Friday, August 21, 2009

Nesson to court: I won't remove recordings from web; sanctions issue remains alive

In a letter dated August 13 but made available only this week, Harvard Law School professor Charles Nesson has told the judge in the Joel Tenenbaum case that he will continue to post to the web unauthorized audio recordings he made of the judge and opposing counsel and will use them for "teaching the lessons to be learned from the litigation."
Nesson Letter To Gertner Re Recordings 8.13.09

Nesson's recording practices, which Judge Nancy Gertner has termed a "violation of the law" (a reference to 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), remain the subject of a pending sanctions motion filed by the record label plaintiffs July 6. On July 7, Judge Gertner issued an Order to Show Cause regarding Nesson's recording, requiring him to explain why he "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." Here's the "declaration" that Nesson filed in response to the OSC.

In a July 31 colloquy immediately after the jury in the case handed down a $675,000 verdict in favor of the plaintiffs, they indicated that they were willing to withdraw their sanctions motion if Nesson would destroy all copies of the unauthorized recordings. But Nesson has refused, and his August 13 letter indicates that he intends to continue to use them for his purposes.

Judge Gertner could rule on the sanctions motion at any time.

1 comment:

  1. If the sanctions are in response to his intent to use these recordings for political purposes[*], which he makes clear here, then in your mind should this draw 1st Amendment protection? Follow up, do you think it does in our current legal juris prudence.

    [*]Ostensibly, the sanctions could be for violation of this or that court rule or just the court order; but once she got the letter it becomes much more convoluted which she would actually be sanctioning and in my mind there should be an assumption that the impermissible reason is being used given the amount of discretion judges have.


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