You leave town for a couple of days to watch a shuttle launch with your kids and everybody loses their mind...
I was made aware of the Ward v. Cisco case filed against Cisco & Rick Frenkel last week when I was approached about it by a reporter. In reading the various posts to prepare for the interview I noticed something I hadn't before - that the October 16 posts that were made the basis of the defamation suit were against lawyers who had sued Cisco. At the time none of us knew that TrollTracker was a Cisco employee, and thus an employee of the party that had just been sued, commenting on the tactics of the lawyers who had just sued his company. (Incidentally, that's one of the problems with anonymous blogging - unlike the rest of us, the interests and motivations of the blogger are not apparent. Would sure have been relevant to me to know that these attacks were coming from an employee of the defendant).
Readers will recall that right after that post came out I posted on it with a comment about what it looked to me had happened - see They Did What With My Filing? citing some clerk's offices procedures that made me think that a mistake by the clerk';s office was a lot more likely than lawyers changing the filing dates on a complaint. I talked to one of the lawyers about it a few days later and he confirmed what had happened - the shell of the case had been set up in the court's ECF system on October 15, and then on October 16 the complaint was uploaded, which is the act of "filing" under FRCP 3. (My speculation that Cisco might have managed to file a dec action before the complaint was uploaded the next day since the shell was available online did turn out to be unfounded - but would have been a really cool twist to an already fascinating fact situation). But all the talk about the dates being changed on the complaint turned out to just be hot air. The filing date of the complaint was not altered - the clerk's office's marking down the filing date on the docket as the date the shell was created was corrected to track the date of the actual filing of the complaint. And recall that Cisco itself never even raised this issue in the case as you'd expect if it was true, because the potential upside for them. That more than anything indicates that there was nothing untoward about the filing.
In what now looks like a remarkable feat of prescience, I ended that post with this statement "I'm just morbidly curious to see how it turns out, because this is
exactly the nightmare scenario we actually discussed in a local rules
committee meeting three months ago, and designed the proposed new rules
to prevent. I can hardly wait to see how it comes out!" I have to admit, I never saw this happening, but I'm not surprised - accusing lawyers of changing the dates on court filings is a serious, serious charge, and a quick look at the filings here makes clear that this was the clerk's office correcting their misdating an entry referring to the complaint on the docket - the time the complaint was actually filed was never in doubt, and never changed.
I look forward to seeing how this plays out. I'm pulling my O'Connor's Cause of Action to check the elements for a defamation claim right now (p. 453 of 2007 ed.)
NOTE: After reading the IPLaw360 article, and reviewing a complaint and NEF forwarded to me by a reader, as well as clerk of court Dave Maland's comments to Texas Lawyer it looks like the court's system put 10/15 on the complaint's document header not because that was the filing date, but because that's when the docket entry was composed. The "electronic document stamp" for the complaint and its attachments contained on the NEF (not the header of the complaint - that's just an optional document ID that attorneys can turn on or off under their "preferences" menu in CM/ECF) all show 10/16, as does the clerk's office's "logged transactions" in the case, which records a date and time for the filing of the complaint of 10/16. This is an important point - the discussion about "filing stamps" being changed is incorrect - the "electronic filing stamp" is not the header on the document - it is on the NEF. The former can be changed, and was by the clerk's office to match the actual filing date since everyone now knows that the two may not be the same thing when you're filing close to midnight. But both the notice of electronic filing (NEF) and the logged transactions in the case (both of which I've now seen) both reflect filing dates - and times - on 10/16.
