Tuesday, July 14, 2009

Tenenbaum files motions on witness fees, web use in courtroom, voir dire by attorneys

Joel Tenenbaum today filed three brief motions:

1) Motion to Waive Witness Fees, or in the Alternative, for the Court to Call Witnesses Pursuant to Fed. R. Evid. 614(a). Tenenbaum indicates that he intends to call as trial witnesses RIAA President Cary Sherman and EVP of Government and Industry Affairs Mitch Glazier to testify on fair use and damages, and that he would like the court to waive the witness fees he would normally owe under FRCP 45 and 28 USC § 1821. But Tenenbaum has a more fundamental problem than alleged inability to pay witness fees, namely that Sherman and Glazer live in the Washington, DC area and are thus not subject to a subpoena issued from the District of Massachusetts. See FRCP 45(b)(2). I simply don't see how Tenenbaum can compel Sherman or Glazer to come to Boston, whether or not he pays their expenses. (I don't believe FRE 614 gives the court such authority either.) Normally in such circumstances a party could use the distant witnesses' deposition at trial. See FRCP 32(a)(4). But one big problem: Tenenbaum deposed neither Sherman nor Glazer (nor anyone else). I think Tenenbaum is simply out of luck with regard to these two witnesses. (Thanks to this anonymous commenter for flagging this issue.)

2) Motion in Limine re: Access to Internet during trial. Tenenbaum asks for an"order permitting the parties to access the Internet, through whatever means the Court may have available, such that witnesses may demonstrate the Internet related activities at issue in this case," specifically "how ... programs, such as Kazaa and Limewire, actually work; and how alternatives to p2p networks, such as iTunes, work." Most modern courtrooms do have web access, and judges permit such demonstrations. The issue is what the litigants actually seek to demonstrate. For example, I'm skeptical of the relevance of iTunes here. (This motion does not appear to be related to Tenenbaum's efforts to have the trial webcast to the public.)

3) Motion for Lawyer-Conducted Voir Dire. Tenenbaum asks that lawyers be permitted to question potential jurors because "parties to a case are in the best position to determine what jurors may be subject to a challenge for cause, based on their knowledge of the case." Different judges have different practices on this issue, and I do not know Judge Gertner's. The practice is clearly permitted under FRCP 47(a). At the recent Jammie Thomas-Rasset trial in Minnesota, Judge Michael Davis did permit the attorneys to question potential jurors; the whole voir dire process went very smoothly and lasted only about an hour.

1 comment:

  1. Since I comment enough, I figured that I ought to start going by a name :-p
    Thank you for the shout out on my anonymous comment regarding witnesses over 100 miles out.
    I was thinking this morning...what would I think if I were Harvard alumni or a student in Professor Nesson's evidence class?
    From what I can tell, Prof. Nesson sometimes reads your blog and the comments, so I would put this question to him--respectfully, I might add; enough people have commented on his genius that I am not going to sit here and say he isn't very smart having never met the man.
    Professor Nesson, you teach Evidence, which, ok, isn't Civil Procedure, but its pretty close and often (as it does here) has a lot of overlap. How could you either not know these rule or ignore them in a Court filing?
    FRCP 45(b)(2) does not allow trial subpoenas outside the district more than 100 miles from the trial. If you were to try to issue the subpoena from Washington, DC, where the witnesses reside/work, FRCP 45(c)(3) "REQUIRES" a court to quash any subpoena requiring travel of more than 100 miles unless the trial is in the same state as the person. Even the most junior litigation associate learns that if you want to compel testimony of such a person at trial, you take the deposition of the person where they reside and use that deposition at trial under FRCP 32(a)(4). This, as I am sure you are aware, is known as a "de bene esse" deposition.
    Having not taken such a deposition, unless you have a reason that I am not aware of, I would agree with Mr. Sheffner, that you are simply "out of luck."


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