Thursday, July 9, 2009

Nesson responds to OSC re taping; claims labels seek to 'distract and sap the energy...of those they oppose'

Harvard Law School Professor Charles Nesson today responded to Judge Nancy Gertner's Order to Show Cause regarding his practice of taping opposing counsel and posting the results to the Internet with a "declaration" denying all wrongdoing and accusing the plaintiffs in the Joel Tenenbaum case of seeking to "distract and sap the energy, and resources and reputations of those they oppose."
Nesson Response to OSC Re Recording

Nesson's response asserts that:
1) None of his recording was "surreptitious";

2) His oral notice that he would record depositions satisfies the notice requirement of FRCP 30(b)(3)(B); and

3) The portions of the deposition of John Palfrey that he posted to the Web were brief and inconsequential.
Nesson's submission does not cite a single case in support of his arguments. Nor does it address Judge Gertner's prior statement that his 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.

Moreover, though styled a "declaration," Nesson's response is unsworn. In my experience, many federal judges would refuse to consider factual assertions (of which this response contains many) in a brief that are not supported by a declaration or affidavit signed under penalty of perjury.

Here is the record label plaintiffs' brief that led Judge Gertner to issue her OSC.


  1. The old saying really is true "there is law but there is no justice". Here we go again with the endless legal machinations.

    PS This is about the game and not the players. What other result can an adversarial game achieve?

  2. Nesson's a nutter, but to respond to your confused twitter, Exxon does apply to statutory damages to the extent that they represent punitive damages. The DOJ brief gives no authority against that. The Exxon ruling does apply to the RIAA suits.


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