Albritton v. Cisco Systems, Inc. et al

Filing 301

MOTION Exclude Testimony of Sam Baxter by Cisco Systems, Inc., Richard Frenkel. (Attachments: # 1 Exhibit A)(Babcock, Charles) (Additional attachment(s) added on 9/17/2009: # 2 Text of Proposed Order) (mjc, ).

Albritton v. Cisco Systems, Inc. et al

Doc. 301

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON, Plaintiff v. CISCO SYSTEMS, INC. and RICHARD FRENKEL Defendant DEFENDANTS' MOTION TO EXCLUDE TESTIMONY OF SAM BAXTER TO THE HONORABLE COURT: Defendants Cisco Systems, Inc. ("Cisco") and Richard Frenkel ("Frenkel") (collectively, "Defendants") hereby file this Motion to Exclude Testimony of Sam Baxter, and respectfully show the Court: The Court should exclude witnesses who were not disclosed as to any topic that is permissible under the Court's prior rulings. Rule 26(a)(1) requires initial disclosure of "the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims..." Initial disclosures under Rule 26 were due on June 2, 2008. Plaintiff disclosed Sam Baxter as a witness that had only "lcnowledge of the h;.1,1+ 14. y 2009, this Court professional reputation and integrity of the Plaintiff." granted Defendants' Motion in Limine No. 1 that Plaintiff may not introduce evidence of reputational damages. (Order, Document No. 258; Motion in Limine, Document No. 191 No. 6:08cv00089 JURY

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Dockets.Justia.com

at pp. 1-3). Because Baxter was designated only as a witness on Plaintiff s "reputation and integrity," which is no longer at issue, Baxter should be excluded pursuant to this Court's May 8, 2009 Order. Baxter should also not be permitted to testify regarding topics that were not disclosed. See FED. R. EVID. 37 (c)(1); Terrance v. Pointe Coupee Parish Police Jury, 177 Fed. Appx. 457, 459 (5 th Cir. 2006) (holding that the lower court properly excluded testimony of witness because the party had failed to disclose the witness until several months before trial); Antoinee-Tubbs v. Local 513, Air Transport Div., Transport Workers of America, AFL-CIO, 190 F.3d 537 (5 th Cir. 1999) (holding that the lower court properly excluded affidavits from witnesses as summary judgment evidence where the witnesses had not been disclosed.). The Advisory Committee Notes to Rule 37(c)(1) provide that this exclusion is an "automatic sanction." Defendants have not had the opportunity to conduct discovery of Baxter on any topic other than Plaintiff s reputation, which this Court has excluded, and therefore Baxter should not be permitted to testify.

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Respectfully submitted, L.L P.

JACKSON WALKER

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&ICOCte By: 07.0.1,/fl Charles L. Babcock Federal Bar No.: 10982 Email: [e-mail] Crystal J. Parker Federal Bar No.: 621142 Email: [e-mail] 1401 McKinney, Suite 1900 Houston, Texas 77010 [phone] [phone] --Fax
ATTORNEYS FOR DEFENDANT CISCO SYSTEMS, INC.
GEORGE LLIAMS, P.C.

By: \/..% n George L. McWilliams Texas Bar No: 13877000 GEORGE L. MCWILLIAMS, P.C. 406 Walnut P.O. Box 58 Texarkana, Texas 75504-0058 [phone] [phone]--Fax Email: [e-mail] ATTORNEY FOR DEFENDANT RICK FRENKEL

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CERTIFICATE OF SERVICE This is to certify that on this 16 th day of September, 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

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Charles L. Babcock

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