Albritton v. Cisco Systems, Inc. et al
Filing
264
RESPONSE to Motion re 262 MOTION for Reconsideration re 259 Order on Motion in Limine MOTION for Reconsideration re 259 Order on Motion in Limine filed by Cisco Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Babcock, Charles)
EXHIBIT C
Smith, Michael Charles
11/2412008
Page 1
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON,
PLAINTIFF, vs. ) } CIVIL ACTION
NO.: C.A. NO. CISCO SYSTEMS, INC., RICK ) 6:08-CV-00089 } FRENKEL, MALLUN YEN & JOHN NOH, ) } DEFENDANTS.
ORAL AND VIDEOTAPED DEPOSITION OF MICHAEL SMITH November 24th, 2008
ORAL AND VIDEOTAPED DEPOSITION OF MICHAEL SMITH, produced as a witness at the instance of the DEFENDANT, and duly sworn, was taken in the above-styled and -numbered cause on the 24th day of November, 2008, from 1:15 p.m. to 4:08 p.m., before Regenia Plant, CSR in and for the State of Texas, reported by machine shorthand, at the law offices of Siebman, Reynolds, Burg, Phillips & Smith, LLP, 713 South Washington Avenue, Marshall, Texas, pursuant to the Federal Rules of Civil Procedure.
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Smith, Michael Charles
11/2412008
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reporter please swear in the witness. MICHAEL SMITH, after having been first duly sworn, testified as follows: EXAMINATION BY MR. BABCOCK: Q. A. Q. Would you state your name, sir. Michael Charles Smith. Mr. Smith, let me hand you Exhibit 135, which
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is the notice of deposition today, which came with a subpoena; is that correct? A. Q. Yes. And after a couple of false starts, we have
agreed that today will be the day we'll take your deposition, correct? A. Q. Correct. And your counsel has -- Mr. Siebman has
provided me some documents. I have marked them as -as a bulk exhibit as 159 and I want to tender- them to you and make sure that you agree that Exhibit 159 consists of all the documents that you have produced pursuant to the subpoena. A. Q. That's correct, it does. A11 right. Thanks. If you'll- hand them back
to me, I'll probab_ty talk about specific documents i_n
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Smith, Michael Charles
11/24/2008
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you've known him, five or ten years, period? A. I -- I would really be guessing because I
don't really know which of the cases I've been in, he was actually involved in. Q. Okay. Fair enough. During the time that you
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have known him, have you determined whether he has a reputation, be it good, bad, indifferent? A. Q. Yes. All right. And do you -- are you aware that
you've been designated by Mr. Albritton as a witness on his reputation? A. Q. No, I wasn't aware of that. Okay. Well, Mr. Holmes can correct me if I'm
wrong, but I think Mr. Albritton has done that. So my question to you is, what is his reputation. A. I'm not aware of anything negative about his
reputation in the -- in the legal community. Q. Okay. Do you -- do you know whether he has
-- I appreciate your saying you're not aware of anything negative. Are you -- do you think that he
has a good reputation? A. Generally, yes. I'm not aware of anything
that would cause me to say that he doesn't. Q. Okay. Has his reputation changed in the past
five or ten years, how ever long you've known him?
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Smith, Michael Charles
11/24/2008
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A. Q. A. Q.
No. Okay. Has he ever referred you a case?
Not that I know of. Okay. Have you ever referred him a case that
you know of? A. I may have referred a -- I don't think so. I
might have sent a -- a call on a criminal case to him one time or -- or maybe -- there was one time in a civil case where someone was asking me to be local counsel and I think it was a civil rights case or something like that and he was one of the people that I -- that I referred them to. Q. All right. Is there any reason why you
wouldn't-refer an appropriate case to him? A. Q. No. Okay. You are aware to some degree, I take
it, that Mr. Albritton has sued Cisco and a fellow by the name of Rick Frenkel for defamation. A. Q. Yes. All right. Have you talked to Mr. Albritton
about this case? A. Q. A. Q. Not about this case, no. Okay. Let -- let me qualify that. Sure.
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Smith , Michael Charles
1112412008
Page 135
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IN THE. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON, } )
)
PLAINTIFF, vs. } } ) } CIVIL ACTION
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DEFENDANTS.
NO.: C.A. NO. CISCO SYSTEMS, INC., RICK ) 6:08-CV-00089 FRENKEL, MALLUN YEN & ) ) JOHN NOH,
)
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I. REGENIA PLANT, Certified Shorthand Reporter in REPORTER'S CERTIFICATION DEPOSITION OF MICHAEL SMITH NOVEMBER 24, 2008
and for the State of Texas, hereby certify to the following: That the witness, MICHAEL SMITH, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on to the witness or to the attorney for the witness for examination, signature and return
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( t o me by
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Smith, Michael Charles
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That the mount of time used by each party at the deposition is as follows: MR. BABCOCK..... 01 HOUR(S):53 MINUTE(S) MR. McWILLIAMS....... 00 HOUR(S):29 MINUTE(S) MR. HOLMES........ 00 HOUR(S):29 MINUTE(S) MR. SIEBMAN........ 00 HOUR(S):00 MINUTE(S) That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: FOR THE PLAINTIFF:
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Mr. James A. Holmes THE LAW OFFICE OF JAMES A. HOLMES 605 South Main, Suite 203 Henderson, Texas 75654 (903) 657-2800 (903) 657-2855(fax)
FOR THE DEFENDANT CISCO SYSTEMS, INC.:
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FOR THE DEFENDANT RICHARD FRENKEL: Mr. Charles L. Babcock JACKSON WALKER, L. L. P. 1401 McKinney Suite 1900 Houston, Texas 77010 (713) 752-4200 (713) 752-4221 (fax)
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Mr. George L. McWilliams
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LAW OFFICE OF GEORGE L. McWILLIAMS, P.C. 406 Walnut P.O. BOX 58 Texarkana, AR-TX 75504-0058 (870) 772-2055 (870) 773-2967 (fax)
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Michael Smith November 24, 2008
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FOR MR. MICHAEL SMITH: Mr. Clyde H. Siebman SIEBMAN, REYNOLDS, BURG, PHILLIPS & SMITH Federal Courthouse Square 300 N. Travis Street Sherman, Texas 75090 (903) 870-0070
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(903) 870-0066 (fax) That $ is the deposition officer's
charges to the Defendant Cisco Systems, Inc., for preparing the original deposition transcript and any copies of exhibits; I further certify that I am neither counsel for,
related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or
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otherwise interested in the outcome of the action. Certified to by me this 25th day of November, 2008.
,
4Ce ,., r.) ,,
Regenia Plant, Texas CSR 7819 Expiration Date: 12/31/08 West Court Reporting Services 221 Main Street, Suite 1250 San Francisco, CA 94105
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DeRieux, Elizabeth
11/512008
Page I
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON, Plaintiff, * * * *
VS.
* CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH, Defendants. * *
C.A. NO. 6:08-CV-00089
ORAL DEPOSITION OF ELIZABETH DeRIEUX NOVEMBER 5TH, 2008 *******************************************************
ORAL DEPOSITION OF ELIZABETH DeRIEUX, produced as a witness at the instance of the DEFENDANT, CISCO, and duly sworn, was taken in the above-styled and numbered cause on the 5th of November, 2008, from 11:42 a.m. to 11:54 a.m., before Tammy Staggs, CSR in and for the State of Texas, reported by machine shorthand, at the Law Offices of Capshaw & DeRieux, 1127 Judson Road, Suite 220, Longview, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto.
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DeRieux, Elizabeth
1115/2008
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BY MR. BABCOCK: Q. A. Q. A. Q. A. Q.
MR. CAPSHAW: Elizabeth DeRieux.
Calvin Capshaw representing
THE VIDEOGRAPHER:
Will the court
reporter please swear in the witness. ELIZABETH DeRIEUX, having been first duly sworn, testified as follows: EXAMINATION
Would you state your name, please. Elizabeth DeRieux. And how are you employed, Ms. DeRieux? I'm am attorney with Capshaw & DeRieux. And that is a law partnership, I take it? It is. And is this handsome gentleman to your right
your partner, Mr. Capshaw? A. Q. A. It is. Could you tell me your educational background? I have a JD from the University of Houston
College of Law, 1984, and an undergraduate degree from Lamar University in English 1980. Q. Albritton? A. Q. I do. And when did you first meet Mr. Albritton? Do you know the plaintiff in this case Eric M.
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DeRieux, Elizabeth
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Mr. Albritton in a business professional sense? A. Q. Not that I can think of. Okay. Do you have a personal relationship
with Mr. Albritton? Are you social friends, that type of thing? A. I consider him my friend. We -- our families He's never been to my home. I've
don't socialize.
never been to his home. But, yes, I consider him my friend. Q. Okay. You I'm sure are aware since you're
sitting here that Mr. Albritton has designated you as a witness or disclosed you as a witness in this case. And his disclosure says that you have knowledge of the professional reputation and integrity of the plaintiff Mr. Albritton. A. Q. I do. All right. Would you tell me what knowledge Do you have such knowledge?
you have on that subject? A. Because I have worked for him and against him,
I would say that he has a good reputation, at least in my firm and in -- among the lawyers that I know and work with here in Longview. He's very, very bright, good lawyer, ethical, hard working. And I'm trying not to
circle back around and say very, very bright because that's what I keep thinking. I think that that's the
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DeRieux, Elizabeth
11/5/2008
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quality that I think of first when I think of Eric. Q. Okay. Would you refer a case to him -- would
you refer a client to him? A. Q. A. have. Q. Okay. Has his reputation in your mind changed I would. Okay. Have you ever?
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I can't think of one right off, but I might
from the time that you first got to know him professionally to today, which is September 5th, 2008 [sic] ? A. Q. A. lawyer. Yes. Okay. And how has it changed?
When I first got to know him, he was a baby Perhaps not even -- I don't believe he was even
licensed at the time I first met him. And so I thought at the time that he was very, very bright, and I didn't know a lot about his personal integrity or his practice. And I think since that time, I have gotten to know him better. And he began his own practice, so his own
practice grew and with that his reputation grew. Q. Okay. And when you say "his reputation grew,"
did his -- did his reputation increase or was it better over time or worse over time or somewhere in the middle? When you say "his reputation grew,," what do you mean by
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DeRieux, Elizabeth
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that? A. Q. A. Q. A. Q. His reputation is better. Better today than it was -Than it was when I met him. Okay. Yes, I believe that's right. Okay. MR. BABCOCK: you. That's all I have. Thank
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ldwl^l
And thanks for accommodating our schedule here, we Mr. McWilliams may have some questions
appreciate it. now.
EXAMINATION BY MR. McWILLIAMS: Q. Just a couple, Ms. DeRieux. Have you been
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asked to come here today or serve as a witness in this case to render any opinions other than the reputational opinions that you have about Mr. Albritton? MR. PATTON: A.
Q.
Objection, form.
No.
(BY MR. McWILLIAMS) Let me ask you about the
Inns of Court that you mentioned. What is the membership of the Inns of Court organization that you
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belong to?
A. people?
I'm not sure what you're asking me. How many
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DeRieux, Elizabeth
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IN THE UNITED STATES DISTRICT COURT
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I.
EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON, Plaintiff,
*
* * *
vs.
CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH,
* C.A. NO. 6:08-CV-00089 *
* Defendants.
REPORTER'S CERTIFICATION DEPOSITION OF ELIZABETH DeRIEUX NOVEMBER 5TH, 2008
TAMMY LEA STAGGS, Certified Shorthand Reporter in
and for the State of Texas, hereby certify to the following: That the witness, ELIZABETH DeRIEUX, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on to the witness or to the attorney for the witness for examination, signature and return to
1 me by
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DeRieux, Elizabeth
11/5!2008
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That the amount of time used by each party at the deposition is as follows: Mr. Nick Patton - (0:02) Mr. Charles L. Babcock - (0:08) Mr. George L. McWilliams - (0:02) Mr. Sidney Calvin Capshaw - (0:00)
That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: FOR THE PLAINTIFF: Nick Patton, Esq. FOR THE DEFENDANT, CISCO SYSTEMS, INC.: Charles L. Babcock, Esq. Crystal Parker FOR THE DEFENDANT, RICHARD FRENKEL: George L. McWilliams, Esq. FOR THE WITNESS: Sidney Calvin Capshaw, Esq.
That $
is the deposition officer's charges
to the Defendant, Cisco Systems, for preparing the original deposition transcript and any copies of exhibits;
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I further certify that I am neither counsel for,
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dated to,
nor employed by any of the parties or
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at.deys in the action in which this proceeding was taker, d further that I am not financially or
rwisEterested in the outcome of the action.
me this 7th of November, 2008.
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Tammy Lea a ggs, C R 7496 J pirat .ion Date : 12/31/2009 fm No . Dallas: 69 Houston: HG.itigation Services 2501 ak Lawn Avenue i to 6
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Carroll, Otis
111512008
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON, Plaintiff, * * *
v s.
CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH,
* C.A. NO.
*
6:08-CV-00089
* Defendants.
******************************************************** ORAL DEPOSITION OF OTIS CARROLL NOVEMBER 5TH, 2008
ORAL DEPOSITION OF OTIS CARROLL, produced as a witness at the instance of the CLAIMANT, and duly sworn, was taken in the above-styled and numbered cause on the 5th of November, 2008, from 9:25 a.m. to 9:36 a.m., before Tammy Staggs, CSR in and for the State of Texas, reported by machine shorthand, at the Law Offices of Ireland, Carroll and Kelley, 6101 Broadway, Suite 500, Tyler, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto.
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Carroll, Otis
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representing Rick Frenkel. THE VIDEOGRAPHER: reporter please swear the witness. OTIS CARROLL, having been first duly sworn, testified as follows: EXAMINATION BY MR. BABCOCK: Q. A. Q. A. Q. firm? A. I do. A firm called Ireland, Carroll, and Would you state your name, sir. Otis Carroll. Mr. Carroll, how are you employed? I'm a lawyer. And are you -- do you practice with a law Will the court
Kelley in Tyler, Texas. Q. That was my next question. Mr. Carroll, you have been designated or disclosed as a witness in the case that you're giving your deposition in today by the plaintiff Eric Albritton. And it says, in its entirety, (as read):
Mr. Carroll has knowledge of the professional reputation and integrity of the plaintiff. Do you know anything about that? A. Q. I do. And what do you know?
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Carron,
Otis
111512008
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A.
I have my opinion about Eric Albritton's
professional reputation and integrity, and I understood that's what he was disclosing me to talk to. Q. That's what -- that's what it looks like.
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What is your opinion of Mr. Albritton's professional reputation and -- and integrity? A. I think it's impeccable. I think he's got a
reputation as being a fine -- to me and probably to Nick Patton, he's still a young trial lawyer, but... Q. A. You can throw me in on that one too. And to you Chip, I forgot. But he's a fine And in my -- my mind he's got a great And that's -- kind of sums it up. And -- and have you changed your
young lawyer. reputation. Q.
All right.
opinion as to his reputation at any time between when you first knew him as a lawyer and today, which is November 5th, 2008, the day after the great election? A. improved. morning. Well, I think, you know, my opinion of him has I met -- I was trying to think of this this I think I met him initially when he was a law And I can't remember when it
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clerk to Judge Justice.
was, but I'm guessing it was at least 15, maybe even 20 years ago. And then I knew him when he went to work for
Scrappy Holmes and then when he -- he left and I've had cases with him and I've had cases against him and my --
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to answer your question, my opinion of his abilities and his reputation has grown. I think he's -- you know, he's somebody I'm glad to count as a colleague and a friend. Q. So his reputation in your mind is -MR. PATTON: Q. (BY MR. BABCOCK) Objection, leading. His reputation in your mind
is better today than it might have been a year ago or two years ago or five years ago? A. Q. Well, to me it is. Yeah, okay. Will you tell me whether
you're -- and I think you've already said this, but will you tell me whether his reputation in your eyes has improved over the last five years? A. I mean, it has to me. And, you know, because
he and I are doing the same kind of work and we weren't
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before.
He was doing more criminal trial practice. And
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he got into the commercial practice and the IP practice, which a lot of us around here do, and I got to see more of him. So, you know, I guess that's the basis for my opinion as much as anything. Q. A. Okay. Have you ever referred him a case?
Yeah, sure have. The first -- first patent
case he ever had. Q. When was that?
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION
ERIC M. ALBRITTON,
Plaintiff,
vs.
CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH, Defendants.
* C.A. NO. 6:08-CV-00089
REPORTER'S CERTIFICATION DEPOSITION OF OTIS CARROLL NOVEMBER 5TH, 2008
I.
TAMMY LEA STAGGS, Certified Shorthand Reporter in
and for the State of Texas, hereby certify to the following: That the witness, OTIS CARROLL, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness;
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That the deposition transcript was submitted on to the witness or to the attorney for the witness for examination, signature and return to
me by
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Carroll, Otis
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That the amount of time used by each party at the deposition is as follows: Mr. Nick Patton - (0:02) Mr. Charles L. Babcock - (0:07) Mr. George L. McWilliams - (0:02)
That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record:
FOR THE PLAINTIFF: Nick Patton, Esq.
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FOR THE DEFENDANT, CISCO SYSTEMS, INC.: Charles L. Babcock, Esq. Crystal Parker FOR THE DEFENDANT, RICHARD FRENKEL: George L. McWilliams, Esq.
That $
is the deposition officer's charges
to the Defendant, Cisco Systems, for preparing the original deposition transcript and any copies of exhibits;
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I further certify that I am neither counsel for, r.lated to, nor employed by any of the parties or at orneys in the action in which this proceeding was 1 ta.kerY; ar.nd further that I am not financially or
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atierwfse Interested in the outcome of the action.
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.Certified-, to by me this 7th of November, 2008.
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Tammy Lea aggs , ,"." xpiration Date:
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C R 7496 12/31/2009
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