September 16, 2009 10:20 PM

LITIGATION DAILY: Eyes of Texas Turn to Cisco 'Troll Tracker' Trial

Posted by Ed Shanahan

This story was originally published by The Am Law Litigation Daily.

Normally, we try to avoid getting too crazy with alliteration in our headlines, but this one kind of wrote itself. Joe Mullin, intrepid staff reporter for IP Law & Business, has decamped to muggy Tyler, Texas, for the foreseeable future. His mission: to cover the highly anticipated defamation case brought by East Texas patent litigator Eric Albritton against Patent Troll Tracker blogger Rick Frenkel and his former employer, Cisco Systems.

Albritton alleges that he was libeled by Frenkel during the latter's brief and anonymous blogging career. Albritton included Cisco in the suit because Frenkel worked for the tech giant at the time he wrote the allegedly defamatory blog posts.

(For an exhaustive review of the case's long and bitter backstory, see Mullin's earlier blog posts here, here, here, here, here, and here. And in the near-unimaginable eventuality that those posts don't tell you everything you want to know, here's a trial preview from the Texas Lawyer. Like we said: lots of interest in this case.)

At issue are two Troll Tracker posts, dated Oct. 17 and 18, 2007. 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.

Albritton says Frenkel's posts damaged his reputation and caused him "mental anguish." Cisco and Frenkel argue that the posts were a mix of facts and legally protected opinion, and that they did not accuse Albritton of committing a crime.

Some highlights from opening arguments, courtesy of Mullin:

•Albritton's lawyer, solo James Holmes, telling jurors that Frenkel's posts accused his client of a felonious "conspiracy," and that Cisco, a $33 billion company, should be taught a lesson by being forced to pay punitive damages.
•Albritton's team showing the jury e-mails between Frenkel, former Cisco patent chief Mallun Yen, and the company's former PR man, John Noh, who told his boss he liked to "play a game" with journalists by pretending he didn't know the Patent Troll Tracker was actually a Cisco employee.
•The defense team, led by Chip Babcock of Jackson Walker, noting that no court clerk in the district could remember ever having changed a docket before.
•Cisco lawyers arguing that Albritton's suit is a ploy to gain him leverage in ongoing patent litigation against the company while trying to squash Frenkel's efforts to shine a light on the murky world of so-called patent trolls.

The trial is expected to last into next week, and Mullin plans regular updates at IP Law & Business. Check in for continuing posts.

In addition to Holmes, Albritton is represented by Nicholas Patton of Patton, Tidwell & Schroeder and Patricia Peden, a solo practitioner. Frenkel is represented by George McWilliams of Texarkana.

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