Thursday, July 9, 2009

Labels reply to Nesson on recordings: 'time for a sense of decorum and professionalism to be imposed'

That was quick. Only a few hours after Harvard Law Professor Charles Nesson submitted a "declaration" denying all wrongdoing regarding his practice of recording proceedings in the Joel Tenenbaum case and then posting the results to the Internet, the record label plaintiffs have filed a reply. Among the labels' main points:
  • At least some of Nesson's recording was done without the knowledge of plaintiffs' counsel, including portions of the depositions of Tenenbaum and defense expert Johan Pouwelse.
  • Contrary to Nesson's assertion, Plaintiffs were not on notice of Mr. Nesson’s intent to record the Pouwelse deposition.
  • The court's admonition against posting deposition recordings to the Web applied to all portions of the depos -- not just the substantive parts.
  • "Nesson did not deny or respond to the fact that he has repeatedly violated Massachusetts law by recording conversations with Plaintiffs’ counsel without consent."
  • "Plaintiffs seek to litigate this case without it becoming a circus. Neither Plaintiffs nor their counsel want to have these recordings (or the still pictures taken without permission at the deposition of Joel Tenenbaum earlier this week) used for any purpose, now or later. There are official transcripts of the proceedings that function to memorialize the case. It is time for a sense of decorum and professionalism to be imposed on a case that seems to be lacking in it."

  • Plaintiffs Reply Re OSC Re Nesson Recording

For those who may think that the Massachusetts statute requiring all-party consent for recording is toothless or archaic or "gobbledygook," I urge you to read a fascinating case from the Massachusetts Supreme Judicial Court called Commonwealth v. Hyde, 434 Mass 594 (2001). Hyde was pulled over in his Porsche, and he secretly audio-recorded the subsequent encounter with police, which became quite confrontational. All of this took place out in the open on a public street. He later submitted a formal complaint to the police department, presenting his recording as evidence. Bad move. The cops were cleared, and Hyde was charged and convicted of four counts of violating 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. On appeal, the state's high court upheld Hyde's conviction, brushing aside the dissent's concern that, had the Rodney King beating occurred in Massachusetts, the guy who did the videotaping could have ended up in jail instead of hailed as a hero.

Interesting tidbit: the ACLU of Massachusetts filed an amicus brief on behalf of Hyde. On the brief was John Reinstein, who happens to be married to ... federal District Judge Nancy Gertner.


  1. I've got some serious qualms with the decision in "Commonwealth vs. Hyde". Hyde's assertion is that public officials may use speech in the execution of their duty, but that such speech is not a "conversation" and therefore not subject to the statute. The court's reply has little more substance than "nuh-uh."

    Also, this gem: "[T]he dissent, by logical extension, would permit the untrammeled interception of communications by legislators, executive officers and agents, judicial officials, municipal officers, among others, on the erroneous supposition that public accountability requires the practice." (italics mine.)

    ...ah-heh. That's an interesting interpretation of "government with the consent of the governed".

    Look, if the court wants to argue that it's a garbage statute but that's how the law's written, that's one thing. But the court's reasoning is that private taping of public individuals would lead to a total collapse of society, and that's...a bit odd.

    Not that this has anything to do with Nesson, who was specifically ordered by the judge not to tape the depositions, and he went ahead and did it anyway.

  2. Interesting case. In case anyone is wondering it looks like Hyde received a sentence of 6 months probation.
    - MB

  3. Seems the MA case is wrong, to me. If the confrontation takes place between a citizen and the government on a public street, it is by definition a matter of general public interest (read the police blotter in a small-town newspaper). So he should have won, but didn't. I think the feds would probably throw that out.

    Hyde, however, is a readily distinguishable case. Even if you think the MA S Ct is wrong (and I actually do), a 2-party wiretap statute certainly could be constitutionally applied in many circumstances. One of those circumstances is during the discovery process. The routine grant of protective orders in discovery is that the public has no general interest in the discovery process; discoverable material and related discussions are not evidence. (Once you go into court, the public interest applies and the calculation is different). Nesson has no First Amendment right to broadcast the contents of discovery to the world. (Put it this way--if he has a first amendment right to do all this, then why is a PO not subject to challenge under the same theory?).

    The only other out I can think of (without billing for it) is if the statute is so substantially overbroad that even if Nesson's case is unprotected, it should fall because of the broad effect on speech. (See the Munson case). I could be wrong, but I'm not seeing it. IMO, any first amendment challenge to this statute would have to be as applied in order to be successful. And Nesson's acts don't seem to qualify.

    This case already is a circus.


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