Thursday, January 22, 2009

Labels to Nesson: 'Go retake Civ. Pro. Read the Local Rules. And give us money.'

The record labels have filed their opposition to Joel Tenenbaum's legal team's “Conditional Motion to Compel Deposition of Matthew Oppenheim.” And, as previously reported (second-hand, via Twitter -- can you get any more Web. 2.0?), they are asking for sanctions in the form of attorneys' fees for having to fight off Tenenbaum's efforts to conduct a circus, rather than a valid legal defense.

As I've explained, Tenenbaum wants to depose Oppenheim, who has represented record labels and the RIAA in numerous litigations over the past decade. And they want to do it in a big auditorium at Harvard Law School. So why do the labels think the deposition shouldn't happen? In layman's terms: because Tenenbaum's team has broken just about every relevant rule in the book.

In lawyers' terms, here's what the labels' attorneys say:
First, Defendant failed to confer with Plaintiffs regarding the Motion as required by Rule 37 and by the Local Rules of the District of Massachusetts. This alone requires that the Motion be denied. Fed. R. Civ. P. 37(a)(2)(B).

Second, Defendant has not noticed any deposition for January 22 and has failed to issue a valid subpoena for any deposition. Since Defendant has neither noticed a deposition for January 22 nor subpoenaed anyone for that date, there is nothing to compel.

Third, under the Local Rules of the Court, Defendant is prohibited from initiating any discovery in this case until he provides his initial Rule 26(a)(1) disclosures, which Defendant was ordered to produce long ago and which Plaintiffs have asked for repeatedly.

Plaintiffs further request entry of an order requiring Defendant’s counsel, Charles Nesson, to pay Plaintiffs’ costs, including reasonable attorney fees, incurred in opposing Defendant’s Motion.
Nesson is a distinguished professor and an interesting guy. But as his deposition defense of his client and now this Oppenheim episode demonstrate, modern federal litigation practice is not his forté. The labels' opposition to the "Conditional Motion to Compel," and their request for sanctions, are well-taken. I wonder if Tenenbaum is beginning to wish he were still pro se.

(h/t Recording Industry vs. The People)

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