Sunday, February 15, 2009

Checking in on Joel Tenenbaum's 'wikibrief'

It's now been a whole week since Joel Tenenbaum's legal team launched its "collaborative lawyering" project: its attempt to enlist the public's help in drafting a brief regarding its efforts to depose music industry litigator Matt Oppenheim. So it's worth checking in to see how it's working out.

To recap: Tenenbaum attempted to notice Oppenheim's deposition for the Ames Courtroom at Harvard Law School. Plaintiffs resisted, and Tenenbaum moved to compel. Plaintiffs opposed, and requested sanctions against Tenenbaum's counsel, Harvard Professor Charles Nesson. On Feb. 8, Tenenbaum's team publicly posted a draft reply/opposition to sanctions and provided a comment form for anyone with an Internet connection to weigh in -- no law license required.

So what sort of assistance have they received (at least publicly)? One week in, a grand total of 5 comments. The first, from "Andy," contains some general thoughts about the litigation, but nothing about the draft brief itself:
it is about more than just music. and maybe thats the problem. maybe it should be about less. both sides are throwing stones, neither side presents an empathic argument. are the RIAA representing the interests of the clients they serve, and are the students representing Joel’s interests effectively? there are real interests on both sides. and i’m not sure their voice rises above the rhetoric. what is the role of the court of public opinion when there is a real case in the court of “public opinion is not a factor?” good luck, guys. keep tweeting.
Attorney Ray Beckerman then weighs by calling the plaintiffs "freaks," directing Tenenbaum's team to briefing on a sanctions motion against him in another of the labels' lawsuits, and referring to Rule 11 (though the plaintiffs' request for sanctions was under Rule 37). Finally, I made 2 posts: one linking to my less-than-rave review of the initial draft, and the other pointing to the discussion at Legal Ethics Forum about ethical issues raised by the public posting of a draft brief.

The issues raised by this motion to compel, opposition, and request for sanctions are not remotely novel or complex. On the contrary, they are basic, routine, and mundane, involving the procedures for noticing a deposition, filing a motion in the District of Massachusetts, and determining whether discovery sanctions are appropriate. A Harvard Law professor and his team of eager and intelligent students should not need outside assistance in drafting such a brief. Perhaps the dearth of public response to Tenenbaum's plea for help reflects that.

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