Friday, May 1, 2009

Gertner again rebuffs Nesson on recording; will the fourth time be the charm?

For what by my count is the fourth time, federal district judge Nancy Gertner has told Harvard Law School Professor Charles Nesson that he may not record proceedings in the Joel Tenenbaum case.

The latest came in a brief order on the record label plaintiffs' motion to conduct a deposition of a third party witness by telephone. Nesson had told the plaintiffs that that the "depo by phone is fine with us on condition that you assent to its being audio recorded." The labels filed a motion for an order to permit the phone depo (which is allowed under the Federal Rules) -- but without a recording by Nesson, which they feared would be posted to the Internet. Today, Judge Gertner granted the labels' motion:
Judge Nancy Gertner: Electronic ORDER entered granting [821] Motion for an Order Permitting Telephonic Deposition. "The telephonic deposition shall be stenographically transcribed, as are all depositions, and shall not be electronically recorded by any means except by the court reporter for the sole purpose of creating an accurate transcript.
Previously, Judge Gertner has:
1) Advised the parties that recording conversations without the consent of all parties is a violation of Massachusetts criminal law;

2) Told Nesson not to condition participation in meet-and-confers on recording the sessions; and

3) Refused to allow Nesson to record an informal phone conference with the court and counsel.
What will it take for the message to sink in?

(h/t Recording Industry vs. The People)


  1. Maybe if the judge records herself saying "no" he can play it for himself as many times as necessary.

  2. Ben, what is the significance of this? Obviously it establishes that Prof. Nesson has no respect for Judge Gertner's rulings, the Mass criminal law prohibiting this, the plaintiffs, or the undisclosed witness worried about his privacy (maybe add to that how bad he makes HLS and his student legal team look). But from a legal standpoint, what does it mean?

    Going forward, does Prof. Nesson just get to keep insisting that everything be recorded, forcing the plaintiffs to waste time and money to go to the judge for the inevitable smackdown? Do real lawyers do this? Do real lawyers get away with this? If not, why does he? Can the plaintiffs do anything to permanently halt his recording antics? To get remibursed for the cost of these needless motions?

  3. @Anonymous May 1, 2009 3:41 PM

    He is only doing what the RIAA likes to do to every defendent, whether they are guilty or innocent. And that is drive up the cost of litigation.

    What's the matter, afraid the RIAA can't take their own medicine?

    BTW, Ben I don't expect you to post this because it is anti-RIAA.

  4. To Anonymous 3:41:

    This has no direct significance to the underlying copyright issues in this case. This is about basic civil procedure.

    I have no idea what Prof. Nesson is going to do. I can say his tactics are highly unusual -- I've never seen anything remotely like this. What Nesson has said publicly is that he believes in openness, and that he is trying to use this case a teaching tool. Many have questioned whether those goals work to the detriment of his client in this case.

    Can the plaintiffs do anything to permanently halt his recording antics? Sure: they can ask the court to issue an order forbidding all recording by Nesson (or conditioning any acts on recording), on pain of sanctions (or even contempt).

    I think Nesson's tactics have at least 3 major effects -- all of which harm Tenenbaum's interests. First, they annoy the judge. Second, they force the plaintiffs to spend money -- which drives up the price of settlement. Third, they distract the defense team from doing all the things they *should* be doing to avoid losing on summary judgment or at trial.

  5. To 4:30 Anonymous:

    Please give us a specific and concrete example of an occasion that the recording industry purposely ran up the cost of litigation against a putative defendant without some sort of reason founded in the law.

  6. On what planet did Nesson take Civil Procedure? I understand his legal team consists of first years, but come on. He is an embarrassment.


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.