Albritton v. Cisco Systems, Inc. et al

Filing 279

NOTICE by Cisco Systems, Inc. of Trial Subpoena for Michael Smith (Babcock, Charles)

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Albritton v. Cisco Systems, Inc. et al Doc. 279 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON v. CISCO SYSTEMS, INC. and RICK FRENKEL CISCO SYSTEMS, INC.'S NOTICE OF TRIAL SUBPOENA TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Please take notice that Defendant Cisco Systems, Inc. will serve the attached Subpoena pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure on Michael Smith. The Subpoena requires Michael Smith's appearance at trial on September 14, 2009 at 9:00 a.m. at the United States District Court, 211 W. Ferguson Street, Tyler, Texas 75702. Respectfully submitted, JACKSON WALKER L.L.P. C. A. NO. 6:08-CV-00089 JURY By: /s/ Charles L. Babcock Charles L. Babcock Federal Bar No.: 10982 Email: Crystal J. Parker Federal Bar No.: 621142 Email: 1401 McKinney Suite 1900 Houston, Texas 77010 (713) 752-4200 (713) 752-4221 --Fax ATTORNEYS FOR DEFENDANT CISCO SYSTEMS, INC. 5590196v. I CERTIFICATE OF SERVICE This is to certify that on this 25 th day of August, 2009, a true and correct copy of the foregoing was served via electronic mail upon: George L. McWilliams 406 Walnut P.O. Box 58 Texarkana, Texas 75504-0058 Attorney for Defendant Richard Frenkel Patricia L. Peden Law Offices of Patricia L. Peden 5901 Christie Avenue Suite 201 Emeryville, CA 94608 Attorney for Plaintiff Eric Albritton James A. Holmes 605 South Main Street, Suite 203 Henderson, Texas 75654 Attorney for Plaintiff Eric Albritton Nicholas H. Patton Patton, Tidwell & Schroeder, LLP 4605 Texas Boulevard P.O. Box 5398 Texarkana, Texas 75505-5398 Attorney for Plaintiff Eric Albritton /s/ Charles L. Babcock Charles L. Babcock 5590196v.1 AO 88 (Rev. 01/09) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action UNITED STATES DISTRICT COURT for the Eastern District of Texas Eric M. Albritton Plaintiff v. Cisco Systems, Inc. and Rick Frenkel Defendant Civil Action No. 6:08-cv-00089 SUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL IN A CIVIL ACTION To: Michael Smith, 713 South Washington Avenue, Marshall, Texas 75670 YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below to testify at a hearing or trial in this civil action. When you arrive, you must remain at the court until the judge or a court officer allows you to leave. if you are an organization that is not a party in this case, you must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an attachment: Place: United States District Court 211 W. Ferguson Street Tyler, Texas 75702 Courtroom No.: Date and Time: 09/14/2009 9:00 am You must also bring with you the following documents, electronically stored information, or objects (blank if not applicable): The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Fed. R. Civ. P. 45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are attached. Date: CLERK OF COURT OR Signature of Clerk or Deputy Clerk otern40r,,A_ . A to ey's signature (9,1701.,U:15 14" The name, address, e-mail, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are: Charles L. Babcock, Jackson Walker LLP 1401 McKinney Street, Suite 1900 713/752-4200 Houston, Texas 77010 Cisco Systems, Inc. AO 88 (Rev.01/09) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (page 2) Ci vi 1 Action No. 6:08-cv-00089 PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) This subpoena for (name af individual and title, tfany) was received by me on (date) El I personally served the subpoena on the individual at (place) on (date) ; Or I left the subpoena at the individual's residence or usual place of abode with (name) ,a person of suitable age and discretion who resides there, on (dato , and mailed a copy to the individual's last known address; or , who is 71 I served the subpoena on /i7(1171e of indiVilinal) , designated by law to accept service of process on behalf of (name of organization) on (date) 71 I returned the subpoena unexecuted because El Other (specifj;): ; or ; or Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of $ My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Serve,- 's address Additional information regarding attempted service, etc: AO 88 (Rev. 01/09) Subpoena to Appear and Testify at a Hearing or Trial in a Civ I Action (page 3) Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07) (c) Protecting a Person Subject to a Subpoena. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction which may include lost earnings and reasonable attorney's fees -- on a party or attorney who fails to comply. (d) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises-- or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's o ulcer from significant expense resulting from compliance. (B) Form jbr Producing Electronically Stored Information Not Specified. If a subpoena does not specify a fonn for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored InfOrmation Produced in Only One Form The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored InfOrmation. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents. communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information. Produced If information produced in response to a subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person -- except that, subject to Rule 45(c)(3)(13)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial. (C) Specrfying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

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