- At least some of Nesson's recording was done without the knowledge of plaintiffs' counsel, including portions of the depositions of Tenenbaum and defense expert Johan Pouwelse.
- Contrary to Nesson's assertion, Plaintiffs were not on notice of Mr. Nesson’s intent to record the Pouwelse deposition.
- The court's admonition against posting deposition recordings to the Web applied to all portions of the depos -- not just the substantive parts.
- "Nesson did not deny or respond to the fact that he has repeatedly violated Massachusetts law by recording conversations with Plaintiffs’ counsel without consent."
- "Plaintiffs seek to litigate this case without it becoming a circus. Neither Plaintiffs nor their counsel want to have these recordings (or the still pictures taken without permission at the deposition of Joel Tenenbaum earlier this week) used for any purpose, now or later. There are official transcripts of the proceedings that function to memorialize the case. It is time for a sense of decorum and professionalism to be imposed on a case that seems to be lacking in it."
Plaintiffs Reply Re OSC Re Nesson Recording
For those who may think that the Massachusetts statute requiring all-party consent for recording is toothless or archaic or "gobbledygook," I urge you to read a fascinating case from the Massachusetts Supreme Judicial Court called Commonwealth v. Hyde, 434 Mass 594 (2001). Hyde was pulled over in his Porsche, and he secretly audio-recorded the subsequent encounter with police, which became quite confrontational. All of this took place out in the open on a public street. He later submitted a formal complaint to the police department, presenting his recording as evidence. Bad move. The cops were cleared, and Hyde was charged and convicted of four counts 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, or to "disclose" such recordings. On appeal, the state's high court upheld Hyde's conviction, brushing aside the dissent's concern that, had the Rodney King beating occurred in Massachusetts, the guy who did the videotaping could have ended up in jail instead of hailed as a hero.
Interesting tidbit: the ACLU of Massachusetts filed an amicus brief on behalf of Hyde. On the brief was John Reinstein, who happens to be married to ... federal District Judge Nancy Gertner.