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Was Troll Tracker a Journalist?

The now infamous case of the anonymous blogger known as Patent Troll Tracker and the lawyer who offered a reward to unmask him is an object lesson in the potential perils and pitfalls of legal blogging. As we all know, the blogger unmasked himself, revealing that he is Rick Frenkel, a lawyer at Cisco. But that was hardly the end of this blogosphere soap opera. First, two Texas lawyers sued Frenkel and Cisco for defamation, a suit that remains pending. Then, lawyers at the firm Niro, Scavone, Haller & Niro -- the firm founded by the lawyer who offered the reward in the first place, Raymond P. Niro -- sought to depose Frenkel in connection with their suspicion that he was in cahoots with the firm Fish & Richardson in its lawsuit against its former partner and now Niro client Scott Harris.

A Gordian knot, to be sure. But IP Law & Business reporter Joe Mullin is shedding some light on the situation through his blog The Prior Art, where he has obtained various pleadings from the federal court in San Jose, Calif., relating to the Niro firm's efforts to depose Frenkel. He has three posts so far based on the documents, with another promised for later today:

  • Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
  • Part Two: Patent Troll Tracker speaks—and vows to return.
  • Part Three: Is the Patent Troll Tracker a reporter?

This last one is particularly interesting. It details Frenkel's efforts to invoke the protection of California's journalist shield law, contending that he is a "non-party lawyer-journalist" and the deposition would require him to testify "regarding confidential sources and unpublished information." Forcing him to testify, Frenkel writes in court papers, "would result in a serious detriment to Frenkel’s future ability to gather and disseminate news." Niro's response, Mullin writes, "sizzles and jumps through Frenkel's various sins, calling him unqualified, unethical, threatening, a corporate stooge for Cisco, a writer of devilish anagrams and haikus, and most importantly, not a reporter." Then Mullin weighs in with his own opinion, which is that Frenkel's blogging most decidedly did qualify him to be considered a reporter:

It's a good question how far the reporter's privilege should be extended; not everyone with a domain name can be allowed to evade a civil subpoena. But I don't think Frenkel's blog was even a close call. There's no doubt in my mind that Frenkel was reporting the news, and will continue to be if and when he re-starts his blog; more than anything, he was my competitor.

I have to agree with Mullin's take on the blogger-as-journalist question. Meanwhile, I recommend that you keep an eye on Mullin's blog for further developments regarding the Patent Troll Tracker.

Posted by Robert J. Ambrogi on May 9, 2008 at 01:36 PM | Permalink | Comments (0)


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