Wednesday, March 4, 2009

Gertner having second thoughts on Tenenbaum webcast order; invites motion for reconsideration

Judge Nancy Gertner has issued an order in the Joel Tenenbaum case inviting a motion for reconsideration of her Jan. 14 order permitting the webcast of an important upcoming motion hearing. Her order is based on the First Circuit's unearthing of a 1996 Judicial Council resolution explicitly barring cameras in the courtroom -- a resolution that the parties, amici (including yours truly), and the Court all apparently missed (because, I strongly suspect, the resolution was not available online). The District Court's Jan. 14 order was explicitly premised on the (erroneous) notion that the First Circuit Judicial Council had not spoken on this issue. See Jan. 14 Order at 9 ("To date, no circuit judicial council -- including the First Circuit judicial council which binds this Court -- has" issued a resolution banning cameras.).

The Court's order states that "it would be appropriate for the parties to seek reconsideration" (my emphasis) of the webcast order, but that's a bit rich -- the only parties who will want reconsideration are the parties that lost in the District Court (i.e., the record labels, who opposed the webcast). Judge Gertner imposed a deadline of March 11 for any such motion, and March 18 for an opposition. The First Circuit's has set oral argument on the labels' appeal of the webcast order for April 7, so the District Court's briefing schedule will give it time to issue a new order before then. If Judge Gertner reverses her Jan. 14 order, the labels' writ petition would presumably become moot, since the order appealed from would be withdrawn (though there is some chance the First Circuit could proceed anyway, on the theory that they should speak definitively on an issue that is likely to recur).

My current prediction on the outcome of all this? No webcast. Which is a shame.

The Court's entire order is here:
The Court has learned that the Judicial Council of the First Circuit issued a Resolution dated July 12, 1996, which was not previously identified or addressed by the parties before the district court. See First Circuit Order of February 20, 2009, Case No. 09-1090. Both sides argued -- and the Court rested its decision -- on the apparently erroneous assumption that the Judicial Council of the First Circuit had not taken a position on the recording of district court proceedings. See District Court Order of January 14, 2009. Since this Resolution is a matter of significance neither raised nor addressed in the district court, it would be appropriate for the parties to seek reconsideration of the Court's January 14, 2009 Order. See Commonwealth of Puerto Rico v. The S.S. Zoe Colocotroni, 601 F. 2d 39 (1st Cir. 1979). Mindful of the deadlines already imposed by the First Circuit, and not wishing to duplicate those proceedings, any such motion to reconsider may be filed in this Court by March 11, 2009, with opposition due March 18, 2009.

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