Thursday, July 9, 2009

Labels: Don't let Tenenbaum add late expert; Marshall's musings on 'music as a shared thing’ irrelevant

The record label plaintiffs today filed their opposition to Joel Tenenbaum's motion to add Brandeis University enthnomusicologist Wayne Marshall as a defense expert three months after the court-imposed deadline for expert disclosures. Aside from the extreme tardiness, the labels also argue that Marshall, who is the son-in-law of Tenenbaum lead counsel Charles Nesson, has no expertise relevant to the issues in the case:
[T]he substance of Marshall’s purported expert report makes clear that he has not reviewed the facts of the case at bar in the slightest and has no insight into whether or not Mr. Tenenbaum engaged in copyright infringement other than a general belief that music should be shared. The fact that Mr. Nesson’s son-in-law may have an opinion does not mean that he gets to take the stand and advocate on behalf of Defendant. The witness appears to be offered for the improper purpose of seeking to have the jury ignore existing copyright law. As the Court has already held that philosophical pronouncements, such as Marshall’s opinion of music as ‘a shared thing,’ are not the proper subject of expert testimony, Defendant’s Motion should be denied.
(links added by me). The labels also say that, in the event Judge Gertner allows Marshall to testify, they plan to file a separate motion to strike him based on Daubert -- a case on which Nesson served as counsel.

Given past events, I probably shouldn't say I would be shocked by anything in this case, but ... I would be shocked if Judge Gertner allows Marshall to serve as an expert.

Plaintiffs Opposition to Motion to Add Wayne Marshall as Expert


  1. Again, I can't imagine the position Judge Gertner must be in. She appointed this defense counsel and she did it for her perceived "inequities" in the case. Now she's in the position of essentially committing abuse of discretion for not continually sanctioning Nesson. Rule 37 is set up to have sanctions and the award of attorneys' fees as the status quo for which the Judge may decline to make such an award in exceptional circumstances.
    I once had a case where I had a similar circumstance of having to deal with the other side continually ignoring discovery rules and court orders. Every single motion, my client was awarded attorneys' fees for the motion, and finally on the sixth motion, an OSC was ordered and the Judge granted a default judgment after the OSC hearing.
    Not only has Judge Gertner shown an incredible amount of "indulgence," but the restraint of plaintiff's attorneys has been exceptional. How they haven't asked for fees--and at this point filed a motion for vexatious multiplication of proceedings--is beyond me.

  2. @Anonymous:

    I agree with you that the plaintiffs have been very restrained. But they actually have asked for fees several times recently. From what I can tell, Judge Gertner has simply ignored the requests. See, e.g.:

  3. Good point, my bad. I even see that you raised essentially the point I did, that she really needs to come out and say why she isn't giving attorneys' fees.
    If I were plaintiffs' attorneys, I might say at the next available in-person hearing, something to the extent of: "Your Honor, I know there has been a lot of motion practice in this case, but we actually have a number of outstanding motions for attorneys' fees regarding applications that you have granted. Rule 37 suggests, and in some places, explicitly says that fees will be granted unless the Court specifically finds the granting of them unjust. With the continual clear violations of deadlines and Court Orders, we believe that attorneys' fees are not only standard, but necessary in this case. We do not believe that our client should have to run up bill after bill paying for Defendant's obvious violations. As such, we respectfully ask the Court for a ruling on our attorneys' fee applications."

  4. This motion is not three months after the deadline for expert disclosure. The court has used a separate disclosure schedule for the fair use issue as compared to the constitutional and infringement issues. This motion is only a couple weeks after the deadline for fair use discovery. Anyone who has engaged in litigation knows that parties routinely attempt to supplement or introduce expert disclosure even though a few weeks late. Courts sometimes deny them the ability to do so, but sometimes allow it. In this case, it is entirely plausible that the court will allow this: fair use was only recently allowed as a triable issue, fair use discovery closed only recently, and this would be defendant's only expert on the issue.
    I understand that defense counsel has done many things off the beaten path, but I also think that critics on this blog have taken to paint every minor technical mistep as a shocking abuse. If a 70 year old professor working essentially alone and without support staff failed to capitalize "i's" in the closing paragraph of a brief, should that really be the focus of discourse? If he argued a motion without citing a case but instead arguing that plaintiffs were factually incorrect, is that a huge transgression or show of incompetence?
    Again, I understand that there have been numerous occassions where defense counsel went off the beaten path and made procedural misteps. But let's keep an open mind and not be in attack mode at every turn.

    As a final point, I want to emphasize that the plaintiffs -- through their lawyers -- are the ones who chose to sue individuals who cannot afford counsel. Thus, they cannot and should not expect the opposing counsel that they face to have the same facility with procedure as they do. They cannot expect the counsel that they face to act as "biglaw" corporate attorneys, because they are not suing corporations. Again, I understand that defense counsel has been particularly eccentric and has responsibility for the shenanigans we have seen, but so do the plaintiffs. They can sue people with underesourced and underexperienced lawyers, but in turn must accept that the procedural mechanics will not be smooth.

  5. @Anonymous 1:01:

    Your suggestion that Tenenbaum only recently was under any obligation to try to find experts on fair use ignores much of the history. Last November, Tenenbaum filed papers indicating his likely experts, who planned to testify on fair use: Most of these planned experts have disappeared from the scene, likely because of Nesson's public disclosure of this:

    Nesson's excuse for naming Marshall so late was this:

    "The reason for the lateness of the filing of this disclosure is that only recently did Dr. Marshall focus on how his expertise would be relevant to one judging the fairness of Joel’s use in relation to the copyright holder."

    Frankly, this is absurd. If Marshall (or Nesson) "focus[ed]" on his relevance long after the deadline, that's simply no excuse.

    I certainly agree that the plaintiffs have superior resources. But I don't think Nesson should get off the hook so easily. Plenty of law professors, at Harvard and elsewhere, litigate actual cases, without repeated violations of the rules and resort to off-the-wall arguments and tactics. His tactics don't serve his client well, and they force the plaintiffs to waste resources of their own.

  6. To Anonymous 1:01 from Anonymous 8:27/10:56:

    I must respectfully disagree with your position on this not being a big deal. Expert disclosures are extremely important and the date for them was indeed three months ago. When Judge Gertner allowed the fair use defense, something defendant could have raised a very long time ago, she specifically said that she was troubled by the late addition of the defense, and would allow only limited discovery and did not alter any dates to add new expert disclosures. In fact, she set the date for any amendments to reports (as opposed to disclosures) after she decided to allow fair use.
    Prof. Nesson never informed the Court in asking for fair use that he also wanted to change the expert dates, and to his credit, he does not say in his motion that the late date for the disclosure of Marshall was due to the recent addition of fair use, but rather that Marshall just realized that he might be relevant--the one thing I give Nesson abundant credit for is that the guy seems to be exceptionally honest, which is always a nice thing to see.
    In fact, I don't really attribute anything particularly unscrupulous to Nesson in these violations. The issue is that they are indeed violations of court orders and discovery rules and the law is quite clear that attorneys' fees are awarded in such instances unless clearly unjust (which the Court may end up saying it would be and denying fees, but she shouldn't just hold the applications).

    I don't agree with your point about blaming the plaintiffs for suing individuals, so this is what they get, but rather than getting into that, I'll simply point out that the irony of your post is that Nesson, a Harvard professor with experience (albeit years ago) in big cases and a team of Harvard students is actually doing far more than a typical outmanned lawyer with no resources--his violations mostly stem from the things he is doing, not the things he is not doing.


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