Part Two: The life, death, and promised re-birth of the Patent Troll Tracker blog. In Rick Frenkel's own words.
This is a transcription of Frenkel's five-page declaration dated April 4, 2008, N.D. California case file 08-80075-JF.
Note his promise to return to blogging at No. 9.
(picture at left updated 5/14/08)
Declaration of Richard Frenkel in Support of Richard Frenkel's and Cisco Systems, Inc.'s Motions to Quash Subpoena and Motions for Protective Order
I, RICHARD FRENKEL, declare and state as follows:
1. I am an attorney and member of the California Bar since 1999, and am licensed to practice in California.
2. I have worked at Cisco since February 2006 as an attoney in the Intellectual Property Legal Department. As of April 2007, my full title became Director, Intellectual Property—Consumer & Emerging Technologies. Among my responsibilities since April 2007 has been oversight of certain patent litigation and other disputes involving the company, and management of employees doing the same.
3. On May 9, 2007, I began a news-oriented website called “Patent Troll Tracker.” My stated goal, in my first post, was “to educate the world on how many patent cases are out there that are filed by trolls.” I continued that education by providing regular news articles about cases filed by non-practicing entities colloquially known as “patent trolls.”
4. The Patent Troll Tracker website continued until late February 2008. During these nine months, I published over 180 articles about different facets of patent litigation and “patent trolls.”
5. Patent Troll Tracker was published regularly. For example, I had a monthly installment where I would review the patent litigation statistics from the previous month, and report on litigation filed by non-practicing entities. I call this by “Troll Call.” Besides the monthly feature, I would try to have an assortment of stories, about two or three per week, focusing on different interesting cases and the debate on patent reform issues.
6. Until earlier this year, I published the Patent Troll Tracker website anonymously. In September 2007, Chicago attorney Raymond P. Niro (“Niro”) contacted me, seeking to find out my true identity. Niro is well known for writing articles and interviews describing himself as the best protector of “patent trolls,” such as a July 20, 2006 article in IP Law & Business featuring Niro, titled “Meet the Original Patent Troll.” Starting with his mid-September 2007 contact to me, Niro began giving interviews publicly decrying my website, and wrote me several emails. I responded to some of his correspondence in my own website.
7. In late November 2007, I learned that Niro was offering a $5,000 information for reward leading to my identity. Later, he increased that award to $10,000, and then to $15,000. When news stories on other websites and magazines began discussing Niro’s reward, someone evidently posted a comment on the website Slashdot, which Niro claimed to be a death threat against him and his family.
8. I voluntarily disclosed my identity on my website on February 23, 2008. My understanding is that Niro claims he did not have to pay the reward.
9. After I revealed myself to be an attorney employed by Cisco, my employer and I were sued in Texas for defamation relating to an article I posted on October 18, 2007. As a result of the defamation lawsuit and related investigations, and since the Patent Troll Tracker website is a website that is published solely by me, I decided to temporarily suspend the website. I intend to resume the publication in the near future, after taking time to attend to some of the legal matters that need my immediate attention. When I resume the publication, I intend to continue to regularly report on patent reform issues as well as patent litigation filed across the country, focusing primarily on news about patent litigation filed by people or entities that are not making any products or providing any services related to the patents. At that time, the website will again be open to the public.
10. Niro was a guest on an internet radio program (“Lawyer 2 Lawyer”) on March 27, 2008, and repeated his criticisms of my website announcing that “I am going to be taking his deposition in a case shortly.” He also made reference to the Arkansas and Texas litigation where I am a defendant along with Cisco, stating that “I know Johnny Ward (the Arkansas Plaintiff) very well and I know Eric [Albritton] (the Texas plaintiff) too.” He then commented on the litigation in a way unfavorable to me.
11. On the morning of Saturday, March 29, as I was leaving the house, I found a subpoena on my doorstep.
12. The subpoena at issue comes from a case pending in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 078-C-5081, Illinois Computer Research, LLC v. Google, Inc. A true and correct copy of the subpoena is attached hereto as Exhibit C-1. My understanding is that the subpoena was issued at the request of the Plaintiff/Counterclaim Defendant Illinois Computer Research and a third party defendant and counterclaimant Scott C. Harris (“Harris”). The Defendant and Counter-Plaintiff is Fish & Richardson P.C. (“Fish”). ICR and Harris are represented by Raymond Niro of Niro, Scavone, Haller, and Niro. The only cited relationship in the subpoena that I am alleged to have with the Chicago case is “as a close associate of Fish.”
13. It is not true that I am a close associate of Fish. I have never been employed by Fish and during my career as a patent litigator before joining Cisco, I was personally adverse to Fish in at least two cases. When I joined Cisco, I learned that Fish was adverse to Cisco in a case pending in the District of Massachusetts. Up until this case was resolved in mid-October 2007, this conflict prevented Cisco from hiring Fish.
14. In mid-November, it is my understanding that Cisco hired Fish to take over representation of Cisco in a patent infringement case pending in Delaware. Although I do not have direct responsibility for this Delaware litigation involving Fish, I have been indirectly involved in that litigation.
15. As part of the ICR/Harris subpoena, I am being asked to testify about and produce documents regarding confidential sources and unpublished information that I have used to gather and report news about patent litigation on my Patent Troll Tracker website. The subpoena also attempts to compel me to testify about and to produce unpublished documents that I obtained and used for preparation of my communications to the public on my Patent Troll Tracker website. For example, Request No. 6 asks for “Investigative materials, sources for, and procedure for the Patent Troll Tracker blog articles identified in Exhibits A to C.”
16. Throughout the entire publication of Patent Troll Tracker, I have been engaged in newsgathering activities for the purpose of reporting on news about patent litigation and the debate regarding patent reform. I am concerned that if I am forced to produce unpublished information and to testify about and produce such material that it will result in a serious detriment to my ability to gather and disseminate the news.
17. For example, many of the ideas of my articles originated from tips readers would send me about patent lawsuits that were filed, or publicy-available corporate filings by shell corporations revealing the identity of their true owners. Should I be compelled to reveal my sources for these stories, readers will be less likely in the future to provide me with such information.
18. Moreover, the subpoena deposition topics and document requests are so grossly overbroad and are not properly limited to relevant and non-privileged information in the ICR/Harris/Fish litigation. As such, complying with the subpoena would impose an undue burden on me to attempt to comply. The subpoena, which I found on my doorstep on Saturday morning, March 29, 2008, only gave me nine days to produce numerous documents and only ten days before it required me to appear for a deposition. My objections for each and every document requested are set out by my counsel, George L. McWilliams, as an exhibit to his declaration, attached to Richard Frenkel’s Notice of Motion, Motion to Quash Subpoena; Motion for Protective Order; and Memorandum of Points and Authorities. I incorporate those objections by reference herein.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 4, 2008.
Signed, Richard Frenkel
Scanned PDF version of this document. <link>
Other posts in this series:
- Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
- Part Three: Is the Patent Troll Tracker a reporter?
- Part Four: Patent Troll Tracker and the Reporter's Privilege.