is this disrespect

here’s my motion to judge gertner which i did not file because my team thought it disrespectful. i mean and meant no disrespect. my effort was to communicate my objection and my thought directly. i feel the pace of the case requires fluid direct response lest the message be lost in falling over itself in form as this objection was lost because my team thought it in bad form. then let this be a teaching and learning moment. is this bad form, and if so why, and should it make a difference if the alternative comes at cost?


I ask you to reconsider your order prohibiting me from digitally recording a telephonic deposition. I ask you to distinguish rhetorical space for the function of telephonic conference among judge and lawyers from the different rhetorical space suited to the function of on-the-record deposition. I am not here asserting either the right or the intention of immediately serving the digital record of this deposition to the net (thank you to my opponents for their parentheses). I will accede to your considered judgment whatever it may be, albeit with retained objection.

In response to a request from opposing counsel to agree to this deposition by telephone I said yes if I can audio record it. I am not available at the time scheduled for the deposition, nor for certain are any of the five students who have been admitted provisionally to the bar of the court to practice with me in this case. But I would like to listen to it and be able to use a record of it in conferring with my team. If the deposition is to be used at trial I would like to have the deponent’s voice and tone as well as the stenographer’s text (which we protest at having to purchase if we are to have a record at all). My assistant is able without cost to call in on the conference line and audio record what transpires with my digital recorder. As I read the federal rules of civil procedure I am at least entitled to an exercise of your discretion to permit this.

I claim a right to audio record this deposition as part of Joel’s right to counsel. This is the cheapest and most efficient way of evidencing it.


Respectfully submitted,

Charles Nesson
Counsel for Joel Tenenbaum

Dated: May 4, 2009

3 Responses to “is this disrespect”

  • Seems reasonable to me, but what do I know? I was expecting something far worse from your introduction!

  • I can see a judge of a certain character being mildly bemused and upset by the motion, but overall it is not that bad. I would have changed a couple things. I would have dropped the reference to opposing counsel and the protest at paying the transcript fee. I also would have dropped your “I will accede” sentence, it is unnecessary.

    Honestly, you could probably shorten the thing a bit, removed the worries about form, and made a solid objection.

    On the other hand, if I was a judge, I would want a brief explanation of why this should be allowed and contrast that with the pros and cons of allowing it versus not.

  • Well, I would not call it disrespectful to the judge.

    But maybe your wishes are disrespectful to your american civil
    procedure procedures?

    You want a free copy of a transcript?
    How dare you!

    What I (as a german guy with a civil court proceedings background in
    this country where the loser pays the winners cost) understand from my
    stereotypical knowledge of your US civil law is that the rich guys
    always win in your country!

    You don’t have the money to pay the better experts? -> you lose!

    You want papers for free that other people have to work for? -> what
    are you? A freeleeching copyrightinfringer? = you lose!

    From what *law* do you derive your “right” to have a record for free?
    Law isn’t for free in your country and not for the poor.

    (To bad written words don’t carry tone of voice and body
    language/facial expression. Forstanding comment might be
    misinterpreted without those additional metadata!)


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