Parties in Troll Tracker defamation trial settle hours e Jury Deliberations Scheduled to Begin

By: Michelle Massey

TYLER � After four days of arguments and testimony in the defamation trial against the Patent Troll Tracker, the parties agreed to a confidential settlement just a day before the jury was scheduled to hear closing arguments and begin deliberations.

Longview attorney Eric Albritton filed a lawsuit last year against Cisco Systems and Richard Frenkel, a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker. The lawsuit accused the blogger of publishing false and defamatory statements that Albritton had conspired with the district clerk to alter court documents.

Specifically, the blog implied that Albritton and fellow East Texas attorney T. John Ward Jr. convinced the district clerk to change the filing date of a patent infringement complaint, ESN v. Cisco, in 2007.

Throughout the case, the defendants maintained that the blog posts were correct and constitutionally protected. The testimony of the district clerk, Albritton's legal assistant, and Albritton himself confirmed that the documents were originally filed with a date of Oct. 15, 2007, but were later changed at the request of Albritton's office to show a filed date of Oct. 16, 2007.

The deputy district clerk testified that the computer program used to file lawsuits has a slight glitch. The document is marked "filed" when the user opens the program to start the filing of the complaint, rather than at the conclusion of filing.

Albritton's attorney argued that there was nothing unordinary about the filing of ESN v. Cisco. With an attorney request and civil cover sheet, the district clerk's office will set up a shell case file with an assigned case number and judge 24 hours prior to the actually filing of the lawsuit.

For the ESN case, Albritton's office did just that -- requested a shell case file and opened the program to start the filing. However the program opened a few minutes before midnight on Oct. 15, the complaint was uploaded a few minutes later on Oct. 16. The local rules states that the case is filed when you electronically upload the complaint.

Members of the local rules committee, the district clerk and Albritton testified that a similar incident could occur again. The district clerk testified that he would be placing a notice in the rules regarding this possible error.

On the witness stand, Albritton argued that the blog posts went beyond implying that the case was marked wrong but that he was a criminal for "conspiring" to change the dates. Although the blog posts used the word "conspire," Frenkel and Cisco argued that it did not mean with criminal intent, only that Albritton worked with the clerk's office to change the date instead of filing a motion for correction.

Albritton insisted his actions were legal but felt the defendants accused him of acting not only illegally but also unethically. After early rulings by the court, Albritton was restricted to seeking mental anguish damages and punitive damages.

The case was settled shortly after Judge Schell ruled on the defendant's judgment as a matter of law. Judge Schell ruled that while Albritton was a private figure, the blog was about issues of public concern and therefore, Albritton would have to prove actual malice to obtain punitive damages.

The jury would decide if Albritton proved that the defendants' knowingly published false statements or that the defendants entertained serious doubts as to the truth of the articles at the time they were published.

Regarding the confidential settlement, Cisco stated, ""The parties are happy to report that the dispute among them has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton."

Albritton testified that at the discovery of the blog posts, he said, "Let's get this shut down."

Albritton was successful, and the blog is virtually defunct. Critics say the blogger's free speech was violated, and the spotlight has been taken off patent trolls, the companies that exist only to buy patents and then sue other companies for infringement.

Frenkel is now employed with Silicon Valley law firm Wilson, Sonsini, Goodrich and Rosati.

A second defamation suit over the blog posts is pending in the Texarkana Division of the Western District of Arkansas and is scheduled for trial in early 2010. Attorney T. John "Johnny" Ward Jr. filed the lawsuit but has dropped Frenkel as a party and continues the case against Cisco.

Ward is the son of Judge T. John Ward, who has contributed to making the Eastern District of Texas a "rocket docket" for patent litigation.