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RIAA seeks sanctions against Harvard Law School prof.

Permanent Linkby Qray on Tue Feb 17, 2009 5:17 am

RIAA seeks sanctions against Harvard Law School prof.

Joel Tenenbaum's file-swapping case is being handled by a Harvard Law prof and his students, but the RIAA wants Professor Nesson censured and fined after he tries to depose a mysterious music industry lawyer.

The Joel Tenenbaum file-swapping case continues to get weirder--and we're still months away from an actual trial. Not only has the RIAA now appealed the judge's order allowing one particular hearing to be webcast, but music industry lawyers are now seeking sanctions on Tenenbaum's lawyer, Harvard Law professor Charles Nesson.

The webcasting issue is perhaps the oddest; the RIAA appears to believe that broadcasting pretrial hearings will influence the potential jury pool for the trial. Although the judge called the group's arguments "specious" when she rejected them, music industry lawyers have now appealed the ruling to the First Circuit Court of Appeals. The First Circuit then agreed to consider the appeal, delaying this week's expected hearing until sometime in February.

And although the trial isn't yet underway, the proceedings have already grown rancorous. Nesson (and the students at Harvard Law School who are doing much of the heavy lifting) has been trying to compel a deposition from Matthew Oppenheim. It's difficult to discern what Oppenheim does, exactly--he's not currently employed by the RIAA but appears to be heading up their legal campaign. (He was also present at the Jammie Thomas trial in Minnesota.)

Why does Nesson want to depose Oppenheim? As Nesson told the court, "Mr. Oppenheim has assumed the central role in the prosecution of the instant action, and in the broader litigation campaign of which this action is a part... The scope of information sought in this deposition includes, but is not limited to, Mr. Oppenheim's knowledge of the steps taken by Plaintiffs against Defendant before and after the commencement of this action; the formulation and execution of the litigation campaign of which this suit against Defendant is a part; the decision-making process that gave rise to the campaign; and the document flow and decision-making process among the four Plaintiffs and the RIAA."

This fits with one of Nesson's main concerns: to attack the entire litigation strategy of the RIAA, claiming that the group has been prosecuting essentially criminal cases under civil rules. He, and the students who work with him, want to do much more than simply win this one particular case.

To depose someone, certain rules must be followed. Proper notice must be given and a subpoena must be properly served. Though Nesson insists that this was all done correctly, the recording industry couldn't disagree more. They accuse Nesson, in particular, of a huge variety of procedural faults, including not serving Oppenheim in person (but only by mail and e-mail) and by not providing the necessary compensation and mileage reimbursement required by law.

"Defendant's repeated failure to follow basic rules of procedure, including specifically the failures noted above concerning Defendant's Motion, have unnecessarily complicated these proceedings," a recent RIAA court filing told the judge. "It is also apparent that Defendant's counsel, rather than Defendant, is responsible for these failures to confer and to follow simple rules. Accordingly, Plaintiffs ask that Defendant's counsel be ordered to pay Plaintiffs' costs, including reasonable attorney fees, incurred in filing this opposition to Defendant's Motion."

Nesson noted the proposed sanctions on his Twitter feed, saying, "'letter' just received threatening me with sanctions for moving to compel matt oppenheim's deposition." Friday, the [url=main Twitter feed]main Twitter feed[/url] for the defendants, noted that Nesson is now facing proposed [url=Rule 11 sanctions]Rule 11 sanctions[/url] for frivolous legal action.

If the pre-trial back-and-forth is this contentious, one can only imagine the fireworks at the trial itself--which, if the Harvard folks have their way, will be broadcast in its entirety.

http://arstechnica.com/tech-policy/news ... udents.ars

I'm going to die the way I've lived...poor, screaming, and naked.
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