Albritton v. Patent Troll Tracker: Patently-O’s Subpoena

I have now received a nonparty subpoena in Eric Albritton’s defamation case against Cisco and the Patent Troll Tracker. The requests are quite broad. Blog commentators may want to check Request Number 2 that could require disclosure of their information. 

2. All DOCUMENTS REFERRING or RELATING to comments, emails, COMMUNICATIONS or responses to THE BLOGS regarding (1) the integrity, reputation or ability of ERIC M. ALBRITTON; (2) the filing of Civil Action No. 5:07-CV-00156, styled ESN, LLC v. Cisco Systems, Inc., in the United States District Court for the Eastern District of Texas; or (3) the October 16-17, 2007 postings on www.trolltracker.blogspot.com. [File Attachment: albrittonsubpoena.pdf (109 KB)]

In part, this request is seeking information about the identity of anonymous blog commentators and those who have sent me private emails regarding this case. As I have mentioned previously, my blogging service retains additional information regarding the identity of commentators (such as IP address, etc.), and a full response to the subpoena request could include that information. In a letter to Albritton’s attorney, I objected to the subpoena requests for several reasons including the following specific objection to Request Number 2:

Request Number 2 asks about comments on THE BLOGS. Comments are posted on Patently-O and are publicly available at no charge to you. Because these comments are already available online, this request is likewise unduly burdensome and overbroad. Furthermore, most commentators post anonymously with a strong expectation of privacy in their identity. Similarly, I often receive communications sent under the condition and/or expectation of privacy and anonymity. This happens with any reporter – but is especially common in law and politics where we often find negative retribution for speaking out. I strongly support this right of anonymity and do not plan to reveal particular information that could lead to the identity of those sources without a specific court order on the topic. As the Supreme Court recently held, “Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995). Eighth Circuit law supports this ideal – especially as regard to reporters and their sources. In Continental Cablevision, Inc. v. Storer Broadcasting Co., 583 F. Supp. 427, 435 (E.D. Mo. 1984), for instance, the district court held that “news reporters enjoy a qualified privilege, derived from the first amendment guarantee of a free press, to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news. Said privilege may be defeated in a particular case where the party seeking discovery can demonstrate that the testimony, material or information sought is relevant enough, and otherwise unavailable, to outweigh the first amendment interest of the media. A balancing analysis is the benchmark.” You have provided no such balancing.

Time will tell whether a motion to quash will be necessary.

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

25 thoughts on “Albritton v. Patent Troll Tracker: Patently-O’s Subpoena

  1. Chilling Effects is a collaborative archive created by several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. It couldn’t hurt to give them a buzz.

  2. The patently-0 post, noting the filing date and triggering comments giving rise to a disparagement suit, gave more reason to note another recent lawsuit against an anonymous poster. A college student was escorted by security out of a mall because her dress was too short. Later, an anonymous post went up on a forum on the Richmond (KY) Register newspaper’s Web site, which made an allegation about the student’s conduct at the mall. She sued the anonymous poster, and subpoenaed info from the newspaper. The paper had taken down the comment, based on its “policies.” Similar.

  3. Paul

    You are probably right, but you also know that a common litigation tactic is to use discovery in one suit to develop evidence for subsequent suits. Once you get your evidence you can nonsuit your initial suit if it’s a dud. So, the basis of the original suit is not a limiting factor in how much trouble/annoyance/expense a malicious litigator can cause those who are not a party to the initial suit.

    The federal anything-goes discovery rules were crafted by lawyers and judges to promote litigation.

  4. Hard to fault the guy for seeking to discover info that might help his case. If there’s something that helps, or hurts, his case, what’s the downside in turning it over {subject to asserted objections}? As a subpoenaed party, you can assert that the requestor advance the costs of making production, and if he’ll pay for your efforts and agree to some form of protective order, then what’s the downside?

  5. My understanding is that the alleged (accused) defamation is entirely based on a conclusion drawn on the accused blog (that was quickly retracted) from an unusual date on a litigation complaint of public record, and NOT from anything supplied by any blogger or blog site.

  6. Let me add that the blog was allegedly being operated in connection with a party to a lawsuit and allegedly provided the allegedly defamatory commentary allegedly in connection with the lawsuit and the parties or representatives bringing the lawsuit and the court itself.

  7. I can see the subpoena regarding the Troll Tracker blog, however, the thrust of the action in my opinion is that the blog was allegedly being operated in connection with a party to a lawsuit. There is no basis to believe that Dennis or any commentators are parties to any lawsuits that the plaintiff is engaged in and therefore, IMO, the anonymous blogging on third party sites amounts to legitimate protected commentary.

    As a hypothetical, what if there was some evidence regarding the origin of Frenkel’s mysterious email that was the alleged basis of the TT post in question and linking it to a third party blog? Would such evidence form a proper basis to subpoena the third party website and its bloggers?

  8. For more information about this controversial lawsuit against the author of the [formerly very informative, but now stopped] “troll tracker” blog (since apparently not everyone has heard about it yet) see:

    link to thepriorart.typepad.com

    [See also earlier postings on that blog-site]

    {I would be surprised if Google did not strongly object to such a subpeona?]

  9. Welcome to the world of SLAPP suits, Dennis. The American judicial system at it’s absolute best. Which is worse: a SLAPP troll or a patent troll?

    There must be huge jurisdictional issues for a federal court in Texas to try and assert a subpoena duces tecum over a non-party in Missouri. I would be very careful about seeking a protective order or seeking the court’s intervention in any way. Once you evoke to court’s jurisdiction you submit to it.

    What a great time to have a bunch of idealistic law students coming back to school after interning for the ACLU all summer and chomping at the bit to run a SLAPP suit up some disjointed longhorn’s kister. Tell them to look up “in personam.”

    We could organize a anti-SLAPP wiki and all pile on. I’m in.

  10. “Well, I am certain that I’ve never commented on anyone named “EIUC M. ALBIUTTON” so there are no docs from me …”

    There is now.

  11. “If anyone has any CONSTRUCTIVE comments … you should post them or send them directly to Dennis.”

    What, are you Dennis’ attorney now?

  12. Well, I am certain that I’ve never commented on anyone named “EIUC M. ALBIUTTON” so there are no docs from me …

  13. Who is the Eric M. Albfutton mentioned in the subpoena? And who is Eiuc M. Albuitton, also mentioned in the subpoena? Are there any documents relating to communications with the blogs that are about these two individuals (each of whom, let me say, I’m sure are fine, honest, upstanding pillars of the community, and excellent proof readers).

  14. If anyone has any CONSTRUCTIVE comments, such as relevant case law or good examples of motions to quash such broad subpoenas against NON-PARTY news blogs or other media that is merely reporting or posting comments on litigation of others [or other publishing activities of law school professors] you should post them or send them directly to Dennis.

  15. It has been commented that Mr. Albritton’s reputation is now some what tarnished but what of his lawyers for taking the case?

    May we ask the name of his lawyers?

  16. Good luck, you are entirely correct. If they want it they can dig for it, it is all right here and would not take that much of their time! And as others said, the case and things like that subpoena are having far greater weight on his reputation than any official text from this website ever could.

  17. Dennis, you’ve got a free appellate lawyer in me if you get that far. I’m always looking for an excuse to visit New Orleans.

  18. “In Continental Cablevision, Inc. v. Storer Broadcasting Co., 583 F. Supp. 427, 435 (E.D. Mo. 1984), for instance, the district court held that “news reporters enjoy a qualified privilege, derived from the first amendment guarantee of a free press, to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news.”

    B..b…but…Dennis Crouch doesn’t have a journalism degree!

    GET OFF MY LAWN!!!

  19. integrity, reputation or ability

    Correct me if I’m wrong, but one’s reputation and one’s behavior tend to be closely entwined. That is because people tend to make reasonable inferences based on observed behavior.

    Some people are extremely sensitive. Some people are proud. Some people are vengeful. Some people are desperate. Some people are litigious.

    Some people are not.

    Anyone need a scorecard?

  20. It is difficult to understand how your emails or posts to your blog could be relevant to any issue in Albritton’s case.

    I have no knowledge of the integrity, reputation or ability of Mr. Albritton. I assume that he is honest and competent and has a reputation for honesty and competence.

    On the other hand it is my entirely personal view that it is generally a bad idea for lawyers to sue each other and it is also generally a bad idea to expose oneself to cross-examination.

    It will be educational to see how Mr. Albritton’s strategy works out for him. Perhaps I will have to modify my views.

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