning March 2, 2009, in Tyler, Texas (Exhibits 1-4 attached), and as grounds would show
the following:!
1. Showalter, Meek, Kubehl, and Panatz are partners in the firm of Baker

Botts L.L.P. ("Baker Botts") with offices in Dallas, Texas. Powell is a legal assistant employed
by that firm in Dallas. Subpoenas have been issued requiring their attendance at the trial of this

case on March 2, 2009, in Tyler, 98 miles from the firm's Dallas office. Showalter is the firm-

wide head of Baker Botts' IP Deparment consisting of 145 lawyers in offices in Texas,
Washington, New York, and Californa. Meek is the deputy department chair. Kubehl and
Panatz are partners in that deparment. Powell is a legal assistant assigned to the deparment.

Subpoenas have been served on Showalter, Kubehl, Pankatz, and Powell. The process server has been unable to serve Meek because he has been spending substantial time at the Baker Botts Austin office during the last
two months.

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2. These witnesses were previously noticed and subpoenaed for oral

depositions in this case. Mutually convenient times for the depositions were agreed between
counsel. After taking the depositions of Kubehl and Panatz at the Baker Botts Dallas office,

and after Baker Botts had produced pursuant to plaintiffs request numerous emails as to which
Cisco and plaintiff entered into a limited privilege waiver, counsel for the plaintiff advised at the
end of the Panatz deposition on November 24, 2008, that he did not wish to pursue taking the
depositions of Showalter, Meek and Powell. This occured after Meek had rearanged his travel
schedule in order to be available the afternoon of

November 24.

3. Powell is curently on maternity leave from the firm, at home taking care

of a new born baby born prematurely last month. She was served at her home address in Wylie,
Texas. She is not due to retur from maternity leave until the week of

March 23. Requiring her

to come to Tyler for trial would impose a manifest and highly unfair hardship. Who would care
for her new born tiny baby while she drives to Tyler, sits in cour, and drives back to her home in

Wylie over 100 miles from the courhouse?
4. If counsel for the plaintiff did not need the oral depositions of Powell,

Showalter, and Meek when they were available for deposition at a convenient time and place
(their offices in Dallas), he should not need their testimony at triaL. Having voluntarily
withdrawn his deposition notices, he should not now be permitted to subpoena them for trial at
an inconvenient time and place.
5. Requiring the attendance at trial of these key parners would be

burdensome on Baker Botts and the four parners. The few hundred dollars of witness fees and

mileage costs tendered with the subpoenas would not begin to compensate for the lost time of
these parners.

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6. Upon being served with these subpoenas, undersigned counsel for the firm
contacted plaintiffs counsel seeking to reach agreement to avoid the fiing of this motion and the

burden on the firm and the witnesses of complying with the subpoena. Inquiry was made as to
what evidence was sought from these witnesses, and no explanation given. Undersigned

suggested that counsel for the plaintiff and counsel for Cisco should attempt to work out a

stipulation of facts as to any testimony from these witnesses, but that offer was rebuffed.
Counsel for the plaintiff refused even to try to work out a stipulation. Undersigned requested an

explanation of why counsel for the plaintiff decided not to take the depositions of Showalter,

Meek, and Powell when all were present at the firm's offices in Dallas but now they are
somehow needed for triaL. No explanation was offered. The dialogue between undersigned

counsel and counsel for the plaintiff is reflected in email exchanges durng the weeks of
February 2 and 9 and wil be provided if

the Court requests documentation. This email dialogue

complies with the "meet and confer" requirements of the rules.
WHEREFORE, PREMISES CONSIDERED, Showalter, Meek, Kubehl, Panatz,

and Powell move as follows:
1. That all of the subpoenas issued for them to be in attendance at trial be

quashed; or
2. In the alternative, that the subpoenas issued for Showalter, Meek, and

Powell be quashed because counsel for the plaintiff previously withdrew his notice and
subpoenas for their oral depositions; and that the subpoenas issued for Kubehl and Panatz be

quashed because, with leave of cour, their oral deposition testimony can be used without the
burden of their attending trial; or

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3. In the alternative, that the subpoena issued for Powell be quashed because

of the personal hardship of requiring her to attend trial in Tyler; or
4. In the alternative, that plaintiff compensate Baker Botts for the time of any

witnesses from the firm who are required to attend trial at the standard biling rates for such
witnesses; and
5. For such other relief as the Cour in fairness deems appropriate in this

situation.
Respectfully submitted,

BAKER BOTTS L.L.P.

By lsi Joseph D. Cheavens Joseph D. Cheavens State Bar No. 04170000 910 Louisiana Houston, Texas 77002
713.229.1250 (telephone)

713.229.1522 (facsimile)
j oseph.cheavens(fbakerbotts.com

ATTORNEYS FOR BART SHOWALTER, KEVIN MEEK, DOUGLAS KUBEHL, KURT PANKRATZ, AND JILLIAN POWELL

CERTIFICATE OF CONFERENCE
Undersigned counsel has conferred with counsel for the plaintiff

to seek his agreement to

withdraw these subpoenas, and no agreement was reached.

lsi Joseph D. Cheavens Joseph D. Cheavens

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been fied pursuant to the electronic filing the United States District Cour for the Eastern District of Texas on this, the_ day of Februar, 2009, which provides for service on counsel of record in accordance with the electronic fiing protocols in place.
requirements of

lsi Joseph D. Cheavens Joseph D. Cheavens

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