Friday, July 3, 2009

Why Joel Tenenbaum is up a creek

There is no question that the record label plaintiffs have resources superior to those of Joel Tenenbaum. The labels have the large Denver-based Holme, Robert & Owen, plus the smaller Boston-based Dwyer & Collora (where Judge Gertner used to be a partner), at their disposal. Tenenbaum, the BU grad student and accused peer-to-peer infringer, is being defended, pro bono, by Harvard Law School Professor Charles Nesson and a team of law students, with some assistance from the small Boston law firm of Feinberg & Kamholz and Houston's Camara & Sibley, whose two principals just wound up on the losing side of a $1.92 million verdict in the Jammie-Thomas Rasset case in Minnesota.

So far, the setbacks Tenenbaum has encountered appear to have been the result of Nesson's unconventional litigation tactics, and not primarily the disparity in resources. But with barely more than three weeks left until the July 27 trial, Team Tenenbaum is about to get swamped. Frankly, putting aside the merits of the case (which I believe strongly favor the plaintiffs) it's going to be a huge challenge for them just to handle the volume of work they're about to encounter -- especially since the student team is mainly off on summer break.

Preparing for trial (especially if it's done right) is an extremely labor-intensive process. Here are some of the main tasks the parties have to undertake over the next few weeks:
  • Motions on expert witnesses. Surely the labels will move to exclude ethnomusicologist Wayne Marshall, who was disclosed three months late and whose opinions have at best dubious relevance to the legal issues in this case. They may also move to exclude or limit Tenenbaum's other experts, John Palfrey and Johan Pouwelse, under Daubert or general relevance grounds. Tenenbaum is going to have to write oppositions to such briefs, on a very compressed time frame. (And Tenenbaum could file a motion on plaintiffs' expert Doug Jacobson, though I know of no grounds to do so.)
  • Motions for summary judgment. I expect the labels to move for summary judgment on fair use, and possibly on the ultimate issue of liability as well. (That's how they won BMG Music v. Gonzalez.) If Tenenbaum doesn't successfully oppose such motions, it's all over for him. Opposing a summary judgment motion is a major undertaking; it involves not only writing the brief itself, but also compiling a separate statement listing allegedly disputed facts (with citations to the record), and assembling relevant evidence (deposition excerpts, declarations, discovery responses, etc.). And Tenenbaum has agreed (subject to the court's approval) to an extremely tight schedule for all of this. According to a joint motion filed today, summary judgment motions will be due July 13, with opposition briefs due July 17 -- a mere four days for a task that usually takes weeks. (Tenenbaum could file a summary judgment motion as well, but, given the state of the evidence, that would be a complete waste of time.)
  • Motions in limine. It wouldn't surprise me if each side files a half-dozen MILs, each of which will have to be responded to. My understanding is that MILs in the District of Massachusetts are usually filed at the pre-trial conference, which is set for July 20, one week before trial.
  • Pre-trial materials, all of which must be exchanged with the opposing party by July 15 (again, right in the middle of summary judgment briefing): witness lists, exhibit lists, pre-trial memoranda, and proposed jury instructions. None of this is rocket science, but it's important, time-consuming, and detail-oriented; leaving an important document off an exhibit list can result in disaster (or near-disaster) at trial. At big firms (like plaintiffs') a small army of associates and paralegals are available to handle the tasks; Team Tenenbaum will be scrambling.
  • Witness prep. Attorneys prepping for trial usually spend many hours with their own witnesses (both percipient and expert), making sure they have their stories straight and that they are prepared for the tough questions they'll face on cross-examination. The attorneys also typically prepare "scripts" or outlines for each witness, with citations to the record to which they can refer on the fly. Some of these can be quite lengthy; I remember doing a cross-exam outline for an opponent's expert that was more than 80 pages long (we only ended up actually using a fraction of that, but were prepared for any topic that might come up). Setting aside time for such preparation amid all the other tasks will be a real challenge.
  • The unknown. Especially given the circus this case has become, I am confident that there remain, in the words of Donald Rumsfeld, "unknown unknowns." Wacky, unexpected events will arise, to which the attorneys will have to divert their attention from the tasks outlined above.
Team Tenenbaum could really use their "Sam Waterston" right about now; the Manhattan DA seems to do pretty well without any trial prep at all...


  1. Thank you for this informative summary. Since most infringement cases seem not to get past either the preliminary injunction or summary judgment phases, this provides some needed insight.

  2. Yikes. Why in the world is the defendant agreeing to a 4-day response time? It's almost as though they view the actual judgement as a forgone conclusion and want to get straight to the appeal.

  3. Right. I haven't seen all the evidence, but from what I know, I think the plaintiffs are going to have a very strong motion, which would be tough to oppose in 4 weeks, let alone 4 days. And remember: Tenenbaum's actual computer/network expert is in The Netherlands, which will complicate working with him to put together a declaration to oppose summary judgment.

  4. If Mr. Tenenbaum is "up the creek" it in my view is the direct result of his thumbing his nose at the law when he made the decision to download and share protected content. While his defense team is certainly not doing him any favors by their "unusual" approach to his defense, the simple fact of the matter seems to be that they are in the unenviable position of (pardon my borrowing of a recent political phrase) "trying to put lipstick on a pig".

  5. Thank you for an interesting (and as always concise) insight into the - from an international legal perspective - wacky and quite surreal US civil procedures that both respondents and plaintiffs have to go through.

    I suspect this case more than any other will be watched with interest and quite a lot of "thank gawd it's not us as the solicitors" by the international legal fraternity.

    I look forward to your reporting (oops..blogging *g*) of this case.

  6. Fascinating to watch this play out. And thank you Ben for your clear reporting on this most interesting topic!
    As with Thomas, the defense really has no defense. It is really interesting to see our courts work their way through copyright challenges. More than one commentator on the blogs have made the point that this is a legislative issue - not a legal issue.


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