Albritton v. Patent Troll Tracker

Thomas Claburn in InformationWeek recently published an article about the defamation cases by Eastern District of Texas attorney Eric Albritton against Rick Frenkel in his role as the Patent Troll Tracker, Cisco, and others. [Patently-O Discussion of the Case]. According to the article, Albritton has now subpoenaed Google – requesting its help uncovering facts.

The subpoena demands, inter alia, that Google turn over ‘all documents referring or relating to communications to or from (1) Richard Frenkel a/k/a/ “The TrollTraker,” (2) Dennis Crouch, individually and sub.nom. “Patently O,” … (7) the blogs [defined as Patently-O and PatentTrollTracker blogs]” regarding Albritton, the filing of the ESN lawsuit, or related TrollTracker postings.’ The subpoena also requests related Google search records (“all documents referring or relating to user searches of the internet and/or the blogs regarding (1) Eric M. Albritton…”) and other records (“all documents referring or relating to the establishment, creation, maintenance, and financial support for the blogs”).

40 thoughts on “Albritton v. Patent Troll Tracker

  1. Dear Jaoi,

    Can you explain how you made a loss due to TT?

    You cannot make a loss if people who are engaged in a transaction cross-check the facts.

    Everything which is written on the web or elsewhere is valid until someone checks it with the facts.

  2. Thanks, but here’s the thing:

    If any attorney becomes interested, please send your email and phone number to Professor Crouch and ask him to pass it along to Jaoi. That way, Jaoi can contact said attorney. Jaoi and his particulars must remain anonymous.

  3. “I believe Cisco has exposure resulting from what Cisco/TT did. But, of curse, I cannot discuss it openly in a public forum.”

    Then discuss it anonymously. You could even make up a sarcastic username for yourself.

  4. Dear BHR,

    Thanks for your concern. No, nothing related to eBay. But it was a good guess.

    I believe Cisco has exposure resulting from what Cisco/TT did. But, of curse, I cannot discuss it openly in a public forum.

  5. “I’d like to sue Cisco-Troll Tracker because I believe their anonymous activity was a serious contributory factor to my huge loss.”

    It is rather unlikely that you have suffered any recoverable loss as a result of anything that Cisco-Troll Tracker did. If you mean that Troll Tracker’s posts in some way led to the eBay decision and that it was the eBay decision which led to your loss then your claim is completely without legal merit.

  6. Dear Zion,

    Thank you – Just what I need to continue my investigation. Is there any way to get the rest of those TT postings short of discovery?

    I’d like to sue Cisco-Troll Tracker because I believe their anonymous activity was a serious contributory factor to my huge loss.

    Any body interested in representing me on an alternate fee basis?

    Jaoi

  7. “Yet they engage in behavior that, to their peers, demonstrates quite plainly that they are little more than spoiled, vindictive crybabies.”

    Not sure what peers you are referring to…

    incidentally with regard to your “DEFAMER DEFAMER” comment, as a qualified peer, I will say that it demonstrates quite plainly that you are a spoiled vindictive crybaby.

  8. “IMO the only thing that might help Frenkel is that he claims to have received the information “in an anonymous email…Also, these days, it doesn’t seem that there is really such a thing as “an anonymous email.” ”

    Oh, so now according to one interpretation you are asserting publicly that Frenkel is a liar. DEFAMER!!!! DEFAMER!!!!

    /litigious loser off

  9. As much as everyone loves to chatter about cases in which they have no real skin, there is no smoking gun here. The Eastern District of Texas blog had a nice piece explaining that what typically happens in EDTX is that an electronic case file is opened at a date, that by necessity is before the complaint is filed. According to the EDTX blog, the opening of the case file itself is not a legally significant date and is certainly not the official date of the suit, which is entered into the now-open electronic file when the complaint is actually filed. Apparently, there is nothing extraordinary or controversial about this routine administrative procedure.

    IMO the only thing that might help Frenkel is that he claims to have received the information “in an anonymous email.” If such an email never existed, then it will be a more difficult defense. Also, these days, it doesn’t seem that there is really such a thing as “an anonymous email.” It should not be hard to determine whether such an email was ever sent.

  10. Why don’t you tell us Mooney. You are well qualified. Its strange that you have such an interest in this case, or is it.

  11. bgh “I think a little caution is in order about this case. We do not know if the lawyers’ office contacted the Clerk and prompted the change.”

    No, we don’t know because we weren’t there. Frenkel wasn’t there either. Did Frenkel say that he was there? Did Frenkel say that he knew what happened as a matter of fact? No, he didn’t say he knew what happened for a fact. On the contrary, what he wrote was clearly conjecture, albeit a reasonable one.

    “the statement can be read in the way alleged”

    Well, yes, certainly it could be read in the way alleged by a person who desperately wanted to file a defamation suit for the purpose of harassing Frenkel and needed to read something “in the way alleged” for that purpose. Do I know that was the intent of the people filing suit? No. Is it reasonable to surmise that is the intent?

    You tell me. On paper, if we can believe all that the plaintiffs have written about themselves, the plaintiffs and their allies are educated and successful. Yet they engage in behavior that, to their peers, demonstrates quite plainly that they are little more than spoiled, vindictive crybabies.

    Everybody in the world would have forgotten about Frenkel and his non-defamatory explanation of the date change by now were it not for this bizarre stillborn lawsuit. How dumb and/or self-absorbed do you have to be to not realize that?

  12. “In my opinion, Frenkel made no accusation.”

    My sympathies are with Frenkel but the statement can be read in the way alleged.

  13. Malcolm Mooney & big hairy rat,

    Page 7 of the attached complaint [of John Ward] at the following link has the “conspired” language:

    link to thepriorart.typepad.com

    The “conspired” language is contained in the following quote:

    “[I]t’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.”

    Apparently conspiring = conspiring? I don’t think so. In my opinion, this is not defamatory language.

    Also, it was the “court” that was doing the conspiring with a non-practicing entity [who's this?]. Frenkel is not accused of the conspiracy, nor is he accused of altering the docket.

    The basis of his defamation claim is that Frenkel accused Albritton of committed a felony (conspiracy). In my opinion, Frenkel made no accusation.

  14. I reviewed the complaint, and it alleges that Frenkel said Albritton “conspired” with the district court clerk. The complaint is short on statement of facts.

    Anybody have a copy of Frenkel’s comments in full containing the “conspired” language referred to in the complaint (or a link to the statement)?

  15. Malcolm

    I think a little caution is in order about this case. We do not know if the lawyers’ office contacted the Clerk and prompted the change. The change of filing date may have been done independently by the clerk’s office.

    I believe I have read somewhere that the Eastern District has a practice whereby materials can be submitted to the clerk in advance on the basis that they will be given a filing time immediately after midnight on a future date. This whole thing may simply be a result of a clerk double checking and correcting his or her own work.

    If the lawyer’s office did prompt the change in filing date then they should certainly pay costs but I don’t think that dismissal of the suit by itself would be enough to justify professional sanctions.

  16. “Frenkel perhaps needs to say he may have over-reacted in the heat of the moment”

    Huh? There was no over-reaction on Frenkel’s part.

    The only people who over-reacted are the people who ***filed a defamation suit*** based on the publication of a reasonable interpretation of indisputable facts.

    Is there anyone who does NOT think that after this case gets tossed that the plaintiffs should not pay costs and/or be sanctioned? If so, would that person care to step forward and defend that viewpoint? I don’t think it’s a supportable position, frankly, but it might be amusing to see someone try.

  17. Malcolm the quoted passage appears to be the very core of the complaints by Ward and Albritton.

    link to citmedialaw.org

    link to news.justia.com

    It seems to me that the Court Clerk needs to explain fully and fairly what happened and Frenkel perhaps needs to say he may have over-reacted in the heat of the moment and if he caused unwarranted offense he is sorry and Ward and Albritton need to declare themselves satisfied and drop the lawsuits. But what do I know – I’m just a big hairy rat.

  18. Jim

    I take your point although I think that the sentence can reasonably leave the impression that Frenkel had obtained confirmation that the lawyer’s office had contacted the clerk.

    The objective fact is that the filing date was critical and it was changed. The question is whether someone from counsel’s office contacted the clerk to trigger the change / correction. I am not suggesting anything wrong was done. Given the critical importance of the date to the lawyers it seems plausible that the lawyers’ office (even if it was just a secretary or paralegal) called the clerk to complain about the originally assigned filing date before the date was changed / corrected. If that happened, then whichever reading you put on Frenkel’s comment it is a fair one.

  19. bhr, if that is the “core” of the case than these attorneys should be sanctioned for filing a meritless lawsuit for the improper purpose of harassment/revenge (what was it that some notorious loudmouth said about Frenkel being made to feel sorry for something?). Personally I’d have no problem with disbarment under the cirucumstances.

    In fact, in the United States anybody and everybody is free to analyze a set of factual circumstances and express their reasonable viewpoint as to how those circumstances arose.

    How old are the attorneys who filed this suit? Do they have any legal experience? Do they actually even have law degrees? Has anyone checked the public records to see whether they actually passed the bar exam in any state? This sort of nonsense really makes one wonder. I might not even believe that the suit was filed if I hadn’t lived to see Alberto Gonzalez and Torture Yoo dredge a new pond bottom for a certain breed of “lawyers” to feed off.

  20. big hairy rat,

    Your quotation is missing important language of what Frenkel stated. The full quote:

    “One email suggested that ESN’s local counsel called the EDTX court clerk and convinced him/her 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.”

    Your quote is missing the language appearing after the hyphen.

    If you read this, what “exactly happened” (my quotes) was the altering of the court docket date. That is what Frenkel was stating as fact.

    I don’t interpret this statement as Frenkel stating as fact “that ESN’s local counsel called the EDTX court clerk and convinced him/her to change the docket[.]” The e-mail suggested the call, he checked, and he found the docket was altered (which is factually correct from the image he provided).

  21. Malcolm

    It seems to me that the core of the complaint against Frenkel has to be the statement:

    “One email suggested that ESN’s local counsel called the EDTX court clerk and convinced him/her 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”

    Which suggests some sort of inappropriate conduct by counsel and by the court clerk. Of course the problem for Albritton is that the filing date WAS changed to validate the litigation. If there was a phone call from the office of local counsel to the clerk pointing out the “error” in the filing date then Albritton is going to have a very hard time proving any case.

  22. I’m still waiting for someone to provide a single example of a false or defamatory statement made by Frenkel that relates to Albritton, Ray “Get Off My Lawn” Niro, or anybody else.

    The entire thrust of the the complaints by these two whiners appears to be “you can’t afford to question my activities, regardless of the fact that you have every right to question my activities, and besides you questioned my activities anonymously and that’s bad because I am a sensitive, litigious jerk.”

    Remember, these are very wealthy adult men. You would think that they have better things to do with their valuable time. Then again, maybe they get some kind of rush out of making fools out of themselves in public forums.

  23. Messrs. Albritton & Frenkel: you guys really need to sit down and work this out. Call me if you’d like an informal mediator. I’ll do it as a public service. Seriously.

  24. Continuing on the theme of the full disclosure that Mr. Albritton favors, perhaps Mr. Albritton would disclose every letter he has ever written to a client, prospective client or other lawyer about the advantages and disadvantages of litigating in the Eastern District of Texas or appearing if front of specific judges in that District.

  25. I think that Mr. Albritton is going to need a bigger boat (queue theme from Jaws).

    It seems to me that long before he gets to open everyone else’s records Mr. Albritton needs to pull his own pants down and show his billing records and income tax returns so the court can see whether or not he suffered any financial harm from the alleged defamation.

  26. Someone obviously swallowed the blue pill:

    “You take the blue pill, the story ends…you wake up in your bed and believe whatever you want to believe. You take the red pill, you stay in wonderland and I’ll show you how deep the rabbit hole goes.” –Morpheus

    Anytime you need some help on this, Dennis, just let me know. Clear case of a troll trying to rehabilitate their image at the expense of the honorable. Oh, irony of ironies!

  27. Let me see: Based on his statements, Frenkel suggests on Patently-O that filing a patent infringement action before a patent issues might not “play well” in a Connecticut court.

    I don’t know about you, but Frenkel’s statements are much too generous to Albritton. Filing a patent infringement action before the existence of a patent seems to provide colorable proof that Frenkel’s inquiry failed to be reasonable as required by Rule 11. I don’t think that Frenkel’s actions would “play well” in any of the federal district courts.

    Frenkel just can’t make misrepresentations to a court or he’ll subject himself to Rule 11 sanctions.

    Moreover, such misrepresentations would seem to violate the Rules of Professional Conduct. Has anybody filed an ethics complaint with the Texas bar against Albritton for his affirmative yet apparently false representation made to the court?

  28. Couldn’t find the exact case Jim H. described, but here’s a Supreme Court case on point that suggests Albritton will have a difficult burden:

    Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
    Link: link to bc.edu

    The majority opinion of Justice O’Connor said, “Here, we hold that, at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” Id. at 768-69.

  29. Forget what I said about “opinion” statements. My recollection of the followng case (which I found) was not entirely correct:

    link to en.wikipedia.org.

    If any of you on Patently-O want to analyze the statements against the case law (maybe assist in any possible defamation action against DC), here’s a link:

    link to en.wikipedia.org

    By the way, to state that “in my opinion, Albritton is a big, fat liar for filing a patent lawsuit before the patent was issued” might not be covered by Milkovich.

    DC – you have my e-mail if the well-fed Albritton wants to know my identity.

  30. I heard, inter alia, that this guy has stinky pants. Also, that he’s a bad man who doesn’t smile in pictures. When you get a subpoena DC just ask and I’ll send him a mail revealing my secret identity.

  31. A defense based on the First Amendment is probably a certainty.

    Here’s some of the language that probably puts a knot in Albritton’s skirt:

    “On October 18, the Troll Tracker posted what are seemingly his most pointed comments about the case:

    “I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. One email suggested that ESN’s local counsel called the EDTX court clerk and convinced him/her 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. Only the EDTX Court Clerk could have made such changes. . . . This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.”

    In a different post, PTT mentioned that Ward and Albritton represented ESN and that they might not “play well” in a Connecticut court.”

    In my opinion, this is not defamatory speech; rather, it is opinion speech and the author’s conclusions are based upon his antecedent discussion. I know my opinion appears conclusory, but it is based on a USSC court case that I can’t think of at the top of my mind. The USSC case had to do with an editorial in a paper, and if I remember, something to do with a sports coach(?).

  32. “Do courts ever grant such broad demands?”

    Discovery (including e-discovery) doctrine and rules vary by jurisdiction, since the FRCP don’t go into the nitty-gritty. Most courts, however, have some sort of balancing test that weighs at least the burden of production, the necessity of the documents, and the liklihood of success on the merits to decide discovery orders and who bears the costs of production going forward. Non-party discovery tends to be more limited – courts are always wary of witch-hunts.

  33. DC,

    Have you received a subpoena? Has MBHB (presumed gatekeeper of the blog) received a subpoena that you know of?

    [DC COMMENT: Although I was formerly an attorney at MBHB LLP, that firm has never held nor exerted any control or gatekeeping function over Patently-O. Now, MBHB advertises on Patently-O]

  34. Quick, lets all do a Google search for “Albritton” and talk about him some more on this blog to really send his e-discovery bills through the roof!

  35. I smell a First Amendment issue here…

    Who the hell is this guy Albritton to think he can rummage through the files of a non-party? Do courts ever grant such broad demands? And under what conditions?

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