On Friday, Cisco Systems unsealed its motion for summary judgment in the Albritton v. Cisco Systems defamation lawsuit, one of two libel lawsuits suits filed against ex-Troll Tracker blogger Rick Frenkel and his then-employer, Cisco.
There's a lot of information here, but the takeaway point is this: Cisco says Frenkel's articles were accurate. And in the United States, of course, you're allowed to publish true information, even if it hurts someone. What Albritton said was defamatory was either true (the docket was altered), or fell into the categories of opinion and rhetoric (words like "conspiracy") or just wasn't about him, says Cisco's lawyer, Charles Babcock of Jackson Walker.
Cisco also argues that Albritton's reputation wasn't injured at all by Frenkel's two articles, which involve a changed filing date in the ESN v. Cisco Systems lawsuit. As for co-defendants John Noh and Mallun Yen, the company says they had no role writing, reviewing, editing, or publishing Frenkel's articles.
My Recorder colleague Zusha Elinson spoke to Babcock yesterday; Albritton's lawyer declined to comment (see story in Legal Pad). The narrative here is based on the Motion for Summary Judgment filed by Cisco lawyer Charles Babcock of Jackson Walker LLP, and accompanying exhibits. Those documents are posted at the bottom of the post. The other side has not yet responded; I will update & add when they do.
The story starts in 2006. That's when patent-holding company ESN, LLC teamed up with its lawyer Peter J. McAndrews (from McAndrews Held), and began threatening Cisco with an infringement suit—before its patent even issued. ESN was also working with a big E.D. Tex patent player, Longview, Texas lawyer Eric Albritton. Both sides apparently knew a lawsuit was coming, and Albritton wanted to win the race to the courthouse; so he planned to file ESN v. Cisco in the Eastern District of Texas one minute after midnight on the date of patent issuance, Oct. 16, 2007.
The complaint, made public through Pacer, ended up being stamped Oct. 15. How did it happen? Well, Albritton's assistant did finish the filing after midnight, but she started the lengthy upload "fifteen to thirty minutes before midnight." So it got the earlier filing date—by design, not by accident, pointed out Babcock.
That was seriously bad news for Albritton. The court wouldn't have subject matter jurisidiction if he filed before the patent issued. That means he'd lose his race, because on Oct. 16, Cisco filed a declaratory judgment (DJ) claim in Connecticut, asking to invalidate the ESN patent. So Albritton was at risk of losing his chosen venue.
"Troll jumps the gun, sues Cisco too early," wrote Frenkel on the evening of Oct. 17. He opined that ESN lacked subject matter jurisdiction. "Sorry, ESN," he wrote. "You're on your way to New Haven. Wonder how Johnny Ward will play there?" Patent blogger Dennis Crouch had already noted ESN's "preemptive strike" a day earlier. IPLaw360 also commented.
By the next day, the docket had changed, indicating an Oct. 16 filing date. Frenkel wrote his second allegedly defamatory post noting—correctly, we now know—that the docket & complaint were altered. "Only the EDTX Court Clerk could have made such changes," wrote Frenkel. Right again. And there was "tons of proof" ESN had filed on Oct. 15: "Heck, Dennis Crouch may be subpoenaed as a witness!" he wrote. (Prescient, that.)
He continued: "You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a 'mistake' ... the proper course of action should be a motion to correct the docket." (The Oct. 18 post also contained the "Banana Republic of East Texas" remark, which was deleted within a day or two; see my earlier post which shows both versions of the entire Oct. 18 PTT post).
Where did the changed date come from? According to depositions, Albritton's assistant called the Clerk's office five times urging them to change the date, and he urged her to "stay on top of it." The E.D. Texas court employees ultimately did change the date—something they had never done before, according to court workers in depositions.
We don't yet have a full response. But based on an excerpt of Albritton depo testimony from motion, it looks like he's saying that the filing date really should
have read Oct. 16, and thus, these were just his honest efforts to
correct a mistake. (He should have filed a motion instead of making calls, says Babcock.)
Albritton says that because Frenkel used the word "conspiracy" at one point, he stands accused of a crime. But the word "conspiracy" was really just "rhetorical hyperbole" on Frenkel's part, argued Babcock. Albritton, McAndrews, and defamation trial counsel Nick Patton "certainly recognize that sharp language and name calling are protected speech," Babcock wrote:
Otherwise, Patton would not have called Frenkel a "coward" and Cisco a "bully" in an interview with the Texarkana Gazette about this case. Nor would McAndrews have referred to Frenkel as a "punk" in an email exchange with Albritton and in his deposition. Nor would Albritton have called Frenkel "lots of ugly names" as he admitted in his deposition.
There's more here, including a page and a half of references to news articles about E.D. Texas in which yours truly is nowhere to be found. Hmph. Well, most of my E.D. Texas reporting is online and not in the print edition, so I guess I shouldn't be surprised. I'll write another post with some tidbits from the evidence later this week, time permitting. Since Justia doesn't seem to have all the exhibits, I'm uploading them to this post for public consumption.
Finally, I should note that this document was initially filed under seal, for reasons that are not clear to me. I was preparing to send a formal request to unseal it, but was pleasantly surprised to come back from a weekend trip and find that Cisco's attorney had already moved to do so, and that it was not opposed. I've complained about over-sealing of court documents before, but this time I'll just say I'm glad Cisco recognized there is a legitimate and strong public interest in this case.
Documents in Albritton v. Cisco Systems, Inc., et al. 08-cv-089, E.D. Texas (Tyler):
- Full Albritton v. Cisco Systems docket on Justia
- Exhibits 3-10 (7.3mb PDF)
- Exhibits 11-20 (5.6mb PDF)
- Exhibits 21-30 (17.5mb PDF)
- Exhibits 31-41 (15.9mb PDF)
Photo: Downtown Tyler, Texas. By J. Mullin.