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Federal Judge Chastens Harvard Law Prof

Legal advocacy and legal education may not always be the best of bedfellows, it turns out. A Harvard law professor's efforts to combine the two while defending a file-sharing case earned him an admonishment this week from a federal judge in Boston and a warning that his educational pursuits may be undermining his client's case.

Ironically, the judge who chastened the professor helped bring him into the case in the first place. U.S. District Judge Nancy Gertner, concerned about the imbalance between big record companies and pro se defendants, pointed lawyerless defendant Joel Tenenbaum to Charles Nesson, a professor at Harvard Law School and a founder of Harvard's Berkman Center for Internet & Society. Nesson took up his defense and also saw in the case a broader educational opportunity. One of his first moves was to seek an order allowing a motion hearing to be webcast -- an order granted but later put on hold.

What got Nesson in trouble this week was his attempt to compel the deposition of Matthew Oppenheim, a lawyer who helps the RIAA coordinate its file-sharing cases but who is not involved in the Tenenbaum case. Not only did Nesson want to depose Oppenheim, but he also wanted to do it in front of an audience in a Harvard law school classroom and make a recording of it.

A clearly impatient Judge Gertner this week denied Nesson's motion to compel and served him notice that the case was not a classroom exercise. First, she said, Nesson failed to comply with the requirements of the federal rules for issuing a deposition subpoena. Second, she said, because he had not made the initial disclosures required by the federal rules, he was barred from initiating any discovery, including depositions.

Apart from failing those technical requirements, she continued, Nesson had shown continuing difficulty complying with the requirement of the rules that the parties meet and confer in good faith about discovery matters. "Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel's teaching style," she said in no uncertain terms. And then she issued a warning: 

While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation -- a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future.

It was, as the professor foresaw, an educational opportunity. It was not, however, the lesson he anticipated.

[Hat tip to Recording Industry vs. The People.]

Posted by Robert J. Ambrogi on March 11, 2009 at 12:20 PM | Permalink | Comments (4)


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