Comments on: Maybe Charlie Nesson Can Throw Chalk At Judge Gertner

By: Ray Beckerman

Ray Beckerman — Sat, 14 Mar 2009 19:29:58 +0000

And now the RIAA lawyers publicly admit to the Appeals Court that they never mentioned the 1st Circuit Judicial Council resolution to Judge Gertner (thus proving she could not have been acting outside of her discretion) and that the reason was that they couldn't "confirm" whether such a resolution even existing (thus establishing the invalidity of the resolution, since the requisite public notice and recording had not taken place), all rendering even more inexplicable their refusal to present the information and arguments to Judge Gertner which they would have presented to her in the first place had they been acting competently, and were the resolution they seek to enforce valid.

http://is.gd/nmnu

By: Ray Beckerman

Ray Beckerman — Fri, 13 Mar 2009 18:17:04 +0000

Yes, Patrick. They have no business representing clients.

By: Patrick

Patrick — Fri, 13 Mar 2009 15:40:25 +0000

Meaning that the attorneys who filed the "Notice" don't appreciate the risk, and think it proper pleading to file non-rules "Notices" advising a federal judge, incorrectly, that the judge lacks jurisdiction? If that's the case, they have no business representing clients in small claims court.

By: Ray Beckerman

Ray Beckerman — Fri, 13 Mar 2009 15:29:17 +0000

Patrick, on reflection there is a slight flaw in your analogies. Each might be considered an act of bravery.

Knowing the people involved as I do, I can assure you this was not an act of bravery, but rather one of stupidity.

I cannot praise a cloistered virtue.

By: Ray Beckerman

Ray Beckerman — Fri, 13 Mar 2009 04:39:25 +0000

Patrick…you have a much more vivid writing style than I. Thanks for the amplification.

By: Patrick

Patrick — Thu, 12 Mar 2009 22:37:46 +0000

Ahem. For those who aren't lawyers, the idea of filing a one paragraph "Notice" telling a federal judge that she lacks jurisdiction in response to an order (on a matter where the judge clearly does have jurisdiction), is, well, pick your metaphor: Walking into a biker bar and announcing you can take any man in the place? Standing on Mt Olympus and cursing Zeus? Kicking a mastiff? It's pretty damned stupid. As Ray says, I've never seen anything like this.

By: Reed

Reed — Thu, 12 Mar 2009 21:31:46 +0000

Thanks for the clarification Ray.

Looks like the "thumb their nose" theory is the right one.

By: Ray Beckerman

Ray Beckerman — Thu, 12 Mar 2009 21:25:18 +0000

Reed

1. The 1st Circuit specifically ruled that it was not staying anything other than the televising.

2. There is no appealable order, hence no appeal; it's just a petition for mandamus or prohibition.

By: Reed

Reed — Thu, 12 Mar 2009 21:20:28 +0000

Re your most recent comment, Ray, perhaps the RIAA believes that their appeal to the First Circuit divests the District Court of jurisdiction to reconsider its prior order. While I haven't researched that precise issue in federal court, I know in our (NC) state courts that a trial judge's order can be modified by that trial judge even while the order is on appeal. I would hazard a guess under the Federal law that such orders are in fieri even while on appeal, and the trial judge retains jurisdiction to reconsider her prior order.

Or maybe the RIAA just wants to thumb their nose at Judge Gertner.

By: Reed

Reed — Thu, 12 Mar 2009 21:13:02 +0000

I don't think the judge's order necessarily forecloses the possibility of deposing him. It looks like if Nesson served a proper Rule 45 motion, he might have a shot at deposing Oppenheim. Moreover, as far as I know, there's no hard and fast rule against deposing an attorney. It's just that, in most cases, what one is likely to ask that attorney is comprised primarily of questions covered by the attorney-client privilege, and therefore a good argument is made that any such deposition, by its nature, is meant to harass rather than to obtain legitimate information. Based on these posts, it looks like a subpoena for deposition on the limited issue of Oppenheim's role (attorney vs. client) in these cases would be a potentially fruitful first step, thereafter followed by a motion for leave to take a second deposition upon a showing that Oppenheim is not covered by the attorney-client privilege given his role as "client".

By: Ray Beckerman

Ray Beckerman — Thu, 12 Mar 2009 21:03:34 +0000

I guess Prof. Nesson and Holme Roberts & Owen are in a contest to see which of them can do more to piss off Judge Gertner.

http://recordingindustryvspeople.blogspot.com/2009_03_01_archive.html#2361858234368468907

My money's on Holme Roberts & Owen.

By: Ray Beckerman

Ray Beckerman — Thu, 12 Mar 2009 20:34:49 +0000

Let us say he is chameleon like; he claims what is convenient at the moment. But it is clear that he is not counsel of record, except on the cases in the DC area. And it is likewise clear that he is associated with the RIAA, and that he has decision-making power in settlement. It is likewise clear that he has represented to the courts on numerous occasions that he was not there as an attorney but as 'client'. 'client representative', 'industry representative', the 'principal', and as the 'sole person with settlement authority for all of the plaintiffs'. It seems to me that he should be deposed.

By: Patrick

Patrick — Thu, 12 Mar 2009 16:41:28 +0000

Five Oppenheims in Massachusetts, none of them Matthew.

http://massbbo.org/bbolookup.php

Of course, that he's not admitted in Massachusetts, or signing pleadings in a given case, doesn't mean he's not acting as an attorney, any more than it does in the case of corporate counsel.

By: Ray Beckerman

Ray Beckerman — Thu, 12 Mar 2009 16:35:16 +0000

I.e. Mr. Oppenheim says what it's convenient for him to say, with little or no regard for what is true. When I objected to his appearing at a settlement conference as the 'principal', saying he was just a lawyer -- he said no he's not the lawyer, he's the principal of the client. But when -- as in the present situation -- he wants to weasel out of being deposed, then all of a sudden he's the "lawyer". I wonder if he's even admitted to practice in the District of Massachusetts.

By: Ray Beckerman

Ray Beckerman — Thu, 12 Mar 2009 16:31:49 +0000

On the adjournment: it was Steven Fabrizio and Gianni Servodidio. Today they're claiming they never heard my voicemail, left 5 hrs earlier. On the Oppenheim thing: it's not black & white like the Judge's decision might make you think. Oppenheim is NOT the plaintiffs' lawyer. The only time he ever acts as their lawyer is on cases in DC, Maryland, and Virginia. He has termed himself as "the client", "the client representative", "the industry representative", "the principal", and the "only person in the world who has settlement authority". He is in fact empowered to decide the terms of all settlements, or at least he has represented to the judges that that is the case. So to insist upon a right to depose him as a party deponent is not far fetched at all.