Rhode Island Court Hearing Blogs

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Why was the magistrate so curt when Prof. Nesson asked to comment on the request to digitally record the proceedings? He didn’t even look up when he said “No.” Why not at least allow Prof. Nesson to be heard on this point? Despite the authority implied by the abruptness of the magistrate’s response, his voice sounded weak to me—perhaps even a bit nervous. He may have been uncomfortable at the outset—stepping into the middle of long and complicated litigation. Could he have been insecure about maintaining his authority? He is after all very low in the judicial pecking order, and he was facing a Harvard professor and a courtroom packed with law students—surely a larger audience than he was accustomed to. Perhaps the magistrate was concerned he might lose control of the courtroom—if he wasn’t firm and allowed Prof. Nesson to make a speech here, would it be long before the magistrate was no longer “running the show.” As the magistrate walked out through the courtroom door, I could have sworn I saw the bailiff nod to him and say “good job.”

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no first-hand impression, merely hearsay. but by all accounts, Prof. Nesson's presentation was superior. plaintiffs' lawyer was shaky, unprepared, unsure. but then why such uncertainty about which side will "win"? perhaps the shared sensibility that fairness often loses out to the rules, to the "waiver", to the uncontrollable passage of time, to the subpoena and the power of the state. we now fight the power WE created.

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Overall, I thought the hearing went very well. Prof. Nesson’s presentation was much smoother than the other side’s, which seemed to cause the judge to interrupt him less. I also found it interesting that the judge placed such great persuasive weight on the question of whether the Massachusetts court had compelled Joel to allow his own computer’s hard drive to be imaged. The judge seemed to realize that it would be strange if Joel’s parents were ordered to allow their computer to me imaged, while Joel’s computer, on which the alleged infringement actually occurred, did not have to be imaged.

It was exciting to see the motion we had written as a class that morning being discussed at court. Even though the judge denied the motion, it was fun to see how something we did as a class had a direct effect on the real world.


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Above the door where we entered was a large carving of an eagle. It looked a little like this: http://z.hubpages.com/u/26197_f260.jpg .

The District Court of Rhode Island also serves as a post-office. I considered buying stamps while we waited to clear security. They confiscated our electronics, placing each of our cell phones into a separate locker next to the x-ray machine.

Groups exited the elevator at the second floor after clearing security, shuffling uncertainly into the hall while simultaneously re-looping their belts through their pants. As the growing group waited in the hallways, Charlie sat quietly, staring ahead. He turned to some students and asked

--What did you think of the Lenny Bruce story?

Everyone stared at the floor, trying to think or avoiding eye contact or perhaps furiously pretending no question had been asked. Eventually one brave soul attempted a response, about the power of the court being to keep itself above the crap.

Charlie blinked.

--Process is for losers. That’s what that story is about.

--Come in and sit down. We need you out of the hallway.

The marshal escorted us in with his mildly affronted Rhode Island accents. The court staff was not amused. From the marshals to the court reporter, they eyed the students suspiciously, as if we came with the express purpose of amusing ourselves as raucously as possible. A gaggle of students did not comport with their idea of the proper dignity of the court. We waited. An A.P. newsman and a local journalist took seats behind us. Counsel for the Plaintiffs rather anxiously awaited his co-counsel, being assured by the reporter that it was early yet. His co-counsel did arrive shortly, his rumpled suit staring back at us before he took his seat.

--All rise.

Somewhere between a trudge and a jog, the judge made his way to the bench. The proceeding was entered into the record, noting the procedural difficulties from the earlier proceeding in December and that Charlie had been admitted to argue before the court and so had local counsel (“welcome back.”). Counsel made their appearances for the record. Wasting no time, the judge announced he’d received a motion late this morning. Charlie stood up slowly and expectantly.

--The motion is denied. Now…

--Your honor, if I might speak…

--Nope. [And yes. He said, “Nope.”]

Counsel for plaintiffs, the one with the less rumpled suit and the bad hair, sat up a little straighter, as if congratulating himself on being a real lawyer without a classroom of students behind him.

--Anything else?

Eagerly, the bad-haired lawyer began talking about the filing by the respondents and his confusion as to who Charlie was representing in these proceedings. Not quite rolling his eyes, the judge turned to Charlie and the local attorney.

--We are appearing for Judith and Arthur Tenenbaum in this matter.

Still imagining he had an edge, the bad-haired lawyer explained that the motion had been brought pro-se by Ms. Tenenbaum (he insisted on calling her Ms. The judge referred to her as Mrs.) but signed by Charlie too, as if exasperated by the silliness of this defense and inviting the judge to share his superior attitude (You and I judge, we get this. What are these crazy kids up to? This is law). The judge was having none of it.

--In order to file with the court, Mrs. Tenenbaum had to file pro se because her attorneys were not yet admitted. That explains that. Let’s get started.

Charlie stands and the judge attempts not to notice him.

--I would make an objection.

--We haven’t started yet.

--I would make an objection to this proceeding.

As he laid out his grounds I half expected him to turn to us to continue a lecture. The judge wasn’t sure whether to be amused or annoyed, but Charlie made his objection and sat back down. The proceedings began, Charlie’s white digital recorder sleeping on the empty table in front of him.

Making a show of collecting his papers, bad hair made his way to the podium. Before he could begin, the judge interjected his concern that they were seeking to take a family computer, that was doubtless full of private information, probably private medical information about the family, and that it was not clear to him that the emachine was necessary. Bad hair engaged strenuously, first complaining that they didn’t know there was privileged information on the machine and suggesting that Ms. Tenenbaum had lied or misled the record companies in her deposition.

--I haven’t seen that deposition.

--I have a copy right here your honor. I’d be happy to give the court a copy, your honor.

The judge turned to Charlie. --Do you have a transcript of the deposition?

Charlie did not stand or change the direction of his gaze.

--We have no money. We cannot afford to get transcripts of the deposition.

--Do you have a copy for respondents?

--Yes, your honor.

Retreating from characterizing Ms. Tenenbaum’s deceptions in the deposition, Bad hair went on to describe the process as quick and easy, and assured the court that the Tenenbaums could create a privilege log, the contents of which would be protected. Moreover, he stressed that they needed the computer because Joel, in his deposition had confessed his downloading activities on the emachine.

--Where is that?

--He said he used Kazaa, your honor.

--Is that somewhere else in the deposition, or is that what you’ve got here in the motion?

There was a slight pause.

--Yes, your honor.

The judge raised his eyebrows and half glowered from the bench as he shuffled the two pages.

--“Maybe,” “might have,” “I don’t know.” This doesn’t sound like an admission to me.

--Yes, your honor.

The judge went back to his concern about the copying of the hard drive. Perhaps misreading the court’s concern, bad hair repeatedly assured the court that the Plaintiffs would pay for the copying. The court also expressed confusion as to which computer was the emachine of the many computers involved in the case. As bad hair wrapped up and delivered the thick copies of the depositions of Joel, Judy, and Arthur Tenenbaum to the court and to Charlie, it again emphasized how cavalier the judge’s off-the-cuff dismissal of our motion had been, given the probable importance of the depositions to making sense of the case.

Charlie stood up and gave our arguments from class. Privilege and undue burden. (You can read the quote about no greater violation of privacy than to have to disgorge the contents of your computer online—there’s a link in yesterday’s news@law). He also gave the court a brief lesson in computers—how privileged or private information my still be in the hard drive even if it has been deleted.

After Charlie, bad hair stood up and hummed a bit about not wanting privileged information, and how everybody’s doing it, and how it would be okay. The judge pushed him a little, and he seemed to think the best strategy was to answer not quite the same question the judge had asked.

Charlie then again stated his objections to the whole proceeding, holding up his tiny recording device and challenging the court to think of a reason not to allow it when the respondents couldn’t even afford transcripts and the plaintiffs have the full might of the state pressing down upon them. It was stirring. If you weren’t there, you missed out.

As we were heading down the stairs, Judy Tenenbaum, donning her elbow-length bright orange gloves, vented her frustrations about the things bad hair had said about the depositions, about the timing, the computers, and herself. It would be terribly frustrating to have a response to something being said, and be unable to make it because of procedure. Perhaps those raucous trials we read about in the history of the jury had a more satisfying way of going about this. They call it the right to confront, but when it’s all sanitized by procedure and done on your behalf through lawyers, it cannot be so satisfyingly confrontational.

A single marshal, bearing an uncanny resemblance to Mr. Magoo, was unlocking each individual locker one at a time, retrieving the single cell phone inside, and returning it to its owner. After scowling at us the whole way in, we’d thought they’d speed us right out. We were wrong.

Eventually the group was reassembled outside the courthouse, where a film crew was interviewing Charlie. Charlie may have a very good point about the legitimate needs of poorer litigants to make their own records of trials, but the spectacle outside the courthouse illustrated a good reason to continue to prohibit at least video recordings. The assembled law students were terribly aware of the camera, standing up straighter, adopting looks of fixed nonchalance. In a system that places so much on the judge and jury’s ability to observe the demeanor and comportment of the witnesses, it could skew things strangely to have a camera fixed upon them.




The hearing started with the magistrate refusing to allow a digital recording but instead saying that a transcript of the proceeding would be available. Professor Nesson asked to say something with respect to the motion to permit recording of the event by the magistrate denied his request.

The RIAA lawyers then proceeded to present their case to the magistrate. The magistrate was confused because they had only provided a couple of pages from Joel’s deposition, so he was having trouble determining the timeframe of Joel’s downloading activities and therefore whether his parents’ computer was the same one he used to originally download the songs at issue. The RIAA lawyers were vague about the timeframe, but argued that the 7 songs at issue were meant to be “representative” of Joel’s copyright violations, and therefore there may be evidence to corroborate their infringement claim because in his deposition he mentioned that he may have downloaded and used Kazaa on the emachine that was being subpoenaed.

The magistrate questioned the RIAA lawyers as to how they would protect the privileged information on the emachine. They said that they hadn’t known that Judith Tenenbaum was a lawyer until the day before, and that in her deposition she had only said that there was personal, privileged information about her children and medical information, and when they asked her what was on the computer, she said recipes and stuff. They suggested that there was something shifty going on with Judith’s evasive behavior during the deposition. The magistrate didn’t seem persuaded by this, and noted that the type of information she had mentioned in the deposition could still be considered privileged, and he asked them how they intended to protect the information and who would be handling the imaging of the hard drive. The RIAA lawyers said that they would accept the responsibility to pay for the imaging, although they suggested that the costs could hypothetically be shared, and that the experts would work for them, although Judith Tenenbaum could flag privileged information that the experts would be prevented from sharing through protective court orders. They mentioned that this was the process that occurred in other jurisdictions in similar cases. The judge questioned them further, ascertaining that despite the court orders and layers of experts, some 3rd party would still see the privileged information.

Nesson then presented Judith’s side. He argued that compelling imaging of the hard drive would place an undue burden on Judith. The first reason he gave was that it would require her to spend a lot of time flagging the information. He then noted that because when you delete or modify files, they disappear from a file index but are still on the hard drive, they are still available on the hard drive, which would require her to sort through the fragments, which would be especially burdensome on her. He also noted that there was no evidence that this computer was used to download songs and it was different from the one Joel discussed for the majority of his deposition. The magistrate asked for copies of the deposition and asked if Nesson had copies, to which he replied that their side didn’t have the money to pay for copies of the deposition or transcripts of the proceeding, so the denial of the digital recording infringed on Judith’s Constitutional rights. The judge also asked when Judge Gorton In Boston would rule on the imaging of Joel’s computers, which is January 22.

I think that was it, then we left and Nesson and Judith gave interviews to the media, and we all rode the train home. Oh yeah, and Judith made us delicious cookies.


One observation: In a display which was very encouraging for the Tenenbaums side, the judge of his own accord mentioned the substantial burden imposed on a family by revealing not only privileged material, but also merely private and intimate data which could be expected to be found on a family computer. The record companies’ attorney’s response was focused myopically on the issue of attorney-client privilege, curiously arguing that that claim should be waived because they had not been informed during an earlier deposition that Joel’s mother was an attorney. My question is why the attorney focused so much on this waiver issue? If it had been me, and the judge had already made clear from the beginning that the burden went beyond the privileged material to merely private material, I would have moved on to try to balance the equation by articulating the compelling probative value of the potential evidence to be found on the computer. The choice to focus on the waiver issue and the failure to argue the vital relevance of the evidence in question gives me the impression that the computer is not in fact particularly relevant to the case. For the Tenenbaums sake, hopefully it gave the judge that impression as well.

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Tuesday, January 6, 2009

We traveled to Rhode Island, most Prof Nesson’s winter evidence class.

A hearing before a D. R.I. magistrate over whether to compel Joel’s parents to hand over their computer for imaging. <wicked laugh>

We were not entirely welcome; I think they thought we were a bunch of high school kids who needed to be admonished to be polite, sit up straight, not sleep or read, and to respect his magistry. Quite nice courtroom, if a bit small. Classy off-white, almost eggshell, painted walls with dark wood accents. The magistrate’s bench, however, was off center in the room, and more in front of the plaintiff than the defendant.

First order was Nesson’s motion to allow digital audio recording. Magistrate would hear none of it. Very curt, which worked really well with his mild Rhode Island accent.

Plaintiff’s attorney gives his piece, arguing the necessity and how it’s no big deal; c’mon your honor, we just want to stick the tip of our machine into the hard drive, it’ll be half an hour tops. They might even enjoy it. No real sense of concern for the violation entailed, for a privacy issue, for the gravity of the intrusion, which could not be mitigated by his snazzy new order. He wasn’t convincing the magistrate terribly well that the family computer was terribly relevant; he kept pointing to “maybe there’s Kazaa on there” statements from Joel in his depo. Nesson didn’t have the depo; plaintiff’s counsel was told to provide it. 278 pages, I think.

Nesson and Joel couldn’t afford the depo, just as they couldn’t afford to buy a transcript of the hearing that could not be recorded digitally. But the magistrate didn’t order a recording provided to Nesson. Oh, and we students weren’t allowed to take notes. Instead we could focus our eyes on counsel. Plaintiff’s counsel’s suit was surprisingly wrinkled.

Nesson argued the undue burden of the proposed order: of the atty-client privilege issues where one of the family is a lawyer using the family computer for lawyer-client communications, of the simple privacy of family e-mails and documents and bad teenage poetry and who knows what else. If the motion is granted, at the very least some computer forensics team will know what else, and might even enjoy the bad poetry. Even if it had been deleted in a fit of angst it might still be recoverable. And then delivered to the Record Industry Men for whom the Tenenbaums have no sense of connection or affection or anything (I assume) but questions of “why the hell us?” Really bad reality show perhaps? I wonder is they own the rights to the idea now.

Nesson brought back up his recording, objected to the fact that the hearing was going on at all, unrecorded. Not Constitutional. The magistrate listened. He seemed frightened and in a hurry, odd, since how often does a talented record company bulldog face off against the so-styled Dean of Cyberspace in a tiny courtroom in Providence?

No decision, we’ll wait and see. Magistrate suggested he was waiting to see what Judge Gertner, the good judge to the North, would do on related motions. A hearing with her on 22 January.

The Tenenbaums still have their computer, and the Record men with the imagers haven’t been allowed to feel up its contents yet. (Win.) No recording. (Lose.) Media all over the case, with several stories the next day. People can’t feel good about this, and hopefully are getting pissed.

The phrase “against the law” is thrown around too casually.

Providence’s downtown is architecturally semi-snazzy, and amazingly compact and traversable.

jr

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“Why didn’t you tell me this at the beginning of class?” – that was my reaction when I found out that our transportation costs for the Providence trip would be paid for by the law school. I had been sweating what I knew would amount to almost $20 in subway and train fees for the previous two and half hours, and I’m sure I would have been able to get a better grasp on why the law lord saw fit to enshrine Rule 104 if my mind had been all in one place during class. Breathing a sigh of relief, I waited eagerly as the commuter rail passes were distributed – about twenty-five of them.

When we arrived at the courthouse in Providence, I was surprised at the steps I was required to take to even make an entrance: empty pockets, hope I don’t have any weapons on me, present ID, have belongings x-rayed, pass through metal detector, give up cell phone to one guard, receive a numbered tag from another, enter elevator, and press the “up” button. When the doors opened, I had entered an artificially created world; this was where the law reigned supreme. In the rest of life, the law is a backdrop against which humans perform their daily tasks, providing stability and predictability. But in the courthouse, the law wore brass knuckles.

Like when the judge began the hearing by denying the Tennenbaums’ motion to allow digital recording (which had been drafted and submitted during class that morning), it was a simple as him saying “No.” Nesson’s request to explain why recording should be allowed was also denied, and that was the end of the story. There were no boos from the spectators or gesticulations at the respondent’s table – either could have spelled an overnight stay in Providence, and our commuter rail passes expired at midnight.

When the parties got down to the substance of the hearing – should the RIAA be able to make a mirror image of the Tennenbaums’ hard drive – my predictions were correct: the respondents had the better argument, and it seemed from Judge Almond’s behavior that he was leaning in their favor. Of course, a decision was not reached on the spot, and the judge was sent off by the movants with 400 pages of bedtime reading to consult before making his final decision. But if it was a boxing match and I was a judge, I would have given the win to Nesson and the respondents.

Which is why I was surprised when Nesson closed his argument before the court not with a summation of why the Tennenbaums’ should win on the merits, but with a four minute explanation of his objection to the denial of the motion for digital recording of the hearing, including even a vague invocation of the U.S. Constitution as grounds for granting the motion. It seemed like, once the objection had been made, all Nesson needed to do was sum up and sit down, not distract the judge with an argument that would do nothing to help the Tennenbaums prevent their computer from being imaged. And if the reason that obtaining a digital recording was so important was because obtaining a typed transcript was prohibitively expensive, maybe the $500 spent on getting the students to Providence and back again would have been better spent elsewhere.

In the end, I think the digital recording issue is important – not for Joel Tennenbaum in particular, but for Tennenbaum as a representative of the class of people affected by the RIAA litigation campaign. Joel and his family didn’t really need a digital recording or a typed transcript of that hearing, because they had twenty-five students present who – two days later – would engage in mass-blogging of the event as a class assignment. But the twenty thousand other families that have been similarly affected were not so lucky. Most did not have a brilliant law professor as their advocate or a team of law students as their support. Most were simply served with complaints alleging massive statutory damages, and – without the ability to afford counsel – settled for thousands of dollars out of fear of losing at trial, all on dubious legal footing. On the day of the hearing, I scoffed at the notion that a class action counterclaim against the RIAA would ever get off the ground. Two days later, I think it has a legitimate shot. What is important to remember is that, although Joel is technically representing the class of people targeted by the RIAA, most of the other families have actually been in an even tougher position.

Blaffy Blooffy

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A melancholy affair; motion practice in front of a Rhode Island magistrate judge; we arrive hoping to fight with monsters, and we are faced with this sad man in his crumpled suit. We want to proclaim “sic semper tyrannis,” but the RIAA no longer seems even remotely tyrannical. These are simply the final skirmishes in a litigious war that they have already lost. And they did not lose the war by the inadequacy of their legal arguments, but through the ultimately futile nature of their “deterrence” strategy and the vagaries of public opinion. A melancholy affair.

Indeed, fighting the RIAA in litigation might prove counterproductive, by sustaining the idea that the RIAA is some omnipotent monster that will destroy us all in the end. Baudrillard says:

[The RIAA], immoral and without scruples, can only function behind a moral superstructure, and whoever revives this public morality (through indignation, denunciation, etc.) works spontaneously for the order of [The RIAA]… One must not resist this process by trying to confront the system and destroy it, because this system that is dying from being dispossessed of its death expects nothing but that from us: that we give the system back its death, that we revive it through the negative. End of revolutionary praxis, end of the dialectic.

We did not win through activism and protest, but by our inertia, our indifference, and our simple weight of numbers.

If the hearing proved one thing to me, it was that the RIAA is completely impotent in its attempts to extract damages from copyright infringers in courts of law. Today I wanted a copy of “A Matter of Interpretation,” but I was too lazy to go get a copy from the library: within thirty seconds, *poof,* I had a nice digital copy on my hard drive. How did it get there? I don’t fully recall. Might I be sued? Yes. But if I were sued, it would not be a sign of the strength of the copyright holder, but of its weakness. It was so easy to do that even a largely risk-averse person (a lawyer, no less!) such as myself did not hesitate. And on the other side of the equation, if Justice Scalia or the Princeton University Press wants to sue me, they will have to drag me into court and conduct discovery and meet all of the other legal burdens placed in front of them. Sometimes, nothing can be a real cool hand.

Even if the RIAA ultimately prevails in the Rhode Island hearing, they are still a bunch of losers. Theirs is not a winning battle, and their crusade was so foolish that only an idealist could have invented it. By the looks of them, you would swear that Jaws was coming; by the screams of them you would swear I’m sawin’ someone; by the way they runnin’ you would swear “The Law” was coming. Litigation is not their friend.

But in the distance, someone is whispering something about “net neutrality.”

Knowledge is free. Expect us.

RJB


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I would add one observation: upon discovering that there is privileged material on the Tenembaum's computer, the RIAA requested a court protective order to respect that information. It soon became clear that the judged did not believe this was an adequate solution, although he asked for a copy of their suggested protective order, since someone other than the Tenenbaums or their attorneys would have to sift through the imaged information on the computer and inevitably see information that is privileged. While there was no mention of this, why would we even expect the technician to adequately recognize privileged material? The judge asked repeatedly who the computer technician would be answerable to, who would pay him/her etc. After explaining that the RIAA would pay for the expert and that the imaging would only take an hour of the Tenembaums' time (as if time was an issue), it appeared that the RIAA attorney seemed oblivious to the ethical questions that were raised in his answer.

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We followed our Fearless Captain to the great state of Rhode Island. Wherein he faced the Combined Might of the Judicial Power of the United States and the delegated Litigative Power of the recording industry. We hastened to join battle; though this was a mere skirmish in the RIAA's campaign (we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender!), at stake was the dignity and privacy of the Tenenbaums, innocent bystanders (collateral damage to the RIAA?). For the recording industry seeks to inspect the most private of any form of personal information – the hard drives of family home computers. The government official, perhaps styling himself judge though indeed naught more than a mere Functionary (that is to say, Magistrate), summarily rebuffed our pleas to make a recording. What objective did this decision further -- surely the efficiency and transparency of the Judicial Process would be improved by allowing parties to make inexpensive audio recordings? Was this to protect the livelihood of court reporters? Indeed, the official suggested as much – buy an official transcript, he all but intoned; this, despite our pleas of impecunity. Opposing counsel displayed an unseemly obsession with his own barely-unstated allegation that Mrs. Tenenbaum had lied in her deposition about her status as an attorney. Since neither our party, nor the official, possessed copies of said deposition, the matter did not proceed further. Instead, the official was more concerned with the identity of the eMachine – which computer was it? did it possess a hard drive from an older computer?, and with the prospect of yet another third party, an outside expert (the imager), having access to the personal and privileged files of the Tenenbaums. The industry's counsel, displaying either actual or feigned obliviousness, ignored these concerns, answering that plaintiffs themselves would take adequate precautions in analyzing the data. Rise, then, our Fearless Captain! Displaying an eloquence seldom seen in this Age of Mortals, the Captain valiantly defended the Tenenbaums, crafting simple yet persuasive arguments of privilege, undue burden, invasion of private materials; yea, raising a clarion call to those of the Digital Age: rise up and embrace your future, children of the Internets! We returned victors, perhaps, for a day, the foe not vanquished, but held at bay once more.

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In his presentation, Attorney for plaintiffs seemed so d i s t r a c t e d: We didn’t know Ms. Tenenbaum was a lawyer! We didn’t know there may be attorney-client privileged material on the computer! Who exactly are those nutty lawyers at the other table representing anyway?

That Attorney’s presentation was emotional – pity us, Magistrate, for the other side hasn’t been playing by our rules. The Magistrate didn’t want to pity anyone, and tried to push plaintiffs back on track, back to the heart of the matter, which was the concern about the undue burden to the Tenenbaums of releasing incredibly private information into the hands of the enemy. Yet still distracted, Attorney for plaintiffs talked about the ease of the imaging – we’ll do it anywhere the Tenenbaums want to, and it won’t even take that long. Pointless, intimated the Magistrate, because that’s not the matter. Not at all.

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