Thursday, February 18, 2010

Labels withdraw sanctions motion vs. Nesson over recordings; will Gertner let him off the hook?

The record label plaintiffs have withdrawn their motion for sanctions against Harvard Law School professor Charles Nesson over his practice of making audio recordings of conversations with the opposing counsel and the court and then posting the results to the Internet. The move, just days before a scheduled February 23 hearing on the motion, came after Nesson, counsel to peer-to-peer poster-boy Joel Tenenbaum, reversed course and "confirmed that he has destroyed all copies of these recordings, including any copies that may have been held by his student lawyers, client, and other colleagues, and that he has removed links to these copies from the Internet." Nesson had previously stated that he would not do so, both in open court after the jury's verdict was announced, and again in an August 13, 2009 letter to Judge Nancy Gertner. But despite Nesson's apparent assurances to the contrary, it's clear that as of today, he has still not destroyed all copies. See here, here, here, here, here, here, and here.

While the plaintiffs' motion is now withdrawn, it is far from clear that Judge Gertner herself will view the matter as resolved. Last July 7, she issued an order to show cause in which she said she was "deeply concerned that the Defendant has violated" a court order that the parties not post recordings of depositions to the Internet. And several times, Judge Gertner has made clear her belief that Nesson's recording practices are 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, or to "disclose" such recordings. While I have not researched this point in the First Circuit, I believe that the court has the inherent authority to sanction an attorney for litigation misconduct, even in the absence of a pending motion by the opposing party. Here is the "declaration" Nesson filed in response to the OSC, in which he claimed that he had never been "surreptitious" in his recording.

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