Harvard 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.
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.
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