Thursday, June 25, 2009

Tenenbaum: Labels again move to strike John Berry Barlow expert declaration, seek attorneys' fees

Expert disclosures in the Joel Tenenbaum case were due March 30.

Tenenbaum served its disclosure for purported expert John Perry Barlow, the former Grateful Dead lyricist, on April 10 -- ten days late. After the labels claimed that the Barlow report was inadequate, Tenenbaum served a slightly revised (though unsigned) version on May 29. The plaintiffs then moved to strike the Barlow declaration as both late and inadequate, but Judge Nancy Gertner gave Tenenbaum one more shot, allowing him to submit a new Barlow report by June 22.

It appears Tenenbaum's counsel, Harvard Law School professor Charles Nesson, tried to get Barlow to revise his report:

Alas, no new report was forthcoming. Thus the labels have once again moved to strike Barlow's report, and bar him from testifying at trial. In sum:
The Barlow report served on April 10, 2009, and amended on May 29, 2009, fails to satisfy the requirements of Rule 26(a)(2)(B)(i), (ii), or (iv). If allowed, Barlow claims he would testify that (a) the Internet and peer-to-peer technology “allow us to do that which we, as humans, fundamentally need to do: share art,” (b) “the music industry will never be endangered,” and (c) “the recording industry must evolve.” See Exhibit B at 2-3. His report, however, fails to offer any basis or reason for these opinions other than his “personal experiences” and his “position as a public intellectual,” (id. at 1-2), fails to identify a single source of data or other information considered, and fails to list Barlow’s purported qualifications, all of which are required by Rule 26(a)(2). Similarly, the only additions to Barlow’s amended report are bald statements that his “positions and experiences qualify [him] to speak about the fairness of peer-to-peer file sharing in the context of the recording industry and the technological environment in which such actions occur” (Exhibit B at ¶ 1) and that he has no publication that must be disclosed. (Exhibit B at ¶ 9). As explained above, this report does not comply with the requirements of Rule 26(a)(2)(B) because it does not contain a complete statement of all opinions to be expressed, the reasons therefore, or the data or other supporting information considered by the witness in forming the opinion.
The labels tried to get Nesson to withdraw Barlow as an expert, given the failure to serve a new report. Nesson refused (see pages 11-12).

Judge Gertner says her "indulgence is at an end." Granting this motion, including the labels' request for attorneys' fees, would demonstrate that she meant it.

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