Wednesday, March 11, 2009

Judge Gertner to Professor Nesson: The Courtroom is not a classroom, bub!

United States District Court Judge Nancy Gertner just schooled Harvard Law Professor Charles Nesson in how to act in federal court telling him in a written decision that litigating in her courtroom is "no clinical exercise."  The written decision, found here, was issued by the Boston court yesterday in Sony v. Tenenbaum in which Professor Nesson, founder of Harvard's Berkman Center for Internet and Society, was appointed to represent a pro se defendant accused of illegally downloading music files from the internet.   

According to the Legal Blog Watch:

What got Nesson in trouble . . . 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.

Judge Gertner went on to write:

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.

Hat tip to the Legal Blog Watch.

I am the scholarship dude.

(jbl)

http://lawprofessors.typepad.com/legalwriting/2009/03/judge-gertner-t.html

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