Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Dennis Crouch at Patently-O is reporting that Cisco has amended its employee blogging policy to require that any Cisco employee blogging about issues involving or related to Cisco identify themselves as a Cisco employee and provide a disclaimer that the opinions are those of the employee alone and not necessarily Cisco.  This is a reasonable policy.  It provides Cisco's employees the freedom to blog while protecting both Cisco and its employees.  And it prevents future occurences of the mistake Troll Tracker made (anonymously commenting on cases his employer was involved in), as I discussed in my post on anonymous blogging last week, click here for the post.

Cisco also told Crouch that Troll Tracker would be free to continue blogging, presumably as long as he follows the policy.  Hopefully, that means that Troll Tracker will return to the patent litigation conversation soon, although it is easy to believe that this experience may have soured him on blogging or changed his voice substantially.  Here is Cisco's explanation of Troll Tracker's status from Cisco's official blog, The Platform:

As an employee, Rick is free to continue his personal blog, Patent Troll Tracker, in compliance with the revised policy. Rick has many fans who appreciate the information he collects and disseminates on patent litigation trends and recognize his blog as an important voice in the on-going national dialogue on patent issues.

IP Law360 (subscription required) has a detailed article this morning outlining Troll Tracker's history, including several quotes from Ray Niro of Niro Scavone who received substantial media attention after offering a reward for Troll Tracker's identity.  Niro reportedly likened Cisco's policy to "repairing a sidewalk after someone was hurt" and said that some of Troll Tracker's statements were "hurtful, harmful and, in many cases, 100% inaccurate."  According to the article, Niro plans to depose Troll Tracker in Illinois Computer Research, LLC v. Fish & Richardson, No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.) -- click here to read more about the case in the Blog's archives.

Another note on anonymous blogging and commenting, Rob LaGatta at LexBlog addressed the Troll Tracker situation and my anonymous blogging post last week with an important point, click here for Rob's post.  Anonymous blogging and commenting is a relatively small part of legal blogging and most anonymous material is not problematic.  It is easy to get side-tracked by the occasional offensive anonymous content.  But the vast majority of legal blogs operate without problems with either unprofessional or anonymous content.

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There has been a lot of coverage of Troll Tracker's recently disclosed identity.* Troll Tracker ended his anonymity a few weeks ago and now faces a libel law suit along with his employer, Cisco, based upon statements he made about a case involving Cisco -- this is one of the many reasons I do not write about cases that my firm or I are involved in.

I did not intend to weigh in on this story because there was not much to add (see below for links to some of the best coverage). But then I read Joe Hosteny's March 2008 IP Today article – click here for the article -- about anonymous blogging and anonymous commenting. Hosteny is a partner in the Niro Scavone firm, a firm that was often a focus of Troll Tracker's posts. I have not always seen eye to eye with Hosteny in the courtroom, but I found his article both very good and thought provoking.

Hosteny raises real concerns about how the anger surrounding the non-practicing entity dispute has gotten out of hand. Death threats over patent litigation (even assuming they are idle threats) cannot be tolerated. These threats make me question whether the patent litigation bar is maintaining the levels of civility and sanity required by our professional standards.

Violent threats and, more broadly, incivility have no more place in the realm of legal blogs than in the legal system. But it does not follow that anonymous blogging and commenting are inherently bad – the issue is more complex than that. Lots of electrons have been spilled over the pros and cons of anonymous blogging – blog guru Kevin O'Keefe is no fan of anonymous blogging, whereas the anonymous editor of Blawg Review provides a great service to both the legal and the blogging communities with the weekly Blawg Review, despite his anonymity.

Anonymous blogging is not the problem. The problem is with anonymous bloggers who believe that anonymity allows them to comment on cases involving themselves or their clients , or to post threatening comments (Troll Tracker, of course, never posted any threats that I am aware of). If Troll Tracker had not blogged about his client's case and if he had stuck to the verifiable facts, he likely would not have gotten sued.

Similarly, anonymous commenting is not the problem if legal bloggers, including Troll Tracker, monitored and approved comments before** they went live, the death threats against Niro never would have been published. I moderate the comments to this Blog and, as a result, angry rants against a judge or an attorney (none have been violent) do not make it on the Blog. And that anonymity may have provided the writer with false courage. But I prevent that, and so can any blogger, by acting as a gatekeeper.

Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.

As promised above, for more coverage of Troll Tracker and the defamation suit, see:

E.D. Texas Blog

IP Law360 (subscription required, but a very thorough history)

Patently O -- discussing a related federal suit filed in the District of Arkansas, including a link to the complaint.

Prior Art Blog -- detailing the history of the suit and here and here on other aspects of the story as well.

WSJ Law Blog

[Update]:  Blawg Review #151 at Lex Ferenda was just updated discussing this post.

* There are no Troll Tracker links because the site is currently either down or subscriber only.

**  Troll Tracker did remove violent and offensive comments, but only after they were posted and he became aware of them.

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In January, Cisco's General Counsel Mark Chandler gave a speech at Northwestern's Securities Regulation Institute that made major headlines.  Because several in-house friends and colleagues have mentioned it to me recently, I thought it was worth a post.  Anyone involved in the private practice of law should take the time to read it.  It highlights an issue that is critical to achieving a client's desired results and to developing a strong relationship between a client and its outside counsel -- aligning the interests of the counsel to those of the client.  Chandler's speech resonates with me because when I was in-house, I struggled to align my outside counsel's interests with those of my company.  It seems that it should be an easy task, but many outside counsel do not get it. 

Here is an excerpt from the speech:

From the law firm think perspective, “sales” too often means a one to one relationship with a lawyer who bills by the hour. As a client, I can tell you what I want to buy is access to information, strategy, and negotiation, and, in the case of litigation, to courtroom skill as well.

There’s a fundamental misalignment at work here. Law firms cannot afford to own the business risks of their clients, have a lot of employees to pay and also have to allocate the limited resources of extraordinary star partners. On the other hand, we clients want access to information and counseling and want to pay for value received. Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour.

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F]irst, winners will be those who are able to standardize services to meet clients’ cost management and predictability needs where very good is good enough. Second, those who can differentiate themselves by providing the top notch of customized services, where that is needed, will also win. 

As you can see, it is very provactive.  Private practitioners should read the speech, I can assure you your clients are reading it.  For further discussion and analysis check out:

WSJ Law Blog

Legal Blog Watch

shlep:  the Self-Help Law ExPress

My Shingle

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