Friday, July 17, 2009

Court nixes Wayne Marshall as Tenenbaum expert; won't subpoena remote witnesses; allows voir dire by attorneys

Judge Nancy Gertner today denied Joel Tenenbaum's effort to add Brandeis University enthnomusicologist Wayne Marshall (whose father-in-law is Tenenbaum's counsel Charles Nesson) as a defense expert three months after the court-imposed deadline for expert disclosures:
Judge Nancy Gertner: Electronic ORDER entered denying [860] Motion for leave to serve Expert Report: the motion is simply too late. The deadline for identifying experts was 3 months ago and the deadline for supplementing expert reports was June 22, before the witness that was the subject of this motion was even proposed as an expert. (Gertner, Nancy)
Judge Gertner also denied Tenenbaum's motion to waive witness fees for RIAA President Cary Sherman and EVP of Government and Industry Affairs Mitch Glazier, who live in the Washington area and are not subject to subpoena from a federal court in Massachusetts:
Judge Nancy Gertner: Electronic ORDER entered denying [878] Defendant's Motion to Waive Witness Fees. This motion is denied for two reasons: First, the Defendant has not submitted an affidavit in support of his Motion to Waive Witness Fees detailing the potential costs relative to his lack of funds, nor has he so much as sought to meet the requirements of the in forma pauperis statute, 28 U.S.C. 1915 (applying to all indigent litigants, not only prisoners). See Haynes v. Scott, 116 F.3d 137, 140 & n.2 (5th Cir. 1997); Floyd v. United States Postal Service, 105 F.3d 274, 277 (6th Cir. 1997). A proper showing of indigence is a prerequisite to the type of relief that Tenenbaum seeks, as illustrated by the very case that he cites in support of his position. See Hadsell v. C.I.R.,107 F.3d 750 (9th Cir. 1997) (addressing waiver of fees for in forma pauperis defendant). To be sure, in an effort to reduce such costs, if the two witnesses' testimony remains relevant at the time of trial, the Court would permit the Defendant to obtain their testimony via video-conferencing pursuant to Fed. R. Civ. P. 43(a). That Rule provides: "For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." But videoteleconferencing raises a second problem. As currently written the Federal Rules seem to only permit this Court to subpoena trial testimony -- whether in-person or video -- from non-parties who are within this judicial district or within 100 miles of the Court. See Fed.R.Civ.P. 45(b)(2), (c)(3)(A)(ii); In re Methyl Tertiary Butyl Ether Products Liability Litigation, 2009 WL 1840882 (S.D.N.Y. June 24, 2009). Nor can any other court subpoena testimony for a trial in Massachusetts. See Fed.R.Civ.P. 45(a)(2)(A). While this limitation is obviously illogical as it pertains to videoteleconferencing as distinguished from physical testimony, because videoconferencing does not require a witness to travel from outside the jurisdiction to Massachusetts -- the Court is obviously not in a position to amend the Federal Rules. If the witnesses are outside the zone of this Court's subpoena power, and do not consent to videoteleconferencing, the Court cannot compel them to testify. The parties are invited to confer to determine if the testimony could be obtained by consent, or if agreement is not possible, whether there is any other authority for videoteleconferencing outside the jurisdiction which the Court may have overlooked. (Gertner, Nancy)
And, as requested by both Tenenbaum and the record labels, Judge Gertner will permit attorneys to conduct voir dire of potential jurors:
Judge Nancy Gertner: Electronic ORDER entered granting [879] Motion for Lawyer Conducted Voir Dire subject to certain limitations. Each side shall have 10 minutes per juror; for the most part, the subject matter of the questions may not concern legal issues which would be the subject of the court's instructions. The parties are to submit questions -- or the areas which the questions will cover -- to the court by the date of the final pretrial conference. (Gertner, Nancy)


  1. No surprises here.

    Ben thank you for your blog, it is very enlightening.

  2. Can you imagine if you were actually allowed to subpoena someone to submit to a videoconference in their jurisdiction for trial in another jurisdiction. People could wait until right before trial, after all discovery, and then decide to subpoena all the other side's employees in offices around the country--which, since they weren't instituted by the trial judge, you'd have to hire people around the country while you were in trial or on eve of trial to go get the subpoenas quashed for any unavailable witnesses.


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