Not the Best Clinical Model? Federal Judge Chastens Harvard Law Prof

Legal advocacy and legal education may not always be the best of bedfellows, it turns out. A Harvard law professor's efforts to combine the two while defending a file-sharing case earned him an admonishment this week from a federal judge in Boston and a warning that his educational pursuits may be undermining his client's case.

Ironically, the judge who chastened the professor helped bring him into the case in the first place. U.S. District Judge Nancy Gertner, concerned about the imbalance between big record companies and pro se defendants, pointed lawyerless defendant Joel Tenenbaum to Charles Nesson, a professor at Harvard Law School and a founder of Harvard's Berkman Center for Internet & Society. Nesson took up his defense and also saw in the case a broader educational opportunity. One of his first moves was to seek an order allowing a motion hearing to be webcast -- an order granted but later put on hold.

What got Nesson in trouble this week 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.

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Comments

[Richard Boswell]

It is interesting that Prof. Nesson would do this -- unless of course it was part of a larger strategy that was signed on to by the client. I think that what this points to is that faculty members who are not usually engaged in client clinic representation may have vastly different approaches than a clinician might. There are many ways in which Professor Nesson could have accomplished the same educational objective. For example he could have had a video deposition and then shown it in class later. However, my main question in this case was the degree to which the Professor Nesson involved the client in the decisions on what approaches to take and which eventually got him in trouble.

R. Boswell