"You know, I think I was outraged over a situation ... and I used words that were strong," said Frenkel. "But I sure didn't mean to hurt anyone by it." Frenkel apologized for using the phrase, and noted that he took it off the blog after 24 hours. In October of 2007, about 500 people per day were accessing the Troll Tracker blog, he added.
At issue in the case are two particular Troll Tracker posts, dated Oct. 17 and 18, 2007. Plaintiff Eric Albritton claims the posts accused him of a crime by alleging that he "conspired" with a courthouse clerk in the plaintiffs-friendly Eastern District of Texas to change a critical date on a docket in an infringement suit he filed against Cisco. For his part, Frenkel says he was outraged that the change was made without a motion being filed.
Nicholas Patton, representing Albritton, grilled Frenkel, saying Frenkel's two blog posts had accused Albritton of committing a felony by persuading a federal courthouse clerk to make the docket change to Albritton's ESN v. Cisco lawsuit. Albritton and his supporters say he filed the case on Oct. 16 and was merely correcting the docket.
"Do you have any shame whatsoever about these two posts?" Patton asked.
"I do have some shame about the original post," Frenkel answered. "I was a little bit rash when I wrote the final paragraph of the first post [containing the "Banana Republic" phrase]. And I apologized for it. I apologized in deposition and open trial."
Patton: "Did you apologize to the people in Chicago, and San Diego, and Miami, who might have read this?"
Frenkel: "No, I did not."
Patton: "Did you ever apologize to Eric Albritton?"
Patton: "You ever apologize to Johnny Ward?"
Patton: "You ever apologize to the court clerks?"
Patton: "You don't think you owe anybody an apology for this?"
Frenkel: "No one's ever asked me for one."
Later, Patton asked Frenkel about why he chose to do his blogging anonymously. Even if people were trying to discover Frenkel's identity, Patton asked, "Why would you care?"
"When I originally started the blog I was worried, because I was blogging about patent trolls," answered Frenkel. "These are people who make money for a living suing other people. When you write about [them], you get sued. That's why I was anonymous."
Patton followed up by asking: "Isn't it true that you had been looking for a way to pursue your agenda of patent reform, and when this business about the ESN complaint came up, you saw your opportunity and took advantage of it? Isn't that true?"
Frenkel: "No sir. That's absolutely false....I did have posts about patent reform on my blog, [but] not these."
Patton continued by bringing up the e-mail chain between Frenkel, Cisco patent chief Mallun Yen, and former Cisco PR man John Noh. According to e-mail displayed in court by Patton, after Frenkel blogged about ESN v. Cisco in his "Banana Republic" post, Yen forwarded a link to the Troll Tracker blog to Matthew Tanielian, at the time a Cisco lobbyist in Washington D.C.
"Do you know why Ms. Yen was interested in sending this blog [post] to somebody in governmental affairs?" asked Patton. "Do you think it might have had something to do with patent reform?"
Frenkel responded: "I have no idea."
[At that point, Judge Richard Schell excused the jury from the courtroom. Lawyers for the defendants told Schell they wanted to bring in evidence of Eric Albritton's own meetings with Congressional representatives on the issue of venue reform if his lawyers insisted on raising the issue of Cisco's lobbying. Schell told both parties to avoid the issue of lobbying altogether and brought the jury back in.]
Patton asked Frenkel if the October 2007 "incident" and ensuing lawsuits had anything to do with him seeking other employment. "In a small way, yes," answered Frenkel, who is of counsel at Wilson Sonsini Goodrich & Rosati. Frenkel said his boss, Cisco GC Mark Chandler, was "not very happy" about the "Banana Republic" comment.
"You were getting ready to get fired, weren't you?" asked Patton.
"No. They told me that wasn't going to happen," Frenkel said, adding that he wasn't reprimanded for his blogging.
Was Noh approving of the "Banana Republic" line when he responded to Frenkel's post with an e-mail saying "brilliant," asked Patton?
"I don't know what Mr. Noh meant," said Frenkel.
Patton asked why Frenkel was critical of the Eastern District. "There were cases I thought didn't belong here, that were out of place," said Frenkel. "And there were cases where I thought they should have been resolved earlier, on summary judgment, and they went to trial anyways. Over time, I softened those views, and realized that happens in a lot of courts."
"You've been wrong about a lot of things, haven't you?" asked Patton, raising his voice. Why was Frenkel critical of patent plaintiffs who don't manufacture something?
Frenkel said his main concern was venue reform, not stopping patent trolls. "I never said that those plaintiffs don't have a right to bring lawsuits," he said. "I just said there should be some logic as to where those lawsuits should be brought."
After Patton wrapped up his questioning, Frenkel was questioned further by his lawyer, George McWilliams, and Cisco lawyer Charles Babcock. Frenkel said if it weren't for Cisco footing his legal defense bill, he wouldn't have the financial resources to defend himself against Albritton's libel lawsuit.
McWilliams: "Tell the jury how this interest arose... what prompted [you] to be so interested in patent litigation statistics?"
Frenkel: "When I first got to Cisco it surprised me that all the litigation Cisco had were against companies I had never heard of. It turns out a lot of them were shell corporations. What I'm trying to say is, a company that didn't make any products, but just going out and trying to sue companies that do make products, for patent infringement, to try to make money. Not that there's anything illegal about that. But it is what it is."
McWilliams: "Why do you think there weren't any blogs out there? Why wasn't someone gathering this information?"
Frenkel: "I think it's a combination of issues. A lot of the people reporting on patent cases didn't do any digging in to it. But two, a lot of these companies were going to great lengths to make sure nobody knows who they were. It's very difficult to figure out who's making the money."
McWilliams: "Give me an example of what some of these statistics might show."
Frenkel: "One showed that the number of patent lit cases in Dallas and San Francisco, since 2003, had been decreasing every year, while the number of cases in the Eastern District of Texas had increased by eight [times], depending on how you count."
Frenkel said that by his calculation, about 40 percent of the patent lawsuits filed in the Eastern District of Texas were being filed by patent trolls, far above the national average. "It seemed strange that it would be such a high percentage here and not as high anywhere else," he said.
In the year 2007, more than 1,500 defendants were sued in the Eastern District of Texas, said Frenkel. Only one other district-the far more populous Central District of California-even came close, with around 1,000 defendant companies sued.
Defense lawyers asked Frenkel what he thought about Nick Patton calling his blogging an act of "stunning cowardice" and about Peter Andrews, the lawyer representing ESN, referring to him a "punk" in an e-mail.
"They're entitled to their opinions," said Frenkel. "It's not a suable offense."
When Patton got a final chance to question Frenkel, he asked to know how many e-mails he'd received as Troll Tracker, and why they weren't all produced in the case. Frenkel said he had given everything he had to his lawyers.
Finally, Patton asked: "Does the First Amendment apply to lies?"
"No," said Frenkel, "but that's not what happened here."
Frankel said that only a few legal staff at Cisco now have access to his shuttered "private" Troll Tracker blog. And they only can read it because of a "litigation hold" that's been placed on it, because of the defamation cases.
"Once this is over," he added, "it's gone."