Tuesday, July 7, 2009

Court issues OSC re Nesson recording; cites apparent 'blatant disregard of a court order'

Indicating "deep[] concern" that Harvard Law School Professor Charles Nesson has violated two court orders by recording depositions in the Joel Tenenbaum case and then posting them to the Internet, Judge Nancy Gertner has ordered Nesson to show cause by this Thursday why he or Tenenbaum "should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case":
Judge Nancy Gertner: Electronic ORDER entered; "The Court is deeply concerned that the Defendant has violated the Court's June 16, 2009 Order [850] as well as the Court's oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that "recording" the upcoming deposition did not mean "posting it on the internet," to which Mr. Nesson replied, "Okay. Thank you." Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case." (Gaudet, Jennifer) [link to June 16 order added by C&C; URLs re .mp3s were in original]
In layman's terms: Gertner has tentatively concluded that Nesson "blatant[ly]" violated her court orders, and is giving him a chance to explain why she should not impose sanctions (before she likely does exactly that). A perfect chance for Gertner to prove that her "indulgence is at an end."

For more on Nesson's history of recording opposing counsel and the court, without their knowledge or permission, see here and here. Trial remains set for July 27.

(Lede corrected to indicate sanctions may be directed at Tenenbaum "or his counsel.")

UPDATE: Several commenters have suggested it would be unfair to sanction Joel Tenenbaum himself for Nesson's recording habits. I agree that Nesson bears primary responsibility for what he has done. But two points to consider. First, Tenenbaum has enthusiastically embraced Nesson's tactics. And second, according to Nesson, "I represent him. I am him. We are one." That doesn't leave a lot of daylight between the two, does it?

UPDATE II: Nesson has posted on his blog a defense of his conduct:
At no point have i been surreptitious. the issue is not “secret” recording but “unconsented.” i put the recorder on the table red light on. i responded that the phone conference with court and opposing counsel with my twenty students present was being recorded and put my objections on the digital record before turning the recorder off. Without a digital record the event is lost to cyberspace.
RIAA was most certainly on notice that I was planning to record [the Pouwelse deposition]; that’s what our oral argument before the court and the court’s ruling was about.
Plaintiffs are mistaken when they assert in their brief that the recording of the Palfrey deposition was posted “on both [my] internet blog and the Berkman Center’s website”. The URL to which they direct the court, http://cyber.law.harvard.edu/~nesson/, is webspace I use for file storage that is neither reviewed nor endorsed by the Berkman Center; the files therein are unlinked to by any Berkman Center website. The same is true of my blog at http://blogs.law.harvard.edu/nesson, a website hosted by, but not curated, reviewed, or endorsed by the Berkman Center.
The portions of the Palfrey deposition posted on my website relate to deposition instructions and Mr. Oppenheim’s objection to my twittering. They in no way relate to what Mr. Oppenheim considers to be the substance of the case, and provide no basis whatever for imagining that the posting would taint the jury pool.
One question: How were the plaintiffs' attorneys supposed to know about the "red light" on Nesson's recording device when they were in their own offices, miles away from Nesson and his students, while participating in the conference call with Judge Gertner?


  1. It's frankly fascinating that a man revered by some to be so far ahead of is time is in this instance of lawyering so clearly out of his depth.

  2. Clearly, Nesson thinks that the rules don't apply to him and that he can record and distribute whatever he pleases. The only way to correct such behavior is to start dropping the hammer. I feel some sanctions coming on!

  3. I honestly have no idea where this is going to go. Its interesting to have an OSC that seems to be on the papers--most Judges have a hearing so they can call the attorney on the carpet. I think Judge Gertner desperately does not want to issue sanctions; no question she could have many times in the past and didn't because of what she perceives as an inequitable situation. So, I wouldn't be shocked if she issues sanctions, doesn't issue them, or tries to come up with something creative. Maybe she'll strike something as punishment that she was likely to strike anyway.
    The other interesting question is...in almost all OSC's that I have witnessed, the Judge gives attorneys' fees to the party that brought the issue to her attention. What if that amount here is oh...$4,000 or whatever Tenenbaum could have settled for. If the Judge says, "Defendant Tenenbaum (as opposed to Nesson personally), you have one week to pay $4,000 to the other side's attorney's fees as sanctions," that is almost unappealable. If in that week, the record labels say, "ok, Joel, we will settle for $5,000 inclusive of the sanctions," what will he do? My guess is he will say no, which again, is just wacky.

  4. This seems pretty outrageous that the Defendant is ordered to show cause when it is clearly the actions of his Counsel. And let's not forget who sought Counsel for the previously unrepresented Defendant - the Judge herself. What is the Defendant meant to do, sack the representation the Court arranged for him?
    - MB

  5. Actually, he can and should instruct his counsel to quit playing fast and loose with the rules...instead of heaping praise on his website about his counsel's "unconventional" approach.

  6. Long-time reader, first-time commenter. I know you as a careful parser, Ben, and so I'm surprised you didn't pick up on the point of Gertner's concern. She is concerned that portions of the Palfrey deposition were posted on websites in violation of her Order. The idea that Prof. Nesson's conduct on the telephonic hearing has bearing on this narrowly tailored Order to Show Cause is a rhetorical red herring, as concerning the 'surreptitiousness' of his conduct that forms part of the OSC's substance.

  7. @Anonymous 10:00:

    You are certainly correct that the OSC focuses on the posting of portions of the Palfrey depo. And I don't think I suggested otherwise. But, given the broader scope of the plaintiffs' motion, and Judge Gertner's previous comments on Nesson's recordings, which she referenced by noting that it is an "issue that the Court has addressed repeatedly in this case," I do think the other instances of his recording will play a role in her decision whether to sanction him, and, if so, how harshly.

  8. I like the part where being told NOT to do something should be considered a notice that you're going to do it!

  9. Ben,
    This may deserve its own fresh post: Nesson is twittering during the Tenenbaum deposition and says on those updates that he is recording the deposition over Oppenheim's objections. HOW, I repeat, HOW, do you continue to record after a Judge has issued an OSC? Forget monetary sanctions. At this point, the Judge should seriously consider referring the case to Mass. authorities and the Mass. bar, as well as locking him up for contempt.

  10. Seems to me that Nesson's plan is to get himself locked up, then claim that the recording industry's pet judge kicked him out of court for trying to provide the unadulterated truth to the general public.

    I don't agree with any part of that, but it's the story I expect to see him try to sell.

  11. @DensityDuck:

    You seem to be aware of this, but for those who may not have followed this case as closely:

    1) Judge Gertner recruited Nesson to be Tenenbaum's lawyer.

    2) Judge Gertner and Nesson go way, way back -- he served as her attorney in a subpoena dispute in the mid-80s.

    3) Judge Gertner has repeatedly and clearly stated her position that she wishes the labels had never brought this lawsuit (even though she has said it is legally sound).

    In other words, by no stretch of the imagination is she the "recording industry's pet judge."

  12. Ben -

    I think I understand what DensityDuck was getting at. He/she wasn't necessarily saying that the judge actually is biased toward plaintiffs, but rather elaborating on what they feel is Nesson's ulterior motives.

    I believe the intimation is that Nesson is purposefully flouting the rules and the law in order to either have his case prejudiced and/or get locked up or sanctioned for contempt in order to legitimize his crusade that the plaintiffs and the justice system is preventing the free flow of information.

    That, however, would presume that any of Nesson's actions were premised on logical thought, which as his behavior has evidenced throughout this litigation, seems to be a presumption that is waning by the minute.

  13. Dear all,
    Anonymous correctly identified Nesson's motivation in his post of July 9 (1:02AM!) above; specifically that it is a provocation to "legitimize his crusade".

    I would be a little more specific. Nesson's behaviour is comprehensible if he thinks he can ultimately win a dispute with the judge.

    He is probably correct to state that the recordings were not surreptitious; he made a great deal of noise about what was happening - see his point (2). For that reason, it doesn't matter that he doesn't cite case law in support - he wants to be sanctioned so he can appeal, thereby creating such a case.

    The laws that he is alleged to have violated are Judge Gertner's court order and the MGL cited above. I can see why Nesson might think he can win such an argument, in each case.

    The first (court order) is subject to judicial review, and the second (MGL), as I read it, may not be applicable at all, simply because as an attorney for the defence Nesson is an officer of the court, and the law as written doesn't appear to provide for such a case.

  14. I have been following Nesson's conduct with interest. If this happened in the UK, he would be thrown out of court. I am surprised Gertner has put up with it for so long. Will be interested to see what cost sanctions the Judge will impose when it comes to costs. As a Judge said you me once, 'we just can't have people going around, having a complete disregard for legal procedure'.

  15. I'm not sure how storing the recording on a publicly inaccessbile web server is the same as posting it "on the internet". You people clearly do not understand IT infrastructure and security, much less you're taking the matter far too seriously. "Oh no, some students learned about a Harvard Law Professor's involvement in a court case! How dare he use a recording for educational purposes!"

  16. @Anonymous:

    Nesson posted the recordings to his blog as well. And the recordings were made in arguable violation of a Massachusetts criminal statute.

  17. Picked the wrong lawyer didn't he? Lost big time. His actions were not in the best interests of his client. The details of whether or not he should have been sanctioned strike me as beside the point. If the Judge has to ask a lawyer to defend why he should not be sanctioned regarding an issue which is not central to the case at hand, then obviously that Lawyer is putting his grandstanding above the outcome of the case he is arguing.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.