Monday, July 6, 2009

Labels ask court to sanction Nesson and Tenenbaum for 'disruptive and illegal recording activity'

Fed up with Harvard Law Professor Charles Nesson's penchant for recording plaintiffs' counsel and then posting the results to the Internet, the record labels have asked Judge Nancy Gertner to sanction Nesson and ban him from engaging in similar "disruptive and illegal" conduct in the future. Judge Gertner has previously found that Nesson's recording practices constitute a "violation of the law," a reference to 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.
Plaintiffs' Motion for Sanctions against Nesson re Recording

The labels' motion plows over much familiar ground, but does reveal one significant new example of Nesson's recording. According to the plaintiffs' motion, Nesson, who is defending accused peer-to-peer infringer Joel Tenenbaum, made a "surreptitious" video recording of the July 2 and 3 deposition of defense expert Johan Pouwelse in violation of Judge Gertner's June 16 order that any such recording be conducted "consistent with the requirements of Fed. R. Civ. P. 30(b)(3)." Rule 30(b)(3)(B) mandates that methods of recording not indicated in the deposition notice itself are permitted only "[w]ith prior notice to the deponent and other parties" -- which Nesson apparently did not give. The motion also argues that Nesson's recent posting of portions of the deposition of defense expert John Palfrey flies in the face of Judge Gertner's "caution[]...that the decision to publicize any recording, on the internet or otherwise, may be regarded as an effort to taint the jury pool in advance of trial."

The plaintiffs' motion asks for monetary sanctions against both Nesson and Tenenbaum, a ban on future recording, an order that all recordings of the Pouwelse deposition be destroyed, removal of the recordings from Nesson's blog and Harvard's Berkman Center web site, and a protective order requiring that the "the discovery materials in this case be used by the parties solely for purposes of this litigation." The labels ask for an expedited ruling, expressing concern that Nesson will once again record and post to the Internet Tenenbaum's deposition, another day of which is set for this Wednesday.

So now Nesson and his team will have to devote many hours to briefing the issue whether he violated court orders, the Federal Rules of Civil Procedure, and Massachusetts criminal law -- at the time when they have less than three weeks to complete the mountains of actual trial-prep work on which they should be focused. None of this helps Joel Tenenbaum in the slightest.

(Updated to more fully reflect relief plaintiffs seek.)


  1. I really wonder what his purpose of making such recording is. If it only wastes Prof. Nesson's time and is downright risky?

  2. He's got this idea that the labels will "suppress" any "damaging testimony" and that the only way to "get the truth out" is to illegally record people.


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