Those who oppose the RIAA's lawsuit campaign against file-sharers may
be tempted to see Harvard Law professor Charles Nesson as a white
knight who hoists the Lance of Sheer Intellect and Harvard's Shield
of Obscene Endowments, who jousts with music industry lawyers and
knocks them, one by one, from their chargers. And he may well do so.

But, in defending Boston University graduate student Joel Tenenbaum
and challenging the constitutionality of massive statutory damage
awards, Nesson has also managed to infuriate the federal judge
overseeing the case. Judge Nancy Gertner last night got so fed up
with Nesson that she wrote in a court order, "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."

At issue is Nesson's attempt to depose lawyer Matt Oppenheim, an
outside lawyer who coordinates many of the RIAA's legal cases and
represents the group at settlement conferences. Music industry
lawyers had already complained about this, telling the court that
Nesson hadn't followed the rules when he made his deposition request.
Further, he wanted to grill Oppenheim in a large Harvard classroom,
and he apparently wanted to ask about material that would almost
totally be covered by attorney-client privilege.

Judge Gertner agreed on every point, and went on to note that Nesson
has not yet even "made his initial disclosures pursuant to Fed. R.
Civ. P. 26(a)(1), [and so] D. Mass. Local Rule 26.2 bars him from
initiating any discovery, including depositions, absent an order from
the Court."

Furthermore, even if Nesson did make those disclosures, serve
Oppenheim personally, pay his mileage and witness fees, and do the
deposition within 100 miles of Washington, DC (where Oppenheim
works), "the subject-matter of any deposition of Mr. Oppenheim
invites extremely close scrutiny."

Meet-and-confer... seriously!

Not only that, but Nesson is apparently still not holding telephone
"meet-and-confer" meetings with music industry lawyers. Such meet-and-
confers require attorneys to hash out various issues directly without
using up the court's time, but Nesson has been telling RIAA lawyers
that he will only do the meet-and-confers if he can record them for
educational purposes.

Judge Gertner "notes with displeasure the continuing difficulties
with the meet-and-confer requirement" and says that the meetings
"must not be conditioned on Plaintiffs' consent to the recording of
those sessions." Gertner last month had reminded Nesson that
recording required the permission of all participants; Nesson seems
to have responded by simply refusing to do the phone calls unless the
opposing lawyers gave their consent.

What makes the whole situation even more surreal is that Gertner
actually found Nesson for Joel Tenenbaum when he appeared before her
as a pro se defendant. Gertner has let loose on music industry
lawyers from the bench, telling them that they were "basically
bankrupting people, and it's terribly critical that you stop it."
Nesson even represented the judge once, years ago.

None of that has stopped her from administering a judicial smackdown
to Nesson, and he certainly received the message. "Not feeling so
chipper at the moment," he tweeted last night. This morning, he
added, "Got slapped hard by judge gertner: kept me awake for awhile."

http://arstechnica.com/tech-policy/news/2009/03/p2p-judge-blasts-
frivolous-motions-from-harvard-prof.ars

http://tinyurl.com/dywwu6


--
The war on privilege will never end. Its next great campaign will be
against the privileges of the underprivileged. H. L. Mencken


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