Friday, February 27, 2009

Labels again oppose Oppenheim deposition; Nesson still trying to record calls

The record label plaintiffs in the Joel Tenenbaum case have filed a supplemental brief in opposition to Tenenbaum's motion to compel the deposition of Matt Oppenheim, further pressing their case that Tenenbaum's counsel failed to follow the rules for deposing an out-of-state witness -- especially a witness who happens to be the plaintiffs' lawyer.

In case it wasn't clear before, the labels state explicitly that Oppenheim, a long-time recording industry litigator, "is an attorney in private practice in Potomac, Maryland [and] represents Plaintiffs in this case." That he is sometimes referred to as the "client representative" and speaks for the labels at settlement negotiations does not change the fact that he is simply outside counsel -- not a "party," as Tenenbaum claims, or, if you are more conspiratorially-minded, a "mystery man."

But the most interesting part of the brief may be footnote 1 on page 4, where Plaintiffs once again remind the court that Tenenbaum's counsel, Harvard Law Professor Charles Nesson, is refusing to conduct required telephonic "meet and confers" with the plaintiffs' lawyers because they will not permit him to record the calls. And C&C has learned that the latest of Nesson's refusals to meet and confer happened only yesterday, Feb. 26. This is truly astonishing, given that, in her Feb. 23 order, Judge Nancy Gertner specifically admonished Nesson not to tape calls, and told him in no uncertain terms that he had better start obeying the Federal Rules of Civil Procedure and the District of Massachusetts Local Rules. Refusing to participate in meet-and-confers because he can't tape them seems like a sure route to sanctions.

Lastly, just a note for the non-lawyers who may be reading this and thinking, "This is all just typical, boring lawyer stuff." There is nothing typical about any of this. There is nothing typical about attempting to depose the other side's litigation counsel. There is nothing typical about noticing such a deposition for a law school auditorium. There is nothing typical about attempting to record phone calls with opposing counsel. And there is nothing typical about employing these tactics just days after being warned by the judge to knock it off.

Ars Technica says that the case has gotten "seriously funky." Hard to argue with that. Let's hope that Judge Gertner tells her own former counsel to cut out the funk, and follow the rules. I suspect sanctions will be necessary to do the trick.

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