Gertner: webcast or not, full steam ahead

Judge Nancy Gertner is going to trial -- webcast or not.

The Boston federal jurist today denied Joel Tenenbaum's motion to stay all proceedings in the record labels' copyright suit against him pending Supreme Court review of the First Circuit's decision barring the webcast of motion hearings and the upcoming July 20 trial. The immediate effect is that this Friday's hearing on the labels' motion to dismiss Tenenbaum's counterclaims, and Tenenbaum's constitutional challenge to the Copyright Act's statutory damages provisions, will proceed, open to the public, but with no cameras or broadcasting equipment permitted.

Recent filings by the parties indicate that the attorneys -- some of whom will be involved in the Jammie Thomas trial in Minneapolis starting June 15 -- will be extremely busy now through trial. The labels charge that Tenenbaum is severely dragging his feet in complying with his discovery obligations, particularly with regard to his three proffered experts: Harvard Law School professor John Palfrey, Dutch computer scientist Johan Pouwelse, and Grateful Deal lyricist John Perry Barlow. I expect big fights over the admissibility of their opinions. And there is already a fight over the depositions of Pouwelse and Barlow. The labels want the depos in Boston; Tenenbaum says he "lacks the funds to fly them here," and wants the depos taken by phone. The labels say that's "impractical," given the "potential breadth of this proposed expert testimony, as well as the large number of documents that would be part of a deposition." I've only heard of telephonic depos used for very minor, brief depos -- never in the case of depos of experts who will be asked about numerous documents. I think Judge Gertner will be sympathetic to Tenenbaum's plight, but will insist that he make his experts available for depos in Boston if he wants them to testify at trial.

(Disclosure: I signed on to an amicus brief in the First Circuit in support of the webcast.)