Albritton's tearful testimony wraps up arguments in Troll Tracker defamation trial

Michelle Massey, East Texas Bureau Sep. 21, 2009, 6:44am

TYLER -- Shortly after the plaintiff got on the witness stand and started crying, testimony wrapped up Thursday, Sept. 17, in the defamation trial against Patent Troll Tracker blogger and former Cisco attorney Richard Frenkel.

The plaintiff, Longview attorney Eric Albritton, tearfully told the jury he believes the Patent Troll Tracker accused him of committing a crime.

Gesturing toward the defendants, Albritton said, "Those folks called me a criminal. People are out there saying Albritton is a criminal, out there doing bad things."

With U.S. District Judge Richard Schell president, the trial began Sept. 14 in Tyler.

The case began when Albritton, an intellectual property attorney from Longview, filed a federal complaint June 16, 2008, alleging that Frenkel, who was in-house counsel for Cisco Systems at the time, defamed him in anonymous posting on the Patent Troll Tracker blog in October 2007.

The blog posts alleged that Albritton and another attorney persuaded a clerk for the U.S. District Court for the Eastern District of Texas to alter documents in a patent suit. The Patent Troll Tracker blog claimed that the court documents were changed in what appeared to be an effort by the plaintiff's attorneys to manufacture jurisdiction.

The defendants maintain the posts never directly called Albritton a criminal, but Albritton claims the articles are defamatory because they said Albritton "conspired" with the district clerk, implying there was criminal intent.

The blog posts center around a patent infringement complaint filed by Albritton and attorney T. John "Johnny" Ward Jr. on behalf of patent-holding company ESN against Cisco.

The complaint originally had a filing date of Oct. 15, 2007. Albritton claims the suit was actually filed on Oct. 16, 2007, in the Eastern District of Texas, but the date registered as the 15th due to a slight glitch in the district's computer system.

The filing date is significant because if the complaint was filed on the 15th it was filed before the patent was issued.

Attempting to win venue, Cisco filed a motion for declaratory judgment in Connecticut on Oct. 16. The case was later closed and re-filed in federal court in Arkansas where it is still pending.

During the trial, Albritton's legal assistant testified that she began filing the ESN complaint before midnight on Oct. 15 and finished the next day on Oct. 16.

When she realized the complaint was stamped Oct. 15, the legal assistant said she called the district clerk's office to request a change. The Texarkana deputy district clerk told the assistant that she would not change the date.

The deputy clerk stated that Albritton had two options; he could either file a motion to change the date to Oct. 16 or call the Tyler district clerk's office to request the change. According to the deputy clerk's testimony, the legal assistant said that she could not file a motion, "I have to have the date changed."

U.S. District Clerk David Maland testified that Albritton's legal assistant requested that the records be changed to reflect the Oct. 16 filing date and he agreed to change the date.

In his testimony, Maland concluded that he should have instructed the Tyler docket clerk to tell Albritton to file a motion to correct the docket instead of "having the deputy clerk do a correcting entry."

Albritton admitted that if the ESN complaint was filed on the Oct. 15, then the East Texas court would have lacked subject-matter jurisdiction. The Eastern District of Texas has a reputation among intellectual property lawyers as a plaintiff-friendly court for patent infringement cases.

Albritton testified that under no circumstances would altering the documents be right and that he never asked anyone to do anything wrong.

"Truth is truth in East Texas," Albritton stated.

Albritton argued that Frenkel was told what to write on his blog by Cisco and that Cisco knew the accusations that Albritton conspired to change court documents were false.

Although Cisco has stated it will take full responsibility for the blog as the employer of Frenkel, Albritton believes the company will not.

With anger in his voice, Albritton told the jury "they picked a fight and I'm finishing it. And they should be punished for what they did."

After the plaintiff wrapped up his argument, the defendants presented a motion to Judge Schell for a judgment on a matter of law.

The defendants argue the case should not be sent to the jury, but that Judge Schell should be the one to decide if the blog posts were defamatory or defamatory per se.

The defendants argue that Albritton does not have a claim for libel because he is not seeking damages for injury to reputation.

Albritton is seeking an award for mental anguish and punitive damages.

Texas law states that to obtain an award of mental anguish damages, plaintiffs should have introduced "a direct evidence of the nature, duration and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine."

Albritton testified that posts have not caused him to seek medical care or the loss of any friends or business. Cisco and Frenkel argue that there is no evidence of the nature, duration, and severity of any alleged mental anguish and "no evidence of substantial disruption of Albritton's daily routine."

The plaintiff testified that the posts caused humiliation, worry, sleepless nights and may have hurt his work performance. The defendants pointed out that Albritton's business has increased since 2007 and there is no clear evidence of any other damages.

With the jury out of the room, the lawyers discussed how much questioning surrounding Albritton's personal life to allow. In an attempt to show the posts have not interfered with his life, the defense wanted to question Albritton about his international vacations, vacation home and the stress of building a new primary residence.

However, the judge restricted the attorneys to limited questions that emphasized that there was no difference in Albritton's routine or travel.

Cisco argues the plaintiff should not be awarded punitive damages because there is no "clear or convincing evidence" that the defendants knew the posts were false.

Judge Schell agreed with the defendants that the issue is a matter of public concern, official actions taken by public officials, "public duties with respect to publicly filed documents in the public court records of the federal judiciary."

Although he did not request a retraction, Albritton stated if Frenkel had retracted the blog posts, then Albritton would not have filed a lawsuit. The defendant's attorney pointed out that Frenkel would not apologize for the posts because not only were the articles correct, they did not accuse Albritton of a crime or injure his reputation.

Depending on how the Judge rules on the defendants' motion, the jury will get the case on Tuesday after closing arguments.

Cisco is represented by Houston attorney Charles Babcock of Jackson Walker LLP and Rick Frenkel is represented by Texarkana attorney George McWilliams.

Albritton is represented by Texarkana attorney Nicholas H. Patton of Patton, Tidwell and Schroeder LLP, James A. Holmes of Henderson and Emeryville, Calif., attorney Patricia L. Peden.

Case No 6:08cv00089

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