December 2009

Tenenbaum Final Judgment

by Lee Gesmer on December 8, 2009

Tenenbaum Final Judgment

Update: Link to First Circuit’s Decision Rejecting Constitutional Grounds for Reducing Statutory Damages, issued September 16, 2011.


Final judgment in Sony v. Tenenbaum entered by Judge Nancy Gertner today.  The 30 day appeal clock starts to run.  Should be interesting to see what the First Circuit does with this one, although I suspect that the betting is heavy in favor of quick affirmance.

A few choice quotes from Judge Gertner’s opinion, which is provided in full below on

“the Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenebaum to make his best case for fair use.…The Court did what it could to focus the issue, notwithstanding what can only be described as a truly chaotic defense.”

Tenenbaum “tailor[ed] his fair use defense to suggest a modest exception to copyright protections,” he “mounted a broadside attack that would excuse all file sharing for private enjoyment.

Read the full article

Guest post by Gesmer Updegrove attorney Nancy Cremins.


On December 1, 2009, the Massachusetts Superior Court announced the implementation of a Discovery Pilot Project in the Superior Court’s Business Litigation Session (BLS). A link to the press release announcement is here, and the text of the Project here.

The BLS Discovery Pilot Project will be implemented on January 4, 2010 and was developed as the result of a joint effort of the BLS judges and the BLS Advisory Committee, in an effort to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery.

The BLS Pilot Project incorporates some of the principles set forth in the March 2009 Final Report of the American College of Trial Lawyers Task Force on Discovery and the Institute for Advancement of the American Legal System, which (no surprise) found the civil justice system “in serious need of repair.”

The guiding principal of the BLS Pilot Project is to tie the scope of discovery to the magnitude of the claims at issue.… Read the full article

I’ve been getting emails like the one below for months.  Maybe if I get one from a prospective client in Nigeria I’ll head over for a visit …..

Dear Desired Lawyer/Lawfirm,

Greetings to you from Nippon Steel Corporation

With all due respect, please kindly confirm the receipt of this mail  if you are in a position to represent on our company in matters of  delinquent accounts.

We contact you to represent our company after a careful review of your profile. We are of the opinion that you represent us in the United States of America  in order for us to recover monies due to our  organization by our American clients.

In order to achieve these objectives a good and reputable lawyer or law firm will be required to handle this service. Please advice once  you take in this issue.

P.S. If you are not in the position to represent us we would be very glad if you could refer us to any law firm in North America or Canada  that could.

Read the full article

Here is a link to Judge Judith Fabricant’s recent decision in Stein v. Clinical Data (reported on the front page of the November 30, 2009 Mass Lawyer’s Weekly), where she found that the plaintiff had destroyed evidence.  Judge Fabricant sanctioned the plaintiff in this case by dismissing his case and ordering him to pay almost a quarter of a million dollars in attorney’s fees and costs to the defendant.  These cases are relatively rare (since the party who destroys evidence rarely is caught), but the consequences to the party who engages in this kind of conduct can be devastating.

Stein v. Clinical Data (SpoilatIon)Read the full article