Legal Blog Watch catches Charles Nesson, a professor at Harvard Law School and a founder of Harvard’s Berkman Center for Internet & Society, getting reprimanded in the SONY BMG Music v. Tenenbaum case. Recording Industry vs. The People has the Order (PDF), which says:
Absent plain evidence to the contrary, and the Defendant has presented none, Plaintiffs must be taken at their word — in which case Mr. Oppenheim [an attorney for the Defendants in other matters] is not a party to this case whose deposition may simply be noticed under Fed. R. Civ. P. 30(b)(1). Instead, he may only be deposed pursuant to a third-party subpoena that conforms to the requirements of Fed. R. Civ. P. 45 (requiring a more formal process for deposing witnesses who are not parties in the case). For the very reasons stated by the Plaintiffs, the Defendant’s subpoena fails to meet these requirements: it was not delivered through personal service; witness and mileage fees were not tendered at the time of service; and it was not served within the district of the issuing court or within 100 miles of the place specified for the deposition. See Fed. R. Civ. P. 45(b)(1)-(2). In addition, because Defendant has not made his initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1), D. Mass. Local Rule 26.2 bars him from initiating any discovery, including depositions, absent an order from the Court.
Yep. That’ll get a warning like "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."
As much as I’d like to smugly deride the foolishly ivy tower law professor for daring to believe he could be a civil litigator, fact is, in the real world, lawyers sometimes make honest mistakes and, depressingly, often care little for what the rules actually say.
Here’s an example from the Federal Rule of Civil Procedures. I am apparently among the very few, very proud lawyers who have ever laid eyes on it:
(d) Timing and Sequence of Discovery.
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
Fed.R.Civ.P. 26(d)(emphasis added). I have lost track of the number of defendants who have opposed my discovery and sought protective orders on such frivolous grounds as:
(a) I have to depose the defendant last;
(b) I have to obtain persuasive evidence for my case before I can depose the defendant;
and, my favorite,
(c) it’s "unduly burdensome" unless we do depositions in the order the defendant wants to do them.
So, Professor Nesson, welcome to the club. Please take note of the mistake and move on.