Back on February 25, I reported that Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, had sought to record an informal telephonic conference among counsel from both sides and Judge Nancy Gertner, but was told "in no uncertain terms that he was not to record the call." I always assumed that Nesson never actually switched on his recorder. For, as Judge Gertner later reminded the parties:
[A]ny such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 § 99.
(That statute provides that anyone who records a conversation without the consent of all participants can be sent to state prison for up to five years. To be clear: I express no opinion here whether Professor Nesson violated the statute.) Well, it turns out that my assumption was incorrect. Nesson did have his recorder running from the beginning of the conference call. And he did record the first 2 minutes, 25 seconds of the call -- right up to the point Judge Gertner finally convinced him to shut his recorder off.
So what did Nesson do with the recording? Discard it? Erase it? Turn it over to the court? Of course not! Nesson made it part of his evidence class' final exam! And now he has posted the exam questions (recording of Judge Gertner and opposing counsel included) to his blog, along with 2 of the top answers:
And how does the recording relate to the law of evidence? (Don't ask me -- I didn't go to Harvard Law School!) The first exam question consists of 2 audio recordings, followed by: "The question: Of what is this evidence?" The first .mp3 is some sort of remix of a man's voice with the kind of music you hear in the lobby of a W Hotel. (I have no idea what that's about. None.) The second .mp3 is the telephone conference with Nesson, the labels' lawyers (Daniel Cloherty, Timothy Reynolds, and Matt Oppenheim) and Judge Gertner.
After introductions, Judge Gertner opens the call by announcing, "This is an informal conference. I hope that no one is recording this. Am I right?"
Nesson: "No, you are not right, Your Honor. There is a recorder going in my offce, and I have approximately 20 students present in my office, listening."
Judge Gertner: "Your students can be present, but I don't want a recording.... Your students can listen, but it should not be recorded." Long. Pause. "OK?"
Nesson: "I'd.... I feel bad about that. I truly do, because in some sense this is all about the Net being present in the court and being able to litigate a case in a way that can be open."
Judge Gertner: "I completely appreciate that. But there are moments of informality, however.... What is not fair is that one party record, and no one else does. I appreciate your concerns, Mr. Nesson, as you know. But under these circumstances, if you want to have a formal hearing, then we would suspend now, and go into the courtroom, and I would get my court reporter."
Nesson: "I take your point, and I accede."
Judge Gertner: "OK. All right. Then I have some questions..."
The recording ends there.
I report. (Thank goodness for Bartnicki v. Vopper!) You decide: "Of what is this evidence?"