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?
MOTION TO RECONSIDER ORDER PROHIBITING DIGITAL RECORDING OF A DEPOSITION
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.
[snip]
Respectfully submitted,
Charles Nesson
Counsel for Joel Tenenbaum
Dated: May 4, 2009