Thursday, July 2, 2009

Nesson temps fate; posts deposition portions to web despite court's 'caution'

In her June 16 order in the Joel Tenenbaum case, Judge Nancy Gertner stated the following:
The defendant is permitted to record the remaining depositions in any manner consistent with the requirements of Fed. R. Civ. P. 30(b)(3). The parties are cautioned, however, that the decision to publicize any recording, on the internet or otherwise, may be regarded as an effort to taint the jury pool in advance of trial. Cf. Paisley Park Enterprises v. Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999) (approving protective order where defendant had repeatedly sought publicity and notoriety by publishing litigation materials online).
Well, yesterday the plaintiffs took the deposition of John Palfrey, one of Tenenbaum's proposed experts. And what did Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, do? You guessed it. Listen here and here.

The recordings Nesson posted are brief and not terribly substantive; the first consists of plaintiffs' attorney Matt Oppenheim walking through basic depo rules, and the second is a discussion between Oppenheim and Palfrey about the propriety of publicizing the depo through Twitter or blog posts. And, strictly speaking, Judge Gertner did not order the parties not to post deposition recordings; she merely "cautioned" them. But posting recordings, after having been admonished repeatedly, is practically daring the court to issue sanctions.

(The sound files Nesson posted directly on his blog are inaccessible (it's not clear whether that's intentional), but they are easily retrieved from the Berkman Center site.)

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