Monday, February 23, 2009

Tenenbaum case: has someone been taping the lawyers?

Lots of action on the Joel Tenenbaum front today:

1) The First Circuit unearthed a 1996 resolution from the First Circuit Judicial Council in which it took an unambiguous anti-cameras-in-the-courtroom stance. The revelation is a bit embarrassing to the attorneys on both sides, the amici, and to District Judge Nancy Gertner -- all of whom appear to have missed the existence of the resolution. The First Circuit gave the parties and amici the opportunity to file additional briefs addressing the 1996 resolution.

2) Tenenbaum filed a reply in support of his motion to compel the deposition of recording industry litigator Matt Oppenheim. Tenenbaum argues that he properly noticed Oppenheim's deposition in Massachusetts because "Oppenheim is himself a plaintiff party to this case." Huh? Oppenheim is not on the caption; he is definitely not a "party." I believe Tenenbaum is trying to say that Oppenheim is an employee of the parties (in which case a simple deposition notice, rather than a third-party subpoena, would be proper). But all that the evidence they cite suggests is that Oppenheim has been acting as an attorney, providing legal advice to the plaintiffs. Whether he ultimately is forced to sit for a deposition or not, virtually all the relevant information he has is likely privileged. (This reply brief is the result of the Tenenbaum legal team's "collaborative lawyering" processs. It doesn't appear to me that anything useful came of it.)

3) Judge Gertner issued a scheduling order addressing the issues raised by the First Circuit's consideration of the labels' efforts to thwart the webcast of an upcoming motion hearing. The court did the following:
  • Bifurcated discovery, with the plaintiffs able to proceed with discovery on their copyright claim immediately, but Tenenbaum barred from conducting discovery until it is determined that his counterclaims are viable.
  • Agreed with the labels that Tenenbaum's counterclaim alleging that the statutory damages provisions of the Copyright Act are unconstitutional is not actually a "counterclaim," but, rather, is actually a defense that may be pled in a motion to dismiss. The court gave Tenenbaum until March 9 to file such a motion.
  • Postponed the hearing on Tenenbaum's motion to amend counterclaims, and the labels' motion to dismiss counterclaims, from Feb. 24 until April 30. This postponement gives the First Circuit the opportunity to first rule on the webcast, though, with the Court of Appeals' oral argument set for April 7, there is no guarantee that it will have issued an opinion by the 30th.
  • Said it would decide the following motions on the papers: Defendant's Motion to Compel the Deposition of Matthew Oppenheim; Plaintiffs' Motion for Sanctions Against Attorney Nesson; Defendant's Motion for Protective Order [Relating to Proposed Computer Inspection]; and Plaintiffs' Motion to Compel Discovery Responses from Defendant Joel Tenenbaum
  • Vacated the March 30 trial date and said the trial would likely occur in June 2009
  • Admonished Tenenbaum's counsel to follow the Federal Rules of Civil Procedure and the Local Rules.  
Lastly, and most intriguingly, the court stated:
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.
Very interesting! Has someone been taping conversations without getting permission from every party to the conversation? That can get you five years in Massachusetts state prison. I'll try to find out more.

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