Professor Nesson's recording: What we know

Now that Boston federal judge Nancy Gertner's pronouncement that Harvard Law School Professor Charles Nesson's practice of "taping opposing counsel without permission" constitutes a "violation of the law" has begun to receive some mainstream attention, I thought it would be useful to collect in one place exactly what we know about Nesson's recording practices.

THE FACTS

I know of at least four separate instances in the context of the Joel Tenenbaum case where Nesson has recorded others, at least in part without permission, and then posted (or members of his defense team posted) the recordings to the Web:

1) Nesson recorded his client Joel Tenenbaum's deposition, which I believe occurred on September 24, 2008. It is my understanding that at least part of this recording (e.g., recording conversations during breaks from the actual deposition) occurred without the permission and/or knowledge of plaintiffs' counsel.

2) Nesson recorded the initial portion of an informal telephonic conference with Judge Gertner and opposing counsel that I believe took place in late January 2009. The initial part of the conference was recorded without the apparent knowledge of Judge Gertner or plaintiffs' counsel. Nesson appears to have stopped recording after being ordered to do so by Judge Gertner.

3) Nesson recorded the initial portion of a telephonic conference on June 8, 2009 in Capitol v. Jammie Thomas-Rasset. Nesson appears to have stopped recording after being ordered to do so by Judge Michael Davis. (Nesson was attempting to record the proceedings in the Thomas-Rasset case in aid of his defense of Tenenbaum.) Nesson's reaction after being told not to record: ":<(".

4) Nesson recorded a conversation with his wife Fern in late March 2009, in which they discussed the Tenenbaum defense. Fern Nesson later told the Boston Globe that "she was unaware he tape-recorded her," and that her husband "constantly carries a tiny digital tape recorder around their Cambridge house and must have turned it on when she wasn't looking."

On several other occasions, Professor Nesson has attempted to record telephonic "meet-and-confers" with opposing counsel, though it is not clear whether Nesson actually did record any portion of those conversations, or whether the conversations simply ended when plaintiffs' attorneys refused to be recorded.

(For an older example of Professor Nesson's recording practices, see this 2002 profile in the Harvard Crimson.)

THE LAW

The first official mention by the court of the possibility that Nesson's recording may constitute a violation of the law came in an order on February 23, 2009, in which Judge Gertner wrote:

An issue has arisen with respect to the recording of counsel communications. The parties are advised that any such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 § 99.

On March 9, 2009, Judge Gertner stated in an order:

As before, the good faith meet-and-confer sessions required by Rule 37 must not be conditioned on Plaintiffs' consent to the recording of those sessions.

And then on June 1, Judge Gertner wrote in an order:

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.

And most recently, on June 16, Judge Gertner wrote in an order:

The court's indulgence is at an end. Too often...the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected the positions counsel asserts) on the internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that Defendant is accused of file-sharing.

(my emphasis). There is no doubt in my mind that "the law" of which Judge Gertner believes Professor Nesson is "in violation" is the same "law" to which she referred in her February 23 order: Massachusetts General Law, Chapter 272, Section 99, which makes it a felony, punishable by up to five years in state prison, to record conversations without the consent of all parties, or to "disclose" such recordings. The statute also provides for civil remedies.

To be absolutely clear: Professor Nesson has not been formally charged with any violation of the law. I have no reason to believe that his conduct is being investigated by any law enforcement or other authorities. And the plaintiffs in the Tenenbaum case have not moved for sanctions against him regarding his recording practices.