The Prior Art blog is reporting from the trial over the next several days.
We’ve covered the background and development of Albritton v. Cisco Systems, a case brought by lawyer and east Texas patent litigation player Eric Albritton against Rick Frenkel and his former employer Cisco Systems, alleging that in the course of Frenkel's brief and anonymous blogging career, he libeled Albritton.
(Earlier TPA coverage of Albritton v. Cisco and Ward v. Cisco: Troll Tracker sued, 3/11/20008; Judge Ward's Son may have pursued Troll Tracker for months, 3/12/2008; Frenkel, Cisco to fight defamation suits in East Texas, 5/27/2008; Troll Tracker blogger Rick Frenkel moves to Wilson Sonsini, 8/4/2008; Troll Tracker defamation update, 11/7/2008; Cisco says Frenkel told the truth, 12/9/2008.)
More recently, sibling publication Texas Lawyer just published an overview of the facts of the case here.
Albritton’s suit stems from two posts on the popular patent blog Patent Troll Tracker authored by Frenkel. Albritton claims the posts – dated October 17 and 18, 2007 – accused him of a crime because they alleged that he “conspired” with the E.D. Texas to change a critical date on a docket in a patent lawsuit against Cisco.
Those posts, he said, were defamatory and thus damaged his reputation, and have caused him mental anguish.
Cisco and Frenkel argue the posts were a mix of true facts and legally protected opinion, and, the defendants say, didn't even accuse Albritton of any crime.
It gets a bit complicated, but stick with me here. The specifics of the case involve a date change in the court docket in ESN v. Cisco, an E.D. Texas patent infringement lawsuit in which Albritton represented ESN, a patent-holding company. In an Oct. 17, 2007 post titled “Troll Jumps the Gun, Sues Cisco Too Early” Frenkel wrote that ESN had filed suit on Oct. 15, even though its patent, no. 7,283,519, was issued on Oct. 16; he was upset that the court clerk had changed the date on the docket and complaint. This was a big deal because ESN and Cisco were engaged in a race to the courthouse, with ESN seeking to get venue in East Texas and Cisco hoping for Connecticut, where ESN--a patent-holding company with no employees, offices or products--is based. Frenkel was upset by the change, and said so; Albritton says those are the posts that defamed him.
Albritton is being represented by three lawyers: James Holmes, a solo practitioner in Henderson, Texas; Nicholas Patton of Texarkana law firm Patton, Tidwell & Schroeder; and Patricia Peden, a solo practitioner in Emeryville, California. Defense efforts for Cisco are led by Charles “Chip” Babcock, a Jackson Walker partner based in Houston, working together with George McWilliams, a Texarkana lawyer representing Frenkel personally.
Jury selection was completed Monday morning, and the five men and five women selected heard opening statements in the afternoon.
The case is now before Judge Richard Schell, who usually sits in Plano but is hearing this case in Tyler. Schell is the third judge on the case, brought in after two other E.D. Texas judges—Judge Leonard Davis, who normally handles cases in Tyler, and Judge Michael Schneider—recused themselves from the matter, presumably because both had been named in Troll Tracker blog posts (though not the posts in question in this case.)
Among the ten observers in the courtroom on Monday morning was Johnny Ward Jr., another E.D. Texas lawyer with a similar lawsuit pending against Cisco. Ward is likely to be called as a witness in the Albritton lawsuit; his own case is scheduled to go to trial in February 2010.
Here are some of the highlights from Monday’s opening arguments:
- James Holmes said his team will show that Frenkel's posts accused Albritton of a felonious "conspiracy" and were "hurtful, painful, [and] disturbing" to Albritton. Cisco, a $33 billion company, should be taught a lesson by being forced to pay punitive damages, the lawyers said.
- Holmes showed e-mails exchanged between Frenkel, former Cisco patent chief Mallun Yen, and former PR man John Noh--who told his boss he liked to 'play a game' with journalists by pretending he didn't know that the Patent Troll Tracker was actually a Cisco employee.
- Defense lawyers Babcock and McWilliams said Frenkel's post about the changed docket date was dead-on true, noting that no court clerk in the Eastern District could remember ever having changed a docket before. In any case, they maintain Albritton hasn't suffered any financial harm, and he has no real evidence to support his claim of "mental anguish."
- Babcock also argues the defamation lawsuit is intended to gain some leverage against Cisco in ongoing patent lawsuits—and, not coincidentally, squashing Frenkel's attempt to shine a light on the murky world of patent trolls.
James Holmes' opening statement for the plaintiff
Holmes told jurors the case wasn't about Rick Frenkel's “strong opinions” about patent litigation, as his opponents had characterized it. The case is about a big company bullying a small-town patent lawyer just trying to provide for his family. “Cisco believes it can push people around and spread lies about lawyers and people in this district without being accountable,” said Holmes. “Spreading lies about Eric was some kind of game—a game played with his reputation.” Jurors should consider punitive damages, he added, “to punish Cisco and make sure this type of conduct doesn't happen again.”
Then Holmes got into the dispute over the posts at issue, reading the original version of the most strongly worded of the posts, reading part of the blog post to the jury:
You can't change history, and it's outrageous that the Eastern District of Texas is apparently, wittingly or unwittingly, conspiring with a non-practicing entity to try to manufacture subject matter jurisdiction. This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.
Holmes repeated the last clause slowly, emphasizing each word to the jury: “The Banana Republic of East Texas.” Then he showed the modified version of the post that went up the next day, which eliminated that last sentence and changed “conspiring” to “may have... helped.” (Frenkel had regretted his earlier harsh phrasing and changed the post of his own accord, his lawyer told the jury later on Monday.)
That was bad enough, said Holmes, but it gets worse: “When those statements went up, would you believe, Mr. Albritton didn't know who this person was. Troll Tracker was anonymous.” Later, Troll Tracker unmasked himself, and it became clear that “Frenkel was acting on orders from his bosses at Cisco,” said Holmes, flashing pictures of Cisco's former patent chief Mallun Yen and PR man John Noh.
Holmes then highlighted emails exchanged between Yen, Noh, and Frenkel about the ESN case. The emails show that Yen and Noh knew about Frenkel's second identity as the Patent Troll Tracker—and advised him to write about ESN's lawsuit against Cisco. Noh even boasted about how he'd fooled journalists into thinking the Troll Tracker wasn't connected to Cisco: “I play a game with them about how I have no idea who the Troll Tracker is, but I read his blog religiously,” wrote Noh. Frenkel asked: “Would this be hitting too close to home in terms of the dotted line between Troll Tracker and Cisco?” Yen suggested that Frenkel attribute the post to an anonymous tip, and then Frenkel got to work on his ESN post. “Brilliant,” wrote Noh. “Thank you.”
Frenkel's posts were “hurtful, painful, disturbing,” said Holmes, wrapping up his statement. “Eric didn't ask for it, and he didn't deserve it. I want you to consider in your verdict what it will take to show a $33 billion corporation that it can't play games with people's lives.”
Defense Lawyers' Opening Statement
Cisco lawyer Chip Babcock started off by telling jurors that Cisco “takes full responsibility” for the Patent Troll Tracker articles—even though the company didn't “review, edit, or send out these articles.”
But whatever the ties between Cisco and the Troll Tracker blog, Albritton's claims don't hold up, he said. First of all, the factual part of the blog posts is accurate, he noted: “The statements are true—ESN's local counsel convinced the clerk to alter the docket.” He also argued that Albritton actually defamed himself since it was he—not Frenkel—who said the posts were about criminal activity. “More people know about Frenkel's articles as a result of this lawsuit than ever read them at the time,” continued Babcock. He hasn't lost any business. (In fact, in earlier Cisco documents Babcock notes that Albritton is doing better than ever since he was allegedly defamed.) Nor have, by his own admission, his family life or health been affected.
George McWilliams, a Texarkana lawyer representing Rick Frenkel, had a separate opening, and began by sharing some personal details about his client's life. Frenkel, who is 42, went to college at age 16, graduating at 20 with an engineering degree. He worked as an engineer for about 10 years before deciding to go to Loyola Law School, where he graduated first in his class. Frenkel became a widower when his first wife died shortly after he took the bar exam; he's since remarried and has two children.
His interest in statistics and litigation led him to the mysterious world of patent trolls—and Frenkel was “shining a light on that practice,” said McWilliams, by naming names and making the trolls uncomfortable. “He felt like there was lawsuit abuse in the patent system, and that a lot of that abuse... was taking place right here in the Eastern District of Texas,” said McWilliams. “He felt pretty strongly about that.”
Frenkel shouldn't be “demonized” for just noting a change in the date on the docket in ESN v. Cisco, said McWilliams. “Rick Frenkel... saw a public record change... and brought it to everyone's attention,” said McWilliams. “And what he said was right.”
Even after the change was made, Frenkel's commentary was a far cry from accusing someone of a crime, said McWilliams: “Did Mr. Maland, the court clerk, have any evil intention? No. All of us in this room have known Mr. Maland his entire career, he's a fine gentleman. He had a lapse of procedure. Eric Albritton, did he have some evil intention? No. He is a good man; he is a good lawyer. He's an influential lawyer. When someone from his office calls the clerk's office, they listen.”
Both McWilliams and Babcock ended by noting that the lawsuits had succeeded in silencing Frenkel, who is now of counsel at Wilson Sonsini Goodrich & Rosati.
“Free speech guarantees the right to express our opinions which is what Frenkel was doing,” said Babcock “But now his voice has been silenced... A voice that is important to our society and our community is not being heard anymore, because of this litigation.”
After opening statements, the first plaintiffs' witness was called: Peter McAndrews, who represents patent-holding company ESN. More trial news to come...
CORRECTION: An earlier version of the post incorrectly referred to Mallun Yen as "former patent chief at Cisco." Yen continues to serve as a Vice President of Intellectual Property at Cisco, the same position she held in October 2007.