Monday, March 9, 2009

Gertner denies motion to compel Oppenheim deposition; Judge to Nesson: no more 'frivolous motions'

Federal Judge Nancy Gertner has denied accused peer-to-peer infringer Joel Tenenbaum's "plainly flawed" motion to compel the deposition of recording industry litigator Matt Oppenheim, and in the process harshly rebuked Tenenbaum's counsel, Harvard Law Professor Charles Nesson, for flouting court rules, filing a "frivolous motion[]," and possibly even "undermin[ing]" his client's case.

Agreeing with all of the procedural objections raised by the record label plaintiffs to Tenenbaum's deposition, Judge Gertner accepted plaintiffs' representation that Oppenheim is "an attorney for the Plaintiffs" -- not, as Tenenbaum asserted, a "party" -- and found that Tenenbaum's legal team had failed to follow the Federal Rules of Civil Procedure that govern depositions of distant, non-party witnesses. Judge Gertner also made clear that it's not merely procedure that's at issue here; "any deposition of Mr. Oppenheim invites extremely close scrutiny, given...his role as an attorney for the Plaintiffs" -- a clear reference to the privilege issues that would plague any such deposition, even if properly noticed.

Judge Gertner once again felt it necessary to remind Nesson -- whom she helped recruit as Tenenbaum's attorney -- that he must follow the Federal and District of Massachusetts Local Rules regarding telephonic "meet-and-confers" and may not refuse to participate if not permitted to record them:
The Court notes with displeasure the continuing difficulties with the meet-and-confer requirement imposed by Fed. R. Civ. P. 37(a) and D. Mass. Local Rule 37.1. These Rules require that the Defendant confer in good faith with opposing counsel prior to filing any discovery motion, in an effort to resolve discovery disputes without recourse to the Court, with the purpose of reducing litigation costs for all. Merely informing opposing counsel of the Defendant's intention to file a motion to compel does not meet this modest threshold, even if Oppenheim's deposition had been previously discussed between counsel. As before, the good faith meet-and-confer sessions required by Rule 37 must not be conditioned on Plaintiffs' consent to the recording of those sessions. Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel's teaching style.
Lastly, Gertner -- though she apparently chose not to sanction Nesson at this point -- signaled that he has exhausted her patience and will indeed impose sanctions if he doesn't start following the rules:
More troubling still is the Defendant's filing of a motion to compel premised on a subpoena so clearly inconsistent with Fed. R. Civ. P. 45 and Local Rule 26.2, even after he was alerted to these defects by opposing counsel. While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation -- a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future.
Any bets on whether Gertner would hire Nesson again if she found herself in need of an attorney?


  1. It is indeed unfortunate, but not unexpected, that the judge would eventually admonish counsel for the defendant to treat the matter as a lawsuit and not as a moot court proceeding.

  2. Is it that prof. Nesson doesn't know the rules, or doesn't think he has to follow them?


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