Tuesday, June 16, 2009

Gertner slams Nesson: 'The Court's indulgence is at an end'; professor's taping is a 'violation of the law'; Tenenbaum trial moved to July 27

Last fall, Boston federal judge Nancy Gertner convinced Harvard Law School professor Charles Nesson to represent accused peer-to-peer infringer Joel Tenenbaum in a copyright suit brought by the major record labels. Today, I don't think there's any doubt she regrets it.

In an extraordinary rebuke of her own former attorney, Gertner has issued an order unloading on Nesson, and outright accusing him of committing a felony:
The court's indulgence is at an end. Too often...the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected the positions counsel asserts) on the internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that Defendant is accused of file-sharing. In the light of the delays already experienced, and the Defendant's record of treating the court's deadlines liberally, to say the least, he is cautioned that failure to meet the requirements and the time-limits set in this Order may cause him to forfeit crucial elements of his case.
(links added by me). In this passage, Gertner has clearly accused Nesson of violating Massachusetts General Law, Chapter 272, Section 99, which makes it a felony, punishable by up to five years in state prison, to record conversations without the consent of all parties. This is not the first time she has warned Nesson about potential criminal liability; she first mentioned the statute on Feb. 23, 2009, obviously with little effect. (Does a federal judge have an obligation to report a violation of state law to the proper authorities? Just askin'...)

Also in today's order, Judge Gertner:
  • Moved the trial from July 20 to July 27;
  • Permitted very limited discovery into fair use, with no depositions by the defense, but allowing plaintiffs to re-depose Tenenbaum solely on that issue;
  • Refused to exclude Tenenbaum's experts, but required them to submit revised disclosures by June 22;
  • Allowed the use of "internet video conference" for the depositions of proposed Tenenbaum experts Johan Pouwelse and John Perry Barlow;
  • Permitted Tenenbaum to record upcoming depositions as permitted by Rule 30(b)(3), but warned him not to post the recordings to the Internet, lest he "taint the jury pool in advance of trial"; and
  • Granted plaintiffs' motion to compel discovery relating to the defense team's admitted uploading of the very songs at issue in this case to a public web site.
Judge Gertner has warned Nesson again and again and again. And still no sanctions, even for a "violation of the law" -- a felony, no less. Should we really expect this latest rebuke to have any more impact on his tactics than the last few?

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