Charles Nesson, the Harvard Law professor who is heading up the defense of accused P2P user Joel Tenenbaum, has issued a full-scale apology to the judge overseeing the case and the recording industry lawyers who oppose him.

Or has he?

Deposition madness

At issue is Nesson's decision to seek a sworn deposition from Matthew Oppenheim, outside counsel retained by the RIAA to manage its file-sharing litigation. Deposing one of the other side's lawyers is an... unorthodox legal strategy, since much of what would presumably be asked would be covered by attorney/client privilege.

Nesson pressed ahead, filing a Motion to Compel the deposition with the court, and he hoped to hold the deposition in a Harvard auditorium (Oppenheim lives in Washington, DC). The music industry objected, saying that Nesson had not even followed certain basic procedures, such as paying for travel and filing relevant documents with the court, and asked the Court to sanction Nesson over the entire affair.

As we noted last week, the judge has had enough and said that "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."

"I made a mistake by not withdrawing my motion to compel Matthew Oppenheim's deposition immediately after the January 22 date had passed," Nesson wrote the Court yesterday. "I acknowledge and apologize for this, both to you and to my opponents. I wasted the Court's time. I take seriously the Court's warning about imposing sanctions. I thank you for not imposing them. I will make amends."

Sounds like a serious apology. But as IP attorney Ben Sheffner notes, it's actually way, way less than it appears. As Nesson noted in a comment on anti-RIAA lawyer Ray Beckerman's blog, the apology wasn't for trying to depose Oppenheim or for not obeying a host of rules regarding proper notice, but "for not withdrawing [the motion to compel] when the January 22 date had passed without resolution of it."

Err, ok. The whole case has grown so strange that even Beckerman, no friend of the labels, wrote an editorial aside in which he said, "To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible. Please don't ask me where in the federal rules there is a provision for a notice of apology. Last time I looked, there isn't any such provision."

"I can only hope that more good than bad comes out of this nonsense," he added, "but I am not in the least sanguine about it."

"Sanguine" isn't a bad word here, because if this case continues the way it's been going, Tenenbaum could well be bleeding profusely from the pound of flesh the labels are bent on extracting from him by the end of the summer.

O Captain, my Captain!

So the bizarre case continues to lurch along. Today, the Harvard Law students doing much of the work on the case posted an update to their JoelFightsBack.com website saying, "Make no mistake about it: we are a student run team." The first comment on the post, filed by Professor Nesson, says, "make no mistake, we are a faculty run team, with me as Joel's lawyer, captain and supervisor of the team."

But whoever's in charge (the students tell me that Nesson really is the leader) will soon be getting the advice of another lawyer, Boston's Matt Feinberg, who will be advising the team. "We aren't trying to lead a movement against music or copyright or adequate compensation for artists," say the students. "We're just trying to defend Joel. But we know the stakes are high. And that's why we're gathering the best talent there is."

Tenenbaum's trial, scheduled for early this summer, looks certain to provide excellent entertainment value for spectators. On the other hand, as the team correctly points out, losing could cost one Boston University graduate student a life's worth of debt.