Sunday, February 8, 2009

Tenenbaum counsel asks for comment on draft brief on Oppenheim deposition; the first-ever wikibrief?

The Joel Tenenbaum copyright infringement case is setting all sorts of interesting legal precedent -- just not in the area of copyright law. First there was the order granting permission for a live public webcast of a motion hearing -- apparently the first such webcast ever in federal court. And now we're seeing some precedent set in the brief-drafting process. Harvard Law School Professor Charles Nesson, who, along with a group of students, serves as Tenenbaum's counsel, has posted for public view and comment a draft of a brief regarding Nesson's efforts to depose Matthew Oppenheim, a longtime recording industry litigator. I've never heard of any attorney publicly releasing a draft of a brief before filing it. Such a public editing process (a wikibrief? or "collaborative lawyering"?) raises all sorts of interesting legal ethics issues regarding, at least, confidentiality and potential obligations of (and even liability for) the editors. But I'll leave those fascinating questions to the legal ethics experts and will instead focus on the substance of the draft brief.

First, some background. On Jan. 20, Tenenbaum filed a "Conditional Motion to Compel Deposition of Matthew Oppenheim," seeking to force Oppenheim to sit for a deposition on Jan. 22 -- in the Ames Courtroom at Harvard. Plaintiffs (the major US record labels) filed an opposition to the motion to compel, which included a request for sanctions against "defendant's counsel" (unclear to me whether that includes just Nesson, or his team of law students as well) for what they termed Tenenbaum's "blatant disregard for fundamental court procedure."

Tenenbaum's draft brief is labeled "Reply to Plaintiffs' Motion for Sanctions"; it's more accurately a Reply in Support of Defendant's Conditional Motion to Compel Deposition of Matthew Oppenheim. Like Tenenbaum's appellate brief on the webcast issue, this draft brief is...extremely brief. Less than one page long, in fact. I'm all in favor of brevity, but this draft brief is wholly lacking in substance, in citation to legal authority, and in responses to the arguments made by the labels in their opposition brief. See for yourself:

Here is a list of arguments made by the labels in their opposition that Tenenbaum's draft brief completely ignores:
  • Defendant failed to follow the Federal Rule of Civil Procedure and District of Massachusetts Local Rule mandating a conference between attorneys before filing a motion.
  • There was no subpoena to Oppenheim for a Jan. 22 deposition.
  • A subpoena to Oppenheim for a Jan. 20 deposition was invalid under FRCP 45 because: 1) it was not personally served; 2) it lacked witness and mileage fees; 3) the specified deposition location in Massachusetts was improper for a deposition of Oppenheim, a Maryland resident.
  • Defendant is not entitled to take discovery because he has not yet filed his disclosures under FRCP 26.
  • FRCP 37 requires an award of sanctions in discovery disputes unless the Court finds that Tenenbaum was “substantially justified” in bringing his initial motion.
Maybe Tenenbaum has good answers to these arguments (though I seriously doubt it). But if he does, he omits them from this draft. Instead, he spends 2 of his 4 paragraphs (yes, the entire draft consists of only 4 short paragraphs) responding to an argument that the labels' brief did not even make regarding the potentially privileged nature of Oppenheim's testimony. The labels did not argue that Oppenheim's deposition should not go forward because he has only privileged information to offer; rather, they said, "A conference among the parties is...required to determine whether there exist any non-privileged areas of testimony from Mr. Oppenheim that may be discoverable in this case."

One other thing: I have never litigated in the District of Massachusetts, and don't claim to be familiar with all its practices. That said, I'm not sure Tenenbaum's reply brief is even permitted by its Local Rules. Local Rule 37.1, which governs discovery disputes, speaks of a motion and an opposition -- but no reply. And the general rule on motions, Local Rule 7.1, provides that a reply brief "may be submitted only with leave of court" -- which Tenenbaum does not appear to have sought. (I think the court should permit a reply brief, at least to give Nesson a chance to respond to the request for sanctions.)

I really can't figure out what Nesson is up to here. He, and possibly his student helpers, are facing the very real possibility of being sanctioned for having filed what appears to be a baseless motion to compel Oppenheim's deposition. Yet their draft reply in support of their motion to compel (and opposition to the request for sanctions) makes no relevant legal arguments, cites no cases, and doesn't even begin to explain to the court its version of events. I've seen many pro se briefs that are much, much better than this. But Tenenbaum isn't pro se; he has a Harvard Law School professor representing him! Nesson and his student team are obviously passionate about copyright law and their defense of their client. But they still have to play by the same rules of civil litigation as everyone else. They're smart enough to learn the rules, and they have access to all the research materials they'll ever need. Time to set aside the wikibrief and get old-fashioned: crack open Moore's, log on to Westlaw, and get to drafting.

(Given that we're in uncharted -- and deeply strange -- waters here, I feel compelled to reiterate that I am commenting here simply as a blogger. I have no attorney-client relationship with Tenenbaum or his counsel, and I am not providing them with legal advice. Prof. Nesson acknowledges this here.)


  1. If your point is that this draft is a joke, it's hard to disagree. Not terribly funny, though...

  2. I seriously doubt that Charles Nesson is putting his best effort out on the web for the plaintiffs to read and prepare for. I mean, come on, this guy is a Harvard law professor; I would think that he knows what he is doing. I'd say that this is just something he put out there to scare the plaintiffs. I would love to be a fly on the wall in the courtroom when the bill comes due by this whole scam being run by RIAA and hear the judge rip them apart.

    Protecting their copyright? Meh, they are just dinosaurs that missed the digital train.

  3. I can assure you that the draft they released would not scare anyone, including the plaintiffs. The fact that Nesson is a Harvard Law professor only makes this episode all the more embarrassing.

  4. your word choices, "episode" and "embarrassing" are most interesting.

    i don't know what professor nesson is up to, but i highly doubt that counsel's wikibrief tactic is temerarious.

    how did you arrive at these conclusions?


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.