Albritton v. Cisco Systems, Inc. et al

Filing 285

Opposed MOTION to Quash Trial Subpoena by Michael Smith. (Attachments: # 1 Text of Proposed Order)(Phillips, Lawrence)

Albritton v. Cisco Systems, Inc. et al

Doc. 285

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON § § Plaintiff, § § vs. § § § CISCO SYSTEMS, INC. and RICK FRENKEL § § Defendants. §

Case No. 6:08-cv-89

MOTION TO QUASH TRIAL SUBPOENA Michael Smith, by and through his counsel of record below, requests the Court to Quash the Trial subpoena served on him in the above styled cause and in support thereof would show the Court as follows: A. INTRODUCTION 1. On or about August 25, 2009 Michael Smith received a subpoena to appear and testify

beginning on September 14, 2009 at 9:00 a.m. at the Unites States District Court located at 211 W. Ferguson Street, Tyler, Texas. The subpoena was issued at the instance of the Defendants by their counsel of record Charles L. Babcock and copy of which is attached hereto as Exhibit A. Defendants oppose the relief requested in this motion. 2. Michael Smith is not a party to the proceeding. He has previously been deposed by Counsel

for Defendants in this matter. Mr. Smith is an attorney and currently has a trial setting beginning at 9:00 a.m. on September 14, 2009 at the United States District Court in Marshall, Texas. That case is Crane Co. and Dixie-Narco Inc v. Sandenvendo America, Inc., et. al., Cause Number 2-07-cv-42 and Mr. Smith represents the Defendant. Additionally, Mr. Smith has another trial setting beginning

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on September 21, 2009 in the 71st Judicial District of Harrison County, Texas. That case is Norit Americas, Inc. v. ADA-ES. Inc., et. al., Cause Number 08-0673 and jury selection is set for September 16, 2009. B. ARGUMENT 3. The instant subpoena subjects Michael Smith and his clients to an undue burden and the

undersigned therefore requests that the Court quash the instant subpoena pursuant to Federal Rule of Civil Procedure 45 (c)(3)(A)(iv). Mr. Smith is not a party to this lawsuit and has no first-hand knowledge about the underlying facts of the lawsuit. Mr. Smith's attendance on behalf of his clients in the above described matters is necessary and it would impose an undue burden for him and his clients not to be present. As stated above, Mr. Smith has previously sat for and given a deposition in this matter and his testimony is therefore available to the Defendants for use at trial. C. CONCLUSION 4. For these reasons, Michael Smith asks the Court to grant his motion to quash the

Defendants' subpoena.

Respectfully submitted, SIEBMAN, REYNOLDS, BURG, PHILLIPS & SMITH, LLP Federal Courthouse Square 300 N. Travis Sherman, TX 75090 [phone] [phone] Telefax By: /s/ Lawrence A. Phillips Lawrence A. Phillips #15937755

CERTIFICATE OF SERVICE The undersigned certifies that prior to this motion, counsel for Witness Michael Smith communicated with Defendants' counsel of record, Charles L. Babcock, regarding the above Motion. Defendants' counsel of record stated they are opposed to the relief requested in this Motion.

/s/ Lawrence A. Phillips Lawrence A. Phillips

CERTIFICATE OF SERVICE The undersigned certifies that on this 3rd day of September, 2009, all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document through the Court=s CM/ECF system under Local Rule CV-5(a)(3). Any other counsel of record will be served by a facsimile transmission and/or first class mail.

/s/ Lawrence A. Phillips Lawrence A. Phillips