Ward v. Cisco Systems, Inc. et al

Filing 25

RESPONSE in Opposition re 24 MOTION for Leave to Supplement the Record Regarding It's Pending Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue filed by John Ward, Jr. (Attachments: # 1 Ex. 1, # 2 Ex. 2, # 3 Ex. 3, # 4 Ex. 4, # 5 Ex. 5, # 6 Ex. 6)(Patton, Nicholas)

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S e l e c t ' P r i n t ' i ny o u r b r o w s e r e n u t o p r i n t t h i s d o c u m e n t . m C o p y r i g h t 2OOaALM Properties/ Inc, All rights reserued. P a g e printed fromr http://www.law,com B a c k to Article

P a t e n t Attorneys Sue Cisco and Blogging H o u s e Lawyer for Defamation

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B r e n d a Sapino Jeffreys, lohn Council and Miriam Rozen 0 3 - 1 7- 2 0 0 8 T h e moral of this story is b ogger beware, at least when it c o r n e sto bloqginganonymouslyabout litigationinvolvingyour employer. B e f o r eCiscoSystemsInc. in-house la!,r'yer RichardFrenkel o u t e d himselfin Februaryas the patent Troll Tracker bloqger, h e posted blog entries in October 2OO7that allegedtwo East T e x a s lawyersconspiredwith the EasternDistrtctClerk'sOffice t o alter the filing date of dn nfringementsuit. That suit was f i l e d againstFrenkel's employer,Cisco. O n Oct. 18, 2007, Frenkel,who was posting anonymouslyat t h a t time, allegedin PatentTroll Tracker that the filing date for E S Nv, Ciscowas changedfrom Oct. 1S, 2007, to Oct. 16, 2 0 0 7 , aftet ESN'slocalcounsel"calledthe EDTXcourt clerk, a n d convincedhim/her to change the docket to reflect an O c t o b e r 16 filing date, rather than the October 15 filing date.,, T h e filing date is significant,Frenkelalleged in the blog, b e c a u s ethe ESNpatent that ts the basis of the suit was not i s s u e duntil Oct. 16. F r e n k e lidentified the local counselon his blog, and allegedin t h e posting-- which is attached as an exhibit in two defamation s u i t s recentlyfiJedagdinst Frenkeland Cisco-- that it's " o u t r a g e o u s "that the EasternDistrict is apparentlyconspiring w i t h ESNto "try to manufacturesubject matterjurisdiction.,,

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F i l i n gan infringementsuit ltke FS|Vafter the stroke of midnight o n the day the u s patent and rrademark offrce issuesa patent gives a praintiff the opportunity to choose l u risd ction. " T h i s is yet another example of the abusrvenature of litigatingpatent cases in the Banana Republicof Eastrexas, F r e n k e lwrote on oct lBinPatentrroll rracker, a utog p,-opulJr'among int""".tuur property litigatorsand those i n t e r e s t e din reports on so-calledpatent troll companiesthat allegedl;buy patents simply to bring infnngementsuits. T h e EasternD strrct is a natlonallyknown forurn for patent litlgation becauseof rules that allow surts to progress s p e e d i l ythrough the court system.

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O n Feb. 23, Frenkel,director of Ip at Cisco,revealedhis tdentjty as the blogger.

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N o w , Frenkeland Ciscoare deFendants two separatedefamatlonsuits filed by the two East Texas lawyers wno in tre l o c a l piaintiffscounselin FS/r'.The suits are attracting attention in Texasand in the Ip blogosphere, not only beca.lse o f the popularityof the PatentTroll Tracker blo9, but becauseone of the lawyers suing Frenkeland Ciscois John ward . 1 r . ,a son of U.S. DistrictJudge T. John Ward who stts in the EasternDistrict. J o h n Ward Jr,, a partner in Ward & Smith in Longview,filed his amendeddefamation petition against San Jose, catif., b a s e dCiscoand Frenkelon Feb. 27, while Eric Albritton of the Albritton Law Firm in Longviewfiied a similar d e f a m a t i o nsuit on March 3 against cisco and Frenkel.Both suits are filed in cregg Cou;ty: ward,s in the 1B8th D i s t r i c tCourt, and Albfltton'stn Countv Court,at Law No. 2_ A l b r i t t o nallegesin his oriqinal petition that Frenkelpublishedstatementson the Internet a eging Atbritton had c o n s p i r e dwith the "clerk of the Ll s District courtforthe EasternDistrictofTexas" to "alter ioJum""tr," f.v t" m a n u f a c t u r esubject matter jurisdiction where none existed."slmilarly, in his first amended petition, ward alLge: F r e n k e lmade "statementsto the effect that Plaintiffhad conspiredwith others to alter the filing date on a civtl c o m p l a i n t "Ward filed in the EasternDistrict of Texas on behalfof a client. L a w y e r sfor Albrittonand ward say their clients allege that Frenkel's assertrons the blog are untrue and defamarory on a n d that he wrote the blog during the courseand scope of his employmentat Cisco. J a m e s Hormes, Henderson, a Texas soro who representsArbritton,says the alegatrons posted on the brog -- the P a t e n trroll rracker blog postingsfor oct. 17 and 18, 2007, are attac'hed as an exhrbitto Atbritton'spetition d a m a g e d i sc i i e n t ' s o o dn a m e . g h " E r i c does a iot of defensework as well as plaintiffspatent work. He has a number ot c ients that are concerneoabout t h l s allegation lt's not as though cisco allegedthat he was careless exercrseo or poor ludgment. The accusatio,'rs t h a t he intentionarJy conspiredto commit a feroniousact," Hormessays. ',tnat's comptetetj ort ot $L gryi ina.arre., r t s rnconsistent with his backgroundand tt's completelvfalse.,, " A lie is equa to a blow," Holmessays "YoLr don't attack a man's reputation.If they don,t like to lrtigatein the Eastern D i s t r i c tof Texas,they need to addressthemselvesto the rules and ihe Legrslature rather than slandera man,s r e p u t a t i o n" . w a r d ' s lawyer, NichoiasPatton,a partner in Patton,Tidwell & schroeder in Texarkana,says Frenkel,spostingsabout h i s cllent on Patentrroll rracker are a "horriblething," and ward had no choice but to sLreto prot"iini, ."p'uiuoon, " T h o s ethings are damaginq.Those kinds of accusations are seen by litera y hundredsof thousandsof people.Those a r e seriousaccusations that you just can't let go unaddressed,,, pation says. ,,There,s t*tn no to t *nulo-Juli. F r e n k e ldid not return a telephonemessage left at his office at cisco. and a computer-generated reply to a messdge s e n t to his work e mail indicatedhe was out of the office. J o h n Earnhardt,a senior manager of media relationsat cisco, says Frenkelwrote the blog independenfly his of JoDat " H e was dojng it on his own. cjsco d]dn't set rt up," Earnhafdt says. "My understanding at some point, there were is p e o p l e ... aware of jt, after he had started it." E a r n h a r d tdeclines discussCisco,spolicy on employeeblogs. to H o w e v e r ,Holmessays the issueof cisco's allegedInvolvement with Frenkel'sblog will be examined in discovery.

F r e n k e lpostedthe blog durinq cisco work hours, Hoimes aileges."He postedabout his own area of responsibilrty. In f a c t ' Fs/v is his case And he did lt all with the knowledge or r'il Ji.".i !Ji"ru'ror," Horrnes aleges. ',Therearc ressons t o be learnedthere." " Y o u ' v egot the cisco folks out there citing Troll rracker as some sort of independentsource on litigation,and it's rnerr o w n guy/ Holmesalleges."That'sgoing to be a source of djscoverv.,, I n his Feb 23 postingin which he identifiedhimself as the writer of the blog, Frenkelwrote that he might continue w r r t r n gthe blog but ltould take some time off, Patentrrolt rract ui ii no* u,"*abre by invrtationonly. He wrote thal h e decidedto make hrs identjtv pubric-b:c.9u:: he nua ."*iu"J un uno-nimouse mait from someone who threaten:d t o out hlm' Priorto Feb 23, Frenkelidentifiedhrmselfas 'Just a lawyer, rnteresteorn patent cases, but not interesreo

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In oublrcitv." I n a statementregardingthe defamationsuits, Ciscowritesl

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T h e parties have mutually agreed to make no comment on the lawsuit in questionat this time. That said, we wou d l j k e to underscore that the comments made in the employee'spersonalblog representedhis own opinions and several o f his commentsare not consistentwith Cisco'sviews. We contlnueto have high regard for the judlciary of the E a s t e r nDistrictof Texas and confidencein the integrity of its judges, P a u l watler, a partner in JacksonWalker in Dallaswho representscisco in the defamation suits, declinescomment. A l b r i t t o n and Ward refer comment to their lawyers. ThestatecourtlitigationdatesbacktoNov.T,2ooT,whenWardfiledJohnwardlr.v.JohnDoe,etal.lnthels8th D i s t r i c tcourt in Gregg county. Ward initiallyfiled a petition to conducta deposition under Texas'Rule cwil or Procedure 202, which says a party may conduct depositionsprjor to fiitng suit. I n January,188th DistrictJudge David Brabham granted a motion allowing ward to take a depositionof an indrvidual a t G o o g l e I n c Pattonsays he hoped the Googledepositionwould revealwho was writing the patent rroll rracker Drog. H o w e v e r ,Patton never took that deposition,becauseFrenkerrevearedhis rdentrty as the broggeron Feb. 23. T w o days later, Ward filed an amended petition in the sutt and changed the style to John Ward lr. v. CiscoSystems Inc,etal ln the amended petit on, ward brings a defamationcausJ of action and aliegesFrenkel knew thainrany p e o p l ewere readrngthe defamatory statements in the brogand cisco was awdre of Frenkel,sbrog activity. " D e f e n d a n tFrenkelhas publiclyadmitted that he engagedin this ac vity wrth the ful knowledgeand consent of his e m p l o y e r Defendantcisco systems, Inc " and becauie of that, ward allegescisco is vicariouslf uno ai.".iiy riuur. ro, t h e intentionaltorts of Frenkel. I n his petitionfiled on l'4arch Albritton also allegesthat Frenkel 3, acted in the course and scope of his employmenrar t h e time Frenkelpublishedthc allegedlydefamatory atut"rn.nta. u" utlges, cisco has done nothrnqsince the p u b t i c a t i o n the statementsto disclaimthem or distance of itself from Fr;kel.,, W a r d and Albrittoneach seek unspecjfied actual and punitivedamages in their petitions. p a t t o n says Frenkel's allegationsin thetlog are not "protectedspeech,,underFirst Amendment iaw. Additionall P a t t o n notes, nothing about the filing of ESN y. Clscowas out of the ordrnary. " A n y b o d ythat knoL'vs rules in the.EasternDistrict the knows that what happeneonere rs exacfly how businessis c o n d u c t e din the EasternDistrict," Pattonsays- In the EasternDistrlct, paiton says, the clerk,soffice will ass gn a case n u m b e r and a judge to a suit 24 hours before it is filed when ru*v".'.uira u tne cterk s office with the request and s e n d s in a cover sheet for a civil suit " o n the 15th thev sent in the civrrcover sheet after they had carJed crerks oftice, requestjnga number. That the p a t e n t was to issueon the next day, the 16th, so they iired at rz:or on bct. 16. There was a mistake by the crerk.s o f f i c e as to dates that was corrected,bythe crerk to rr'o* *r'ut nal t'ufpeneo, patton says. "Nobody made any a t t e m p t to alter a government record.,' H e says an amendedcomplaint in Es/v,v crsco was filed on oct. 16, 2007, srmpryto a ow the plaintiffto attach a c o p y ofthe patent Patton says Frenkelcould havedeterminea tnesuif wasrireo properly bycalting the cterk'soffrc,:, b u t r n s t e a dh e C i s c o a w y e r , , j u sm a d e t h e a c c u s a t i o n , , itn e t l t h blog. E a s t e r nDjstrictclerk David Malands9)lsthere was no conspiracy.However.he says the clerk's office did make ''correctjng a entry" to the firrnqdate of the original petition in Fsi v. caco. maiandsays that at the request of an e m p r o y e eat ArbrittonLaw Firm, the crerk'soffice opened ,,sheri a casei'on oct. 15, 2607, *itn u car""iu',e-unj ,uog" the firing a compraint. of uuLna.uvr tr',ui procedureseffect october unoer ra l 9yle r:slwantingto file a suitspeedv in in 2017, i : w T t r - ! : "1'"y,for at a certain time could make arrangementsin advance with the clerk's ofrice. " A n y t i m e somebodywanted us to hus e Iit] along, we wourd have tried to make sure we pured the Judgeassrgnment, d i d the work, so they courdfile on the time they wanted to fit"," l,tuiunJsays. tte says tne crerk,soffice made those a r r a n g e m e n t son an occasional basjs, and there was no specialprrvilegejranted the local counselin Fs/v. ,,we wouro n a v e done it for anybody," he says. Plaland says new rules adopted in November 2007 give lawyers the ability to file suits electronlcallv the exact at

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m o m e n t they want to fiie, so there's no need to ask the clerk,soffice for asststance. A s i'ialandrelatesit, an employeeat Albritton Law Firm was sitting at her computer around midnight on oct. 15, 2 0 0 7 , waiting for Oct, 16 to file the suit. ''According to her watch, it said 12 ro5 [a.m.], and she mashesthe send button to fire the comprarnt,,, says. he H o w e v e r ,on Oct 16, she noticedthat the docket sheet in FsN showed an oct. 15 date, and she calledthe cterKs o f f i c e , Marandsavs. "she asked us to change it to the 16th, because that was the rntent. In a aunaor,*" a,J u correctrng entry. There was no lll intent,,,Malandsavs. H o l m e ssays his client has a computer-generated recerptfrom the clerk'soffice that shows the complaint was fitec at o n e n n u t e a f l e r m t d n r g ho t O c l . 1 6 . t H o r m e ssays the crerk'soffice did the correctingentry because of "a software or systems tvoe issue.,,

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M a I a n dsays the electronic-filinq svstem at the clerk's office was modified in November2oo7 to allow lawyersto tie at a n exact time more easily, similar to the old days of pdper filing. " w e had a drop box where they had paper fillng The attorney would stand at the drop box until he watched the mer r c h a n g e o m i d n i q h t r w h a t e v e r T h e y w o u r de n s u r et h a t t o ' t h e c r o c ks a i d 1 2 : 0 1 ,a n d i t w o u r ds t a m p r t a t 1 2 : 0 1 ,s o thcy c o u l 0 ensufe they were the first one at the courthouse,,,he recalls. 8 y agreementof the parties,ES/Vv. di:mi:sed without prejudiceIn November2007, and ESN re_fted Lne 9/s::lva^s s u i t o n J a n 3l That suit is assiqnedto u s. DistrictJudg" ouuio ioL'o.. in its infringementsLrit,ESNaleges crsco rs l n f r i n g i n gon a patent it holds related to switchingsystems for communicatrons over a broadbandnetwork. P a t t o n ' who does IP litiqatlonand has read the Patent rroll rracker blog on occasron, says he was offendedwhen he r e a d Frenket's comment ca rng the EasternDistrict the ,,eununu n"prOi.1f f""ur.,, " I t offendedthe helrout of me Thrs is not a Banana Repubric here. I've practrced the djstrict for years up In and y e a r s , and I've never seen anything up here but superbjudg"r,,, ,uy, euiion. c i s c o is a plaintiff,defendantor counter_claimant five in suits pending in the EasternDistrict, accordingto a rev e\ of c a s e sl,stedon the district'selectronicfiting system. None of Cisco,.iuit. ur" before tudge Ward. c h i e f u s DistrlctJudqeThad Heartfieldof the EasternDistrict says the Tro Tracker,scharacterizatron his disln:r of a s a B a n a n a e p u b l i i s , , rd r c u l o u s . " R c H e a r t f i e l dsays the Eeaumontdivision where he sits doesn't attract as many rp casesas the [4arshall and rexarkana d i v i s i o n s 'and he refers further comment.to the three tJ.s. otrtriar;rog"f*no sit ln those divisions.Two of the tfrree , J u d g e ward who sits in Texarkanaand r'larsha| and Judge r"onuro 6uui. who sits rn rjarshaI and ry er -- d d not r e t u r n telephonemessagesleft at their offices. F o l s o m ,who sits in the t4arshall and Texarkanadivisions.says, ,,I have a Crscocase [ES/Vy. Clsco] pending in rr., c o u r t ' and Johnnyward's son is representinqone of the parties, so i piJuo'y shourdn'tsay anythrng,but rt won,t i n f l u e n c emy outlook on matters a bit.

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