Troll Tracker defamation update: Cisco wants to see tax returns, evidence of 'mental anguish'

Next week, I'll be in Dallas at an IP law conference sponsored by the Center for American and International Law. After that, I'll have my first chance to visit the Eastern District of Texas. There are a couple patent trials going on in Marshall next week and I anticipate at least dropping in on both of them.

Before departing, I took some time to study up on some of my most-followed cases there. As regular readers know, former Patent Troll Tracker blogger Rick Frenkel was sued by two East Texas patent lawyers after his identity was revealed.

Not much has changed in these lawsuits. The parties in Ward v. Cisco are still fighting over venue, and in Albritton v. Cisco they're fighting discovery battles, but since I checked up on them anyhow I'll take a minute to update both cases.

I've covered the Patent Troll Tracker litigations several times before: see coverage from March 11, March 12, April, May, and August. Justia.com has dockets and documents for both cases: Ward v. Cisco Systems, et al. and Albritton v. Cisco Systems, et al. The cases are also summarized on the Citizen Media Law Project, a project affiliated with Harvard Law School. (Albritton, Ward)

Ward, Jr. v. Cisco Systems et al.

The plaintiff in this case is T. John Ward, Jr., son of the well-known federal judge T. John Ward. (at right) Ward Jr. is represented by Nicholas Patton, a Texarkana lawyer who has enforced the patents of WilmerHale patent lawyer Irah Donner, among many others.

Ward sued both Cisco and Rick Frenkel personally, agreed to drop Frenkel from the lawsuit, then asked the judge to go back on that after Frenkel asked for attorney's fees. On August 28, the judge dropped Frenkel from the lawsuit. Cisco Systems, Inc. is now the sole defendant.

The lawsuit is still pending in an Arkansas federal court. Cisco had asked to move this case to federal court in Tyler, Texas, where the Albritton lawsuit is pending, but the court denied that motion on Sept. 30.  [Order via Justia]

But now, Nick Patton is representing Eric Albritton (below) as well as John Ward Jr. In light of that change, Cisco has asked the judge to reconsider its motion to transfer to Tyler. Since both plaintiffs now have the same lawyer, Tyler is "clearly a more convenient forum," writes Cisco's lawyer. Discovery in the two cases will be "essentially identical" and keeping the Ward Jr. lawsuit in Texarkana "will subject witnesses and court resources to duplication."

"This is Cisco's third bite at the transfer apple," responded Ward Jr. this week. The interests of justice would not be served by a transfer to ED Tex, where Ward Jr.'s father is a sitting district court judge, notes Ward Jr., so moving the case there would be problematic: "Nothing about Mr. Patton's participation in the Albritton case alters the unique circumstances presented in this case." [Response, Nov. 3, via Justia]

Of the two, the Albritton case in Tyler is moving along much faster; discovery in that case is scheduled to close in just two weeks, which Ward Jr. argues is one more reason not to move the case. More on Albritton v. Cisco Systems, et al., below.

Albritton v. Cisco Systems et al.

In Tyler, discovery battles rage. In addition to Cisco, Rick Frenkel is still a named defendant, along with Cisco's chief patent counsel Mallun Yen and ex-PR guy John Noh. This case is moving along rapidly and is currently scheduled to go to trial in February.

Cisco has demanded that Albritton produce documents that would evidence the "mental anguish" he has claimed the Patent Troll Tracker caused him, including his medical records; and documents showing his damages, including balance sheets, income statements, and tax returns for 2002 through the present. Albritton says that's invasive and unnecessary; the judge has yet to rule.

In September, Cisco's lawyer made some not-surprising deposition requests, sending subpoenas to: someone who works in Albritton's law office, my soon-to-be co-panelist ED Tex lawyer-blogger Michael Smith, and witnesses who appear to be various court personnel in both Texarkana and Tyler. (Both Albritton and Ward allege that two October 2007 PTT posts related to the ESN v. Cisco Systems patent lawsuit were defamatory.)

In October, Albritton asked to depose four IP lawyers from Baker Botts' Dallas office, along with a paralegal in the same office. It's not clear to me what the connection of these lawyers to this case is; they're not involved with ESN v. Cisco. The subpoenaed Dallas lawyers are Steve Schortgen, Bart Showalter, Kurt Pankratz, and Kevin Meeks. Earlier, Albritton sent a subpoena to Dennis Crouch at Patently-O.

Cisco Systems asked to depose a few big players in the ED Tex patent litigation scene, most prominently, Sam Baxter of McKool Smith. (Baxter represents Cisco in the ESN lawsuit.) Also deposed were Michael Smith (again, I presume in his capacity as a blogger), Elizabeth DeRieux of Capshaw DeRieux (from Longview), Otis Carroll (Tyler), Danny Williams of Williams, Morgan & Amerson (Houston), and Louis Brucceleri, a lawyer based in Houston.

I would be interested in knowing the role of these folks in the case.

Comments

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