Court issues OSC re Nesson recording; cites apparent 'blatant disregard of a court order'

By Ben Sheffner

July 7, 2009

Indicating "deep[] concern" that Harvard Law School Professor Charles Nesson has violated two court orders by recording depositions in the Joel Tenenbaum case [ http://joelfightsback.com/ ] and then posting them to the Internet, Judge Nancy Gertner has ordered Nesson to show cause by this Thursday why he or Tenenbaum "should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case":

Judge Nancy Gertner: Electronic ORDER entered; "The Court is deeply concerned that the Defendant has violated the Court's June 16, 2009 Order [ http://www.scribd.com/doc/16501242/Gertner-Order-of-61609-re-Nesson-Tactics ] [850] as well as the Court's oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that "recording" the upcoming deposition did not mean "posting it on the internet," to which Mr. Nesson replied, "Okay. Thank you." Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case." (Gaudet, Jennifer) [link to June 16 order added by C&C; URLs re .mp3s were in original]

In layman's terms: Gertner has tentatively concluded that Nesson "blatant[ly]" violated her court orders, and is giving him a chance to explain why she should not impose sanctions (before she likely does exactly that). A perfect chance for Gertner to prove that her "indulgence is at an end [ http://www.scribd.com/doc/16501242/Gertner-Order-of-61609-re-Nesson-Tactics ]."

For more on Nesson's history of recording opposing counsel and the court, without their knowledge or permission, see here [ http://copyrightsandcampaigns.blogspot.com/2009/06/professor-nessons-recording-what-we.html ] and here [ http://copyrightsandcampaigns.blogspot.com/2009/07/nesson-temps-fate-posts-deposition.html ]. Trial remains set for July 27.

(Lede corrected to indicate sanctions may be directed at Tenenbaum "or his counsel.")

UPDATE: Several commenters have suggested it would be unfair to sanction Joel Tenenbaum himself for Nesson's recording habits. I agree that Nesson bears primary responsibility for what he has done. But two points to consider. First, Tenenbaum has enthusiastically embraced [ http://joelfightsback.com/2009/04/a-note-from-joel/ ] Nesson's tactics. And second, according to Nesson, "I represent him. I am him. We are one. [ http://www.boston.com/news/local/massachusetts/articles/2009/04/08/to_noted_lawyer_its_an_open_and_shout_case/?page=full ]" That doesn't leave a lot of daylight between the two, does it?

UPDATE II: Nesson has posted on his blog [ http://blogs.law.harvard.edu/nesson/2009/07/07/981/ ] a defense of his conduct:

At no point have i been surreptitious. the issue is not “secret” recording but “unconsented.” i put the recorder on the table red light on. i responded that the phone conference with court and opposing counsel with my twenty students present was being recorded and put my objections on the digital record before turning the recorder off. Without a digital record the event is lost to cyberspace.

***

RIAA was most certainly on notice that I was planning to record [the Pouwelse deposition]; that’s what our oral argument before the court and the court’s ruling was about.

***

Plaintiffs are mistaken when they assert in their brief that the recording of the Palfrey deposition was posted “on both [my] internet blog and the Berkman Center’s website”. The URL to which they direct the court, http://cyber.law.harvard.edu/~nesson/, is webspace I use for file storage that is neither reviewed nor endorsed by the Berkman Center; the files therein are unlinked to by any Berkman Center website. The same is true of my blog at http://blogs.law.harvard.edu/nesson, a website hosted by, but not curated, reviewed, or endorsed by the Berkman Center.
The portions of the Palfrey deposition posted on my website relate to deposition instructions and Mr. Oppenheim’s objection to my twittering. They in no way relate to what Mr. Oppenheim considers to be the substance of the case, and provide no basis whatever for imagining that the posting would taint the jury pool.

One question: How were the plaintiffs' attorneys supposed to know about the "red light" on Nesson's recording device when they were in their own offices, miles away from Nesson and his students, while participating in the conference call with Judge Gertner?

11:29 AM