Saturday, April 11, 2009

Tenenbaum's Rule 26 disclosures and the limits of 'radical transparency'

The release by Joel Tenenbaum's legal team of John Perry Barlow's expert disclosure got me thinking: where are the others?

Federal Rule of Civil Procedure 26(a) requires parties to disclose a raft of information to the other side, including information about proposed expert testimony. These disclosures need only be served on the opposing party; they are not required to be filed with the court or otherwise be made public (though there is generally no bar to public dissemination). Tenenbaum's team said last November that they planned to call 8 experts: John Palfrey, Barlow, Johan Pouwelse, Wendy Seltzer, Lawrence Lessig, Andrew Grant, Terry Fisher, and Jonathan Zittrain. Judge Gertner ordered that parties make their Rule 26(a) disclosures on plaintiffs' affirmative claims by March 30. (Disclosures from rebuttal experts aren't due until May 1, but the only one of the 8 experts identified by Tenenbaum as a rebuttal expert was Pouwelse.)

And yet the only expert disclosure Tenenbaum's team released was Barlow's. Are the other experts still on board? Were they spooked off by this? Did they prepare expert disclosures that the team has decided not to release? Are there limits to "radical transparency"?

1 comment:

  1. And why haven't they been disclosed given the waiver that's already occurred on this issue?


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