Judge denies Cisco's request for documents to support attorney's defamation claim

By Michelle Massey, East Texas Bureau | Jan 22, 2009

Eric Albritton

TEXARKANA, Ark. – In a defamation suit pending in Texas, U.S. Magistrate Judge Don Bush recently denied Cisco Systems Inc.'s request for an attorney to provide documents, including medical records, to support his claims of mental anguish.

The judge wrote that because the attorney was not seeking medical expenses, "any marginal relevance that could be demonstrated is far outweighed by privacy considerations."

The attorney, Eric Albritton, filed the defamation suit accusing a blogger of publishing a false and defamatory statement that he and another attorney, John Ward Jr., were conspiring with the district clerk of the Eastern District of Texas to alter court documents.

The blogger, Richard Frenkel, was posting the blogs anonymously under the name of Patent Troll Tracker. Shortly after revealing his identity, Frenkel was sued by the two east Texas attorneys.

Albritton filed the original defamation suit in county court but Cisco removed the case where it is now pending in the Tyler Division of the Eastern District of Texas.

Ward filed his original suit in county court but removed the case to the Texarkana Division of the Western District of Arkansas.

Frenkel was blogging about a case between his employer, Cisco, and a patent-holding company. He pointed out that whoever filed the patent suits first would obtain the chosen venue. He elaborated saying that Albritton filed the patent suit too soon, before the patent was approved.

The lawsuit asserts that the attorneys had engaged in criminal conduct by altering the date of a patent infringement complaint so that it would not be filed before their client's patent had been approved.

The two lawsuits allege Cisco as Frenkel's employer is also liable for exemplary damages by arguing Frenkel, as the director of intellectual property litigation at Cisco, published his statements in his managerial capacity and with the knowledge of his employer.

Recently, in the Arkansas litigation, Frenkel was dismissed from the suit filed by Ward due to co-defendant Cisco admitting in its original answer that Frenkel had published the Web site with the direct consent of his supervisor.

In addition to seeking medical records, Cisco requested Albritton's tax returns in an effort to seeking a monetary value on Albritton's claims of damage to personal reputation. The judge denied the request stating Albritton was not claiming any direct economic loss.

In the Texas litigation, Cisco's motion for summary judgment was unsealed. The document argued that Frenkel was essentially correct in his allegations regarding the actions of the lawyers. Instead of filing a motion to correct the filing date, Albritton made several phone calls to the court clerk's office without providing Cisco with notice.

The attorneys are seeking damages for shame, embarrassment, humiliation, mental pain, and anguish. Further, the attorneys state injuries to their "business reputation, good name, and standing in the community, and will be exposed to the hatred, contempt, and ridicule of the public in general as well as of his business associates, clients, friends, and relatives." Moreover, the plaintiffs are seeking exemplary damages arguing the defendants acted with malice.

U.S. District Judge Jimm Larry Hendren is presiding over the Arkansas litigation. Jury trial is scheduled for Aug. 31.

U.S. District Judge Michael H. Schneider is presiding over the Texas litigation. The case has been ordered to a second round of mediation to be completed by Feb. 16. Final pre-trial conference is scheduled for March 2.

Ward vs. Cisco and Frenkel, Case No 4:2008cv04022
Albritton vs. Cisco and Frenkel, Case No: 6:2008cv00089

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