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A former lawyer at Cisco Systems, Inc., admits he got in trouble for a blog post in which he called the federal judicial district in East Texas a "banana republic." Rick Frenkel says his boss, Cisco GC Mark Chandler, was "not very happy" about the remark.

Frenkel delivered his confession while testifying in a defamation suit brought by Eric Albritton, a Texas-based plaintiffs attorney. Albritton claimed that he was the subject of false accusations on Frenkel's blog, and filed suit against both Cisco and Frenkel. The case ended in a confidential settlement on September 21, but not before each side got to pre­sent their version of events during four days of testimony.

At issue were two items posted in October 2007 to Patent Troll Tracker, a blog that Frenkel wrote anonymously while employed at Cisco. In the posts, Frenkel discussed a patent infringement suit filed by ESN LLC against Cisco in the Eastern District of Texas. Albritton, one of ESN's attorneys, claimed that Frenkel's posts accused him of a felony by alleging that Albritton "conspired" with a courthouse clerk to change a critical date on a docket in the suit. Albritton responded by filing a defamation suit against Cisco and Frenkel in the Eastern District.

When Frenkel took the stand, he insisted that his posts weren't defamatory. He explained that he was outraged that the date change in the ESN case was made without a motion being filed. "I used words that were strong," he said, "but I sure didn't mean to hurt anyone by it." He apologized for referring to the Eastern District as a "banana republic," and noted that he took the phrase off his blog after 24 hours.

Frenkel left Cisco in August 2008 to become an of counsel at Wilson Sonsini Goodrich & Rosati. Nicholas Patton, who represented Albritton, asked Frenkel if the blog "incident" and ensuing lawsuits had anything to do with him seeking other employment. "In a small way, yes," Frenkel answered.

"You were getting ready to get fired, weren't you?" asked Patton.

"No. They told me that wasn't going to happen," Frenkel said, adding that he wasn't reprimanded by Cisco for his blogging. Frenkel also testified that he wouldn't have had the financial resources to defend himself against Albritton's libel lawsuit if it weren't for Cisco footing his defense bill.

Later, Patton asked Frenkel about why he chose to do his blogging anonymously. Even if people were trying to discover Frenkel's identity, Patton asked, "why would you care?"

"When I originally started the blog, I was worried, because I was blogging about patent trolls," Frenkel answered. "These are people who make money for a living suing other people. When you write about [them], you get sued. That's why I was anonymous."

Frenkel said that only a few legal staff at Cisco now have access to his blog. And they only can read it because of a "litigation hold" that's been placed on it, because of the defamation cases. "Once this is over," he added, "it's gone."

The parties settled the case shortly after Judge Richard Schell ruled that jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win punitive damages from the tech giant.

Schell had ruled earlier during the trial that Albritton was a private figure, and could therefore win his case by proving that Cisco and Frenkel had been negligent. But Schell later ruled that while Albritton was indeed a private figure, Frenkel's blogging was about an issue of public concern—the work of the court clerk's office—which meant that Albritton had to meet the higher standard of "actual malice" in order to qualify for punitive damages.

A second defamation lawsuit has been brought against Cisco (but not Frenkel) by T. John "Johnny" Ward, Jr, another East Texas lawyer representing ESN in its patent suit. It is scheduled for trial in early 2010. The ESN v. Cisco suit that launched the dispute also remains active. 

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