Federal Judge Chastises Harvard Professor Charles Nesson For Effort to Hold Deposition In a Classroom

gertner_nancynesson-04Harvard Law School professor Charles Nesson was the subject of a judicial rebuke from United States District Court judge Nancy Gertner over his request to hold a deposition before a live law school audience in a classroom. Nesson is a respected academic and founder of Harvard’s Berkman Center for Internet & Society. He has tried to incorporate his pro bono representation in a file-sharing case into teaching in novel ways.

These are worthy cases for pro bono academics. The Recording Industry Association of America (RIAA) has been accused of muscling pro se litigants and using overwhelming resources against people like teenager Joel Tenenbaum who was accused of alleged copyright infringements.

Ironically, it was Judge Gertner who suggested Tenenbaum ask Nesson to represent him. Gertner has attracted attention as a jurist who not only blogs and embraces new media in the profession, here.

Nesson agreed and tried to make the case into a learning experience for his students, including a novel order from Gertner to allow the proceedings to be webcast. Harvard Law School has closely followed the case. The webcast never occurred despite the order but Nesson later asked for the deposition of Matthew Oppenheim, a lawyer who helps the RIAA coordinate file-sharing cases, to be held before a live law school audience and videotaped in a classroom. That proved too much for Judge Gertner. Judge Gertner stated: “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 then added

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.

Yiks. In fairness to Professor Nesson, courts will sometimes allow oral arguments to be held at law schools to expose law students to the legal process. At our law school, we have had the Court of Appeals for the Armed Forces hold arguments in our moot court. However, the idea of the deposition before a live audience was obvious a novel idea too far for the court in this case.

For the full story, click here.

9 thoughts on “Federal Judge Chastises Harvard Professor Charles Nesson For Effort to Hold Deposition In a Classroom”

  1. “You’re doubling down right?”

    Nah, just failing to correct a typo before posting.

  2. Nice catch and release BIL. The funk balances against the lives examined here.

  3. This is kind of interesting. A buddy showed me this article after a meeting this afternoon. He’s an IT and music geek, but the link to the song “mash up” the article references is actually quite good. The blog entry that linked to it though is squarely about IP.


  4. it’s only intellectual property when the corporations are getting the shaft.

  5. Isn’t Nesson the Law Prof from Harvard that’s been advocating the use of poker skills as a means of improving litigation skills?

  6. Isn’t Nesson the Law Prof from Harvord that’s been advocating the use of poker skills as a means of improving litigation skills?

  7. I’m going to have to side with the judge on this one. I wish Prof. Nesson the best of luck against the RIAA. They are systemic abusers who should be taken to task for their strong arm tactics and are solely responsible for my shift away from a strict adherence policy regarding IP. The RIAA are Corporate Goons – they don’t represent artists. They represent the people in the music publishing business that are more concerned with maintaining a monopoly on distribution instead of building new business models to cope with changing technology. And they did it to themselves. “Yes, we’ll lower CD costs!” never happened. When CD burners became as ubiquitous as toasters, people figured out that what they were paying $15-25 for costs only pennies to manufacture. Combine this with the new media savvy the internet engendered educating the populace that most of that money spent on CD’s never reached the artists, but only perpetuated the Industry Bureaucracy, the consumer rebelled. Sucks to be you, RIAA, but Radiohead is way ahead of your Business School types on what technology is capable of. Bands make the majority of their money by touring. If they can get their music out to create fans, e.g. customers, for those shows without having to pay you scumbags who quite frankly act like the Mafia enforcing their vig, more power to the artists. They do the hard work. You’re just middle men. But I digress. None of the RIAA’s thuggish tactics should be an excuse for or change the fact that a “live” deposition is just asking for trouble. Too many unknowns that could disrupt a key discovery process.

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