Federal District Judge Nancy Gertner, who is presiding over the record labels' case against accused peer-to-peer infringer Joel Tenenbaum, certainly raised a few eyebrows by including in her Feb. 23 scheduling order the following rather cryptic statement:
An issue has arisen with respect to the recording of counsel communications. The parties are advised that any such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 § 99.
Say what? Has someone been secretly recording the attorneys' conversations? If so, that would be a very serious matter; the Massachusetts statute cited by Judge Gertner provides that anyone who records a conversation without the consent of all participants can be sent to state prison for up to five years.
Well, it turns out to be an interesting story, but apparently not one that involves actual surreptitious recording of phone calls. Here's what happened: the District of Massachusetts Local Rules require that the parties "meet and confer" on various matters, to try to resolve them before involving the court. Typically, this is done over the phone; the parties usually don't agree on much, but they are sometimes able to narrow their differences. These "meet and confers" are private; the judge does not participate, and no court reporter transcribes the conversations.
Well, as anyone who has observed Harvard Law Professor Charles Nesson over the past few months knows, little about his litigation tactics are "typical." Believing, based on Nesson having brought his own recording device to Tenenbaum's deposition and taped the proceedings, that he might also record the meet-and-confers, plaintiffs' counsel asked Nesson whether he planned to tape the phone conversations. Nesson said yes, at which point plaintiffs' counsel told him they did not consent to recording. Nesson argued that the meet-and-confers should be recorded as a teaching tool (he is, after all, a professor); plaintiffs' counsel still objected. At which point Nesson refused to go forward with the meet-and-confers.
So how did Judge Gertner get involved in the recording issue? It appears that the issue was first brought to her attention in a brief filed by plaintiffs Dec. 3, 2008, then in a brief filed by Tenenbaum on Dec. 4, 2008 ("Defendant requested Plaintiffs’ consent to record the conference in order to record the discussion. Plaintiffs refused to allow an audio recording of the conference and accordingly the parties did not verbally confer on the substance of Defendant’s discovery plan."). She was reminded again in another brief on Jan. 12, 2009 ("Defendant's counsel has refused to participate in mandatory meet-and-confer sessions unless those conferences can be recorded and presumably revealed on his website."). So during an informal telephone conference with both sides' attorneys, C&C has learned, Judge Gertner inquired whether Nesson planned to record the call. Amazingly, he said he was, and proceeded to argue why he should be permitted to do so. Judge Gertner was unmoved, and told Nesson in no uncertain terms that he was not to record the call -- a sentiment she repeated in her Feb 23 order.
So it does not appear that Nesson actually went ahead and recorded any telephonic conversations with opposing counsel and the judge -- but not for lack of trying.
(Note: I emailed Nesson twice on Feb. 24 seeking comment but have received no response.)