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Thoughts on Joel Tenenbaum’s Deposition

Thoughts on the deposition:

The story of the deposition really began the previous day at the status hearing. The hearing was a success for us: the judge set an early trial date of December 1 against the wishes of Plaintiffs’ counsel. After the hearing, Plaintiff’s supervising attorney informed Prof. Nesson that he could only bring 2 students along with him to the deposition because they could not find a conference room large enough to accommodate more. She said it was absolutely impossible to get a larger room. I mentioned that the students won’t mind squeezing a bit, but she said “no, we can’t crowd the court reporter.” Notably, Plaintiffs’ deposition team would include 3, and at times 4, attorneys; apparently they were unwilling to afford Joel the same-sized team. In any event, Prof. Nesson and Plaintiff’s supervising attorney engaged in back and forth about this, until Prof. Nesson stated quite matter-of-factly “We are bringing 3.”

As a side note, Joel asked on the day of the hearing whether he needed to dress in a particular way for the deposition. Prof. Nesson said that ordinary clothes would be fine. Joel decided then and there that he would wear a Boston Red Sox t-shirt. It was meant to be his own small dig at Plaintiffs’ counsel: they were from Denver, and Joel was thinking about the Red Sox defeat over the Rockies in a recent World Series.

Our team met briefly the morning of the deposition. As promised, Joel was in his red sox t-shirt. Prof. Nesson’s chief advise to Joel was to be a “warrior:” You have your story, and you calmly and coolly state that story; you stay calm and focused at all times; you do not let them antagonize you or rush you or take you off your rhythm; you answer their questions with as few words as possible and by telling your story; nothing more; nothing less.

We arrived at local-counsel’s law offices and were shown to the conference room. I was expecting something small and cramped. The conference room was large enough to comfortably fit over a dozen people. The plaintiffs’ lawyers at the deposition were: the case’s supervising attorney; a junior attorney; and plaintiffs’ in-house counsel.

The supervising attorney took the deposition. Joel was apparently trying to really get into his “warrior” persona – he put on sun-glasses, maybe to keep them from seeing the whites of his eyes? She immediately began by asking Joel a litany of questions about how Prof. Nesson became involved in the case. For each question, Prof. Nesson asserted attorney-client privilege. This happened for about a dozen questions; each time, plaintiffs asked Joel a question, he said “I’ve been instructed not to answer,” plaintiff asked Prof. Nesson if he was instructing Joel not to answer, and Prof. Nesson said “yes.” It was all quite repetitive, until Plaintiffs began asking about whether Joel reviewed documents with Prof. Nesson. Unsuprisingly, Prof. Nesson asserted privilege. In-house counsel asked to go off the record.

The in-house counsel stated that the questions they were asking were completely ordinary and routine, they are not subject to privilege, and he has never been in a deposition where privilege was asserted. He explained that the contents of the documents may be privileged, but not a description of the nature of the documents; parties are required to produce “privilege logs” all the time. He then implied that Prof. Nesson was out of touch with current legal practice because he was a professor and doesn’t take many depositions these days. Prof. Nesson responded by commenting on the bullying nature of the litigation: the record companies are inappropriately using bullying tactics against the public in general, and have been unnecessarily harsh in their dealings with Joel in particular. The in-house counsel replied by saying that he has quite different views on the matter: many people get laid-off every year because of lost sales due to file-sharing and that is who he was fighting for. With regards to Joel’s case, he stated that Plaintiffs have been extremely generous with him and have afforded him many courtesies because he was pro se. He noted that Joel was the one being unduly harsh when he filed two separate motions for sanctions. As evidence of Joel’s supposed disrespect, he pointed out: “Here is a kid who shows up in our office wearing a Red Sox T-shirt and sun glasses!” The decision was made to save that conversation for another day and continue the deposition.

Eventually, the line of questioning went towards inquiries about other people who used or may have used Joel’s Kazaa account on the family computer. One by one, Joel listed off family and friends who used the computer over the years and explained why he thinks they may have used Kazaa (e.g., “they are music fans;” “they burn CDs;” “they download things”). The questioning for each such person took about 15 minutes or more. After 4 of these iterations, I had to leave to get to my clinical. I’m very curious about what else happened and how the deposition ended.

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