Wednesday, March 18, 2009

Nesson mea culpa: not so 'maxima'

Yesterday I gave Harvard Law Professor Charles Nesson my kudos for the "mea maxima culpa" he issued after Judge Nancy Gertner harshly criticized his conduct in litigating his motion to compel the deposition of recording industry litigator Matt Oppenheim in the Joel Tenenbaum case.

I hereby retract my kudos.

On further reflection -- and on reading Prof. Nesson's own comment to this post here (see 3:53) -- it is now clear that his apology was exceedingly narrow, and that he apologized for precisely none of the faults Judge Gertner found with what she called his "plainly flawed" and "frivolous" motion. Here's what I mean:

Tenenbaum moved to compel Oppenheim's depo. The labels opposed on numerous grounds. Judge Gertner agreed with the labels, and specifically ruled against Tenenbaum on the following grounds:

1) Oppenheim is an attorney -- not a party or a party's employee -- and thus a subpoena under Rule 45, with all its technical requirements (as opposed to a simple notice under Rule 30), is required to demand his attendance at a deposition.

2) The subpoena was not delivered through personal service, as required by Rule 45.

3) The subpoena did not include required witness or mileage fees, as required by Rule 45.

4) The subpoena was not served within the district of the issuing court or within 100 miles of the place specified for the deposition, as required by Rule 45.

5) Under Local Rule 26.2, Tenenbaum was not permitted to conduct discovery of the plaintiffs until he has fulfilled his initial disclosure requirements under Rule 26(a)(1) -- which he hadn't.

Judge Gertner also harshly scored Nesson for failing to meet and confer in good faith as required by Rule 37(a) and Local Rule 37.1, and warned Nesson that his tactics risked harming his client, and were not justified by his professed desire to use this case as a teaching tool (though she did not formally base her denial of the motion on these grounds.)

So did Nesson apologize for any of the above? No! His apology was narrow, grudging, and downright lawyerly:
I made a mistake by not withdrawing my motion to compel Matthew Oppenheim's deposition immediately after the January 22 date had passed. I acknowledge and apologize for this, both to you and to my opponents.
What was significant about Jan. 22? That was the date on which Nesson moved that the Oppenheim depo take place (even though it was actually noticed for Jan. 20). And as Nesson clarified in a comment he left on anti-RIAA litigator Ray Beckerman's blog, the only thing he is apologizing for was not withdrawing the motion after the date on which he (improperly) sought to compel the deposition had passed -- and not for filing a motion that contained all the flaws listed above:
ray, i appreciate your criticism but ask you to note that my motion to compel, which you agree was not frivolous, was a specific request for deposition on the day vacated on judge gertner's calendar by the granting of the stay to accommodate the first circuit. i'm not apologizing for filing it, but rather for not withdrawing it when the january 22 date had passed without resolution of it.
(The author of the comment is listed as "Anonymous," but Nesson confirmed to me that it was indeed he who posted it.) Note that Nesson continues to insist -- despite Judge Gertner's contrary conclusion -- that his motion was not "frivolous." And he's "not apologizing for filing it" (my emphasis). And he's not apologizing for a single one of the five specific faults Judge Gertner found in Nesson's motion, or for the more general complaints about his conduct. Some apology! Mea minima culpa!

But enough with the apology -- or lack thereof. What really counts is how Professor Nesson -- perhaps tempered by his new co-counsel -- actually behaves from here on out.

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