Ward v. Cisco Systems, Inc. et al

Filing 158

SUR-REPLY by John Ward, Jr re 114 MOTION for Partial Summary Judgment and Brief in Support. (Attachments: # 1 Ex. A, # 2 Ex. B)(Patton, Nicholas) Modified on 11/30/2009 to add text (cap).

Kent Campbell: Background My name is Kent Campbell, I am the founder of KentCampbell.com; an Internet Reputation Management firm based in Southern California. I was asked by the law firm of Patton, Tidwell & Schroeder, LLP to render an opinion as to whether or not the reputation of Mr. John Ward Jr. has been harmed by allegations made by the author of the Troll Tracker blog. My firm assists companies and individuals proactively and defensively to identify and manage either direct or anonymous Internet reputation issues. My Internet marketing experience began shortly after graduation from the Art Center College of Design in 1993 where I have worked to develop internet brands and their promotion through traditional and new media. I have managed online marketing for global brands from many positions including Creative Director, consultant, Director, and Vice President of a public company. I have consulted in the area of online reputation enhancement and search engine marketing since 2001; in recent years I have increasingly engaged in defensive internet reputation management for my clients. Clients often utilize my firm to reduce or remove search engine results that may be negatively affecting them, either due to lost business, lost opportunities, or negative public relations. I help clients by identifying the type of online reputation issues they face. I then provide strategies for elimination of the issue, or in the case of a problem that cannot be eliminated, I work to re-engineer search results in order to reduce the negative effect of damaging search results. In some cases the services I provide cannot remove or reduce the negative effects. Our company's clients include law firms, high profile executives, and companies in a broad range of industries.

Opinion Overview Based on my research using major search engines including Google, Yahoo, and Microsoft Bing, it is clear to me that the reputation of John Ward Jr. has been harmed, and will continue to be so well into the future by allegations made on the Troll Tracker blog. The issue Mr. John Ward is having is an example of the type of online reputation problem my clients ask my company to solve for them. The statements: "Perhaps realizing their fatal flaw (as a couple of other bloggers/news items have pointed out), ESN (represented by Chicago firm McAndrews Held & Malloy and local counsel Eric Albritton and T. Johnny Ward) filed an amended complaint in Texarkana today - amending to change absolutely nothing at all, by the way, except the filing date of the complaint. Survey says? XXXXXX (insert "Family Feud" sound here). Sorry, ESN. You're on your way to New Haven. Wonder how Johnny Ward will play there?" and "ESN Convinces EDTX Court Clerk To Alter Documents To Try To Manufacture Subject Matter Jurisdiction Where None Existed" "I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco (the Texas docket, not the Connecticut docket), had been altered. One email suggested that ESN's local counsel called the EDTX court clerk, and convinced him to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that's exactly what happened-the docket was altered to reflect an October 16 filing date, and the complaint was altered to change the filing date stamp from October 15 to October 16." "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."

I have been advised that altering Federal government records is a criminal offense. I believe the allegations have been, and will continue to be, widely distributed on the Internet in a viral manner by activities both human and electronic. The Troll Tracker allegations are found both as standalone archives of the original blog pages completely separate from editorialized versions of the page. In addition to publicly available electronic copies of the original content, editorial copies also exist. Some of the editorial comments, though not all, are a result of reaction to the current lawsuit. It is my opinion that copies of the original Troll Tracker blog would continue to exist whether or not a lawsuit had been filed. It is my opinion that as search engine technology continues to improve and more of the web is indexed by search engines, the issue could continue to worsen as more copies of the Troll Tracker blog content is revealed, copied, and archived, exponentially. My opinion is based on the discovery of publicly available reproductions of the Troll Tracker blog and it's content using commonly used search engines such as Google.com, Yahoo.com, and Bing.com. The results found did not require any special tools or knowledge to discover, and were easily found using various search terms that would be commonly used in any due diligence search regarding Mr. Ward using variations of his name as key phrase in search engines. The searches and Internet links reflecting the damaging content are repeatable, and quantifiable by anyone using major search engines. When taken as a whole, the comments on the Troll Tracker blog appear designed to publicly implicate Johnny Ward as an unethical East Texas attorney, and further, one who has committed a crime by conspiring to alter court documents. The use of the term 'banana republic' by Troll Tracker is a pejorative term that paints East Texas as "politically unstable" and "corrupt" according to the definition of 'Banana Republic' available on Wikipedia (http://en.wikipedia.org/wiki/Banana_republic). One of the counsels Troll Tracker refers to is "T. Johnny Ward". Key Trends The world wide web has enabled anyone with a computer and an internet connection to perform due diligence on anyone else. A majority of Americans use the Internet for this

type of research whether they are looking up reviews on Amazon for a product they may be considering, or deciding which attorney to use. Cited below is information from the PEW Internet and American Life Project. About the Pew Internet Project: The Pew Internet Project conducts original research that explores the impact of the Internet on children, families, communities, the work place, schools, health care and civic/political life. It seeks to be an authoritative source for timely information on the Internet's growth and societal impact. According to the PEW Research Center: "Seven-in-ten Americans (73%) are Internet users, almost 60 points more than were online in 1995 when only 14% of the country used the Internet." http://pewresearch.org/databank/keytrends/ "In general, more people turn to the Internet (at home, work, libraries or other places) than any other source of information and support, including experts and family members." ( http://pewresearch.org/pubs/677/in-search-of-solutions ) People are turning to the Internet more and more for a source of information, and the majority of Internet users believe search is their most important online activity. Most people start their search for information on the Internet with a search engine. Google is the most popular search engine, followed by Yahoo, MSN Bing, and hundreds of other search engines. Finally, according to Forrester Research, 50% of people trust search results, whereas 25% trust direct mail. The highest trust rating was 77%, for email from people they know. Of all search engines, Google tends to have the highest amount of trust - this has been called the Google 'halo' effect. An article on AdAge.com states: "Consider that Google has conducted internal tests, according to people familiar with them, in which the company put its logo and treatment on another engine's search results. Users still prefer the results with the Google logo, even if they're not Google results."

Ad Age, May 25, 2009 http://adage.com/digital/article?article_id=136847 Searching, Scanning and Clicking When researching a person or company, people tend to do at least one search using a search engine like Google, then follow links that are within the search results returned by the search engine, or go back to the search engine and search again, often using a different search phrase. In other words, people tend to search with a few words (a key phrase), scan the search results, click on a result based on its summary, learn something, then either follow links in the web page, or do another search. People pay particular attention to the title of a web page. Then, if interested, they scan with their eyes while doing Internet research to quickly get 'the general idea' of the content of the page. In this case, a particularly strong accusation was made in the title of the blog post - "ESN Convinces EDTX Court Clerk To Alter Documents To Try To Manufacture Subject Matter Jurisdiction Where None Existed". People do not normally read every word on a web page in an in depth way (such as may be done while reading academically) unless they are interested in the title. A person searching may scan pages then use a number of related, learned, search terms during a search session using variations of a key phrase like those used when researching John Ward. When people use search engines they enter 'key phrases', usually of two to three words. The key phrases most likely to be used by people researching John Ward include, but are not limited to: "T. Johnny Ward" Johnny Ward Johnny Ward Texas lawyer john ward attorney texas John Ward Jr. Using various learned key phrases to search is an example of how people find the Troll Tracker content, whether it is on the Troll Tracker site or in one of many other places. Even though the Troll Tracker site is off-line, its contents still exist and are publicly searchable by anyone with an Internet connection.

The nature of the Internet and search engines is that once something is published on the web, then accessed by automated search engine software like that of Google and Yahoo, it is difficult or impossible to remove. Though the Troll Tracker blog has been removed, its content lives on in publicly available Internet archives, copies, editorials, and user comments, and will continue to exist for the foreseeable future. It is my opinion that these comments can never be removed from public view due to the actions of both people, and Internet-based automated programs run by the search engines commonly called 'bots'. For example, the original Troll Tracker blog is archived here: http://people.ffii.org/ ~zoobab/bh.udev.org/filez/swpat/TrollTracker/20080528155112/ and a search for "T. Johnny Ward" brings this search result up in a Google search. Over time, this, and other content will come up on page one, or further back, in search results. Thus, though the Troll Tracker blog is gone, its contents and damaging comments are everlasting. Even if the electronic evidence of the Troll Tracker blog allegations, resulting commentary, and other content could be made to disappear, the persons that have read and have been influenced by the defamatory information could be in the thousands and may never be known. The Visible Web and the Deep (Hidden) Web "The deep Web (also called Deepnet, the invisible Web, dark Web or the hidden Web) refers to content that is not part of the surface Web, which is indexed by standard search engines. The hidden web consists of content such as web pages that have not been indexed by search engines yet." (http://en.wikipedia.org/wiki/Deep_web) Search engines find web pages by following hyperlinks from other web sites. Hidden web pages are hidden either because they have no links to them from other sites already indexed by search engines, or because they are hidden behind web forms or other inaccessible areas of the web. Search engines are actively and successfully working to increase the number of pages they can access and index. With the growth of search technology, web pages that currently exist, but are not yet indexed, could be indexed at any time and begin appear in search engine results.

The 'hidden web' affects Mr. Ward because using search engines, people can currently only access information that search engines have indexed. Billions of web pages exist now that have yet to be indexed by search engines. When these web pages are eventually indexed, they will appear in search results - even years after they were posted. This means that copies of the Troll Tracker pages, and copies of the pages, that may currently exist but are not yet available through search engines like Google, Yahoo, Bing, and others, may become available at any time in the future. Response to Online Accusations Many of my clients are, or were referred, by attorneys that have made the mistake of responding to defamatory statements online. Responding online will cause the page content to be updated. Search engines may visit a site that is updated more often by increasing the rate at which their 'bots' visit and index web pages. Blogs are especially favored for higher crawl rates. A higher crawl rate means a search engine will come to the page more often, caching the page each time. When a search engine caches a page, it reads the text of the page and keeps a copy of that page on it's servers - in essence, copying the page. In addition to refreshing the content of a web page, responding to an online accusation on the offending site may add key phrases that make the page rise in search ranking for that search phrase. For example, by adding the name 'Johnny Ward' a few times on a blog page search engines may find the page more relevant for the search term 'Johnny Ward'. The more relevant a page, the higher it tends to move in search results - often to page one. By responding online to accusations, a person can unintentionally make the problem worse. Removal of Web Content Web content such as web page can be immortalized by both human and machine actions. Web page content is often duplicated, then duplicated again, endlessly. The more time passes, the more removal of all permutations of this content may be considered futile. The Immortality of Blog Comments

Through the following methods, the comments initiated by Troll Tracker have spread to many third-party sites and archives in various forms: Form 1: Copies of the original content have been distributed to other third-party websites and remain on those sites. Form 2: Search engine related robots have 'cached' copies of the web pages and archived them. Form 3: Editorial comments have been made on the copied content of the Troll Tracker blog. Form 4: The general public has commented on the negative contents of the Troll Tracker blog.

1) Regarding Form 1: Copies of original content

The original content of TrollTracker has been cited and commented on by numerous bloggers, each with their own website or editorial control of a website. They have copied and pasted the negative comments into their web sites or received the content through automated means. Each copy of the content can be indexed and searched by Google, Yahoo, and other search engines. The result is that when Johnny Ward's name is entered into these search engines the negative comments are returned by the search engine for the general public to read. Here is an example of original content being copied. Note that this content may be part of the 'hidden web' in that there are no obvious links to the page from other web sites. This may be because a link existed at one time, but no longer does. Even though the link to the content may no longer be in existence, the page itself is. http://www.anonymous-insider.net/blogging-astroturfing/research/2007/1017-a.html At the time of this writing, this copy of the original Troll Tracker comments appears on the first page of a Google search for "T. Johnny Ward" - entitled "Troll Jumps the Gun, Sues Cisco Too Early"

2) Regarding Form 2: Caching

Google and other search engines regularly take a 'snapshot' of a web page using 'robots' that crawl the web. Robots are programs that search the web continuously, recording and archiving its contents. Web pages, including blogs, are regularly copied to the many servers (remote computers that store pictures of web pages and run software) of search engines and many websites for later reference. This practice is called Caching. Not only does this make the original contents of the Troll Tracker site available for people to search, but the archival quality allows it to be searched long into the future. For example, someone searching many years from now may be able to see the original contents of the Troll Tracker blog even though the blog has been shut down.

The comments that have been copied or cached are a result of searches that include Johnny Ward's name, often on the most visited first page of search results. Here are examples of 'snapshots' created or cached and archived copies of the original found in publicly accessible places on the Internet: (http://74.125.155.132/search?q=cache:oiSy8_lxEbIJ:boycottnovell.com/files/ trolltracker/20080528155112/ +%22johnny+ward%22+comments+texas&cd=22&hl=en&ct=clnk&gl=us ) http://boycottnovell.com/files/trolltracker/20080528155112/ http://people.ffii.org/~zoobab/bh.udev.org/filez/swpat/TrollTracker/ 20080528154913/ Here is an example how the copy of the page looks - even the original formatting is retained:

This is an example of the fact that caching is a snapshot of a web page in time. It is fluid and transitory in nature. There is no way to know when a cached copy will show up in search results, nor when it will disappear again. Cached copies may exist, yet not show up in search results for months or years.
3) Regarding Form 3: Editorial comments

The Troll Tracker blog posts initiated statements by bloggers and journalists on prominent websites citing the original and making statements such as:

"In that post, Frenkel suggested that Albritton and attorney T. John Ward, Jr. conspired to have documents altered in their favor by court personnel in U.S. District Court for the Eastern District of Texas, a district widely seen as amenable to plaintiffs in patent litigation." (http://www.marketwatch.com/story/cisco-employees-deny-directing-patent-troll-blog ) and (http://www1.investorvillage.com/ smbd.asp?mb=3666&mn=250235&pt=msg&mid=5433493 )
4) Regarding Form 4: General Public Comments

People have been reading and writing on the Troll Tracker original post further casting Johnny Ward in a negative light. For example: "The Banana Republic of East Texas." I like that, and it does seem to fit the bill. On a more serious note, I think that a police investigation of the judiciary in East Texas should be carried out. Whether or not the actions of the courts there were legal, there is now a perception that things may not have been. The only way to clear the air is to launch an independent investigation, and the investigation would fall under criminal law, as interference with the court system is a criminal offense" Posted by: Wayne | March 12, 2008 at 06:02 PM http://thepriorart.typepad.com/the_prior_art/2008/03/judge-wards-son.html ---"My first thought was perhaps Messrs. Ward and Albritton should give this a rest. Then again, if they know they didn't do what they're accused of, I could see how they might want to clear their names." Posted by: Andrew Dhuey | Mar 12, 2008 at 01:46 AM http://www.patentlyo.com/patent/2008/03/troll-tracker-d.html The above quoted comments were found on many distinct sites via Google, Yahoo and Bing, including these: http://www.setexasrecord.com/printer/article.asp?c=209237 http://www.law.com/jsp/article.jsp?id=1205491400004 ----

- 9:34 pm March 17, 2008 - angry dude wrote: " You are missing one *very important* fact, people Rick Frenkel was in charge of that particular patent lawsuit brought against his company and *purposely* made serious and false accusations againts plaintiff's attorneys Enough info to disbar him immediately" The above was found on: http://blogs.wsj.com/law/2008/03/13/revealed-patentblogger-and-employer-sued-for-defamation/

Conclusion The reputation of John Ward has been hurt by the accusations made by the author of Troll Tracker. The accusations may never go away due to the archival and replicable nature of the search engines and both the surface and deep aspects of the Internet. The nature of the Internet is quite different than that of traditional media, such as television, newspapers and magazines, because both human beings and machines create links, duplicate web pages and text, and automatically archive content for posterity, even to the point of replicating content that has itself already been replicated many times. This fact makes the Internet an especially damaging venue for such allegations. My company specializes in re-engineering search engine results by creating new, positive content, attempting to remove negative content, and promoting existing positive content. Due to the extent of the replication, and the fact that the information has been archived, I do not believe my company, or any other, could ever completely and permanently remove the accusations from the Internet. The best my company could do would be to dilute the negative postings with positive information. In this way we might be able to offer counter-balance to the allegations. In my opinion, the optimal solution would be a decision in Mr. Wards favor that would publicly put to rest questions about his character. From a search engine perspective, documents pertaining to Cisco and Mr. Ward would most likely generate significant search engine relevance, and would therefore rise in search engine rankings. In the future, when a person performing due diligence on Mr. Ward discovers the content of

the Troll Tracker posts the decision in Mr. Wards favor would also be discovered in search engine results; this would have the effect of both counterbalance and acquittal.

Addendum Biography: Kent Campbell Kent Campbell is President of KentCampbell.com, an Internet reputation management firm based in Southern California. Mr. Campbell's prior positions include that of CEO, President, Vice President, Creative Director, and General Manager of various Internet service companies. Among these are Obtainium, Exit Media, Evit Caretni, Inc. and Rare Medium, Inc. Mr. Campbell graduated with honors from the Art Center College of Design in Pasadena, California in 1993. Upon graduation he founded Evit Caretni Interactive in Santa Monica, California where he served as President and CEO. Evit Caretni specialized in designing for both traditional and new media, and developing associated web-based marketing programs. Mr. Campbell taught web development and marketing at UCLA Extension during his tenure with Evit Caretni. In 1999, Evit Caretni Interactive was merged with NASDAQ listed Rare Medium, a global web services, incubation, and marketing firm. Mr. Campbell served as Creative Director for Rare Medium's Orange County, and Los Angeles California offices where he managed engagement for global Internet marketing clients. Following his role as regional Director, Mr. Campbell became National Vice President of User Experience Design for Rare Medium. Based in Dallas, Texas, his responsibilities included oversight of national web service delivery, enterprise project management, executive sales support, organizational strategy, for all US offices, as well as Singapore, Canada, Great Britain, and Australia. In addition, Mr. Campbell managed operational oversight of the US western regional offices including Los Angeles, Orange County and San Francisco. In 2001 Mr. Campbell left Rare Medium to consult and take a role as Board Member for numerous companies. He has interest in diverse internet marketing properties including Instant Itineraries - an online travel marketing site and iPhone application, KentCampbell.com, RepRx, and AmericanSEO.com.

Mr. Campbell is active in Rotary, travels worldwide to administer polio vaccinations and represent Rotary, is a Paul Harris Fellow, and lives near Ventura, California with his wife and two young sons. Required Expert Witness Information (i) This document provides a statement of my opinion. (ii) This document contains information used in formation of my opinion. (iii) This document contains supporting exhibits. (iv) My qualifications are reflected in this document. I have not authored and relevant articles in the previous ten years. (v) I have not testified as an expert at trial or by deposition during the past four years. (vi) I am being compensated for my opinion at a rate of $250 per hour.

Kent J. Campbell

Troll Jumps the Gun, Sues Cisco Too Early Search Result Page one of a Google search for "T. Johnny Ward".