Trial to Begin in Suit Against Cisco, Patent Troll Tracker Blogger

Trial to Begin in Suit Against Cisco, Patent Troll Tracker Blogger

Brenda Sapino Jeffreys

Texas Lawyer

September 14, 2009

Legal bloggers writing about intellectual property matters are sure to take note of a trial set to start Monday in Tyler, Texas. It pits East Texas intellectual property litigator Eric Albritton [ http://www.emafirm.com/profiles/staff/albritton_eric.html ] against Silicon Valley tech company Cisco Systems Inc.

Albritton alleges in his June 16, 2008, federal court complaint that Richard Frenkel, a one-time in-house lawyer at Cisco, defamed him in anonymous postings [ http://www.law.com/jsp/article.jsp?id=1205491400004 ] on Frenkel's Patent Troll Tracker blog [ http://trolltracker.blogspot.com/ ] in October 2007.

In March 2008, after Frenkel outed himself as the Patent Troll Tracker blogger, Albritton filed the defamation suit against Cisco, Frenkel, another Cisco in-house lawyer and a corporate spokesman.

Albritton, of the Albritton Law Firm in Longview, Texas, claims in his original complaint that Frenkel anonymously posted false allegations on the Internet asserting that Albritton "conspired" with a clerk for the U.S. District Court for the Eastern District of Texas to "alter documents to try to manufacture subject matter jurisdiction where none existed" in a patent suit.

On Oct. 18, 2007, Frenkel alleged on his Patent Troll Tracker blog that the filing date for that patent suit, ESN v. Cisco, was changed from Oct. 15, 2007, to Oct. 16, 2007, after ESN's local counsel "called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date." The filing date is significant, Frenkel alleged in the blog, because the ESN patent that is the basis of the suit was not issued until Oct. 16. Albritton alleges in his complaint that Frenkel's statements were "false and defamatory."

Frenkel identified Albritton and T. John Ward Jr. of Ward & Smith Law Firm in Longview as local counsel.

In his original complaint in Eric Albritton v. Cisco Systems Inc., et al., filed 18 months ago, Albritton brought defamation and negligence causes of action against the defendants. But in February, U.S. District Judge Richard A. Schell of the Eastern District granted a summary judgment in the defense's favor on the negligence and gross negligence causes of action. He also declined to extend liability to defendants Mallun Yen, vice president of intellectual property for Cisco, and John Noh, Cisco's former senior public relations manager, so they are no longer defendants in Albritton.

In their June 2008 answers filed in federal court, the two remaining defendants -- Cisco and Frenkel -- deny the allegations and allege Frenkel's Patent Troll Tracker blog postings on Oct. 17 and 18 that mentioned Albritton were not defamatory and not intended to injure Albritton. Cisco and Frenkel also each allege the statements were "true or substantially true."

Jury selection in Albritton begins today in Tyler before Schell. Charles "Chip" Babcock, a partner in Jackson Walker in Houston who represents Cisco in the suit, expects the trial to last about two weeks.

Albritton is represented by James Holmes, a solo practitioner in Henderson, and Nicholas Patton, a partner in Patton, Tidwell & Schroeder of Texarkana.

In addition to Babcock, Cisco is represented by Jackson Walker partner David Moran of Dallas and associate Crystal Parker of Houston. George McWilliams, a solo practitioner in Texarkana, is defending Frenkel, now of counsel at Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif.

SAY WHAT?

The events that led to the defamation suit began in October 2007, when Albritton and Ward filed a patent infringement suit against Cisco for client ESN LLC. The suit was filed in U.S. District Court for the Eastern District of Texas, which attracts a huge number of the nation's IP suits because of its so-called "rocket docket."

Frenkel alleged in his Oct. 18, 2007, blog posting that ESN's "local counsel" called the "Eastern District court clerk" and "convinced him/her" to alter the filing date of the suit. He identified Albritton and Ward as the local counsel in the suit.

"This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas," Frenkel wrote on Patent Troll Tracker, a blog popular with IP lawyers and others interested in reports on companies that allegedly buy patents simply to bring infringement suits.

After Frenkel outed himself in February 2008 as the blogger, Albritton and Ward each filed suits against Frenkel and Cisco in state district courts in Texas, but Cisco removed Albritton to federal court. Ward nonsuited John Ward Jr. v. Cisco Systems Inc., et al. and refiled it in the U.S. District Court for the Western District of Arkansas. In August 2008, at Ward's request, U.S. District Judge Jimm Larry Hendren dismissed Frenkel from the suit. Ward is set for trial in February 2010.

The suits have attracted a lot of attention among Texas lawyers and members of patent bar, among others, because of the popularity of the Patent Troll Tracker blog and because Ward is a son of U.S. District Judge T. John Ward of the Eastern District of Texas. Currently, the Patent Troll Tracker blog is "open to invited readers only."

Albritton alleges in Albritton v. Cisco that Frenkel's assertions on the blog are untrue and defamatory and that Frenkel wrote the blog during the course and scope of his employment at Cisco.

In the February memorandum opinion and order granting parts of motions for summary judgment filed by the plaintiff and the defendants, Schell noted that the defendants may "defeat" Albritton's defamation claim by proving the truth of the allegedly defamatory statements.

The judge wrote that the Patent Troll Tracker blog posts are "capable of both innocent hyperbole and defamatory insinuation" so it will be up to a jury to decide if they are defamatory per se.

Albritton seeks unspecified actual and punitive damages in the suit. Schell noted in his summary judgment order that the defendants argue that as a matter of law, Albritton has suffered no compensable damages. But the judge wrote that Albritton is entitled to damages if the jury finds the blog posts defamatory per se.

EASTERN DISTRICT RULES

While Frenkel and Cisco allege the Patent Troll Tracker blog postings were true or substantially true, Albritton's defamation suit contends otherwise.

Patton, Albritton's attorney, did not return three telephone calls seeking comment, but in an earlier interview with Texas Lawyer, he asserted that Frenkel's comments in the blog were not "protected speech" under First Amendment law, and nothing about the filing of ESN v. Cisco was out of the ordinary.

"Anybody that knows the rules in the Eastern District knows that what happened here is exactly how business is conducted in the Eastern District," Patton said in March 2008. In the Eastern District, Patton said, the clerk's office will assign a case number and a judge to a suit 24 hours before it is filed when a lawyer calls the clerk's office with the request and sends in a cover sheet for a civil suit.

On Oct. 15, 2007, someone from Albritton's office "sent in the civil cover sheet after they had called the clerk's office, requesting a number. That patent was to issue on the next day, the 16th, so they filed at 12:01 on Oct. 16. There was a mistake by the clerk's office as to dates that was corrected by the clerk to show what had happened," Patton said in March 2008. "Nobody made any attempt to alter a government record."

David Maland, the Eastern District clerk, wrote in an e-mail to Texas Lawyer on March 14, 2008, that an employee of Albritton's office did set up a shell file on Oct. 15, 2007, and electronically filed the complaint in ESN v. Cisco at 12:02 a.m. on Oct. 16, but the court file initially showed an Oct. 15, 2007, filing date because the employee had logged onto the court's system on Oct. 15. Maland wrote that a clerk in his office did change the filing date to Oct. 16 at the request of an employee in Albritton's office, but in hindsight Maland wrote that his office should have asked Albritton to file a motion to correct the date.

Maland is on Albritton's witness list and the defense witness list.

Maland's attorney, Thomas Gibson, an Assistant U.S. Attorney in the Eastern District, refers comment to a spokeswoman for the Eastern District who did not call before press time.

The infringement suit that started the dispute is still pending in U.S. District Judge David Folsom's court in the Eastern District of Texas. By agreement of the parties, ESN v. Cisco was dismissed without prejudice in November 2007, and ESN refiled the suit in January 2008. In the suit, ESN alleges Cisco is infringing on a patent it holds related to switching systems for communications over a broadband network. The suit is set for trial in April 2010.

Babcock, Cisco's defense attorney, declines to comment on the legal issues or evidence in the defamation suit. A spokeswoman for Cisco says, "We are unable to comment on pending litigation, but we look forward to trying this case before a judge and jury."

McWilliams did not return three telephone calls seeking comment. Frenkel did not return a telephone message left at his Wilson Sonsini office.

Plaintiff Albritton refers comment to his lawyers, and Holmes refers comment to Patton. Patton did not return several messages left at his office. Ward also refers comment to Patton, who represents him in Ward v. Cisco.