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Columbia Law School Professor Banned From Depositions Over Allegations Of Abusive Behavior

There's a lot of history between these parties.

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Crying man scream yellEben Moglen is a law professor at Columbia Law School and the founder of Software Freedom Law Center, which handles pro bono work for open-source software-rights enforcement groups. Moglen is opposing the application for the trademark and logo of the Software Freedom Conservancy. That name isn’t a weird coincidence, the Conservancy was once a wing of the Law Center, before programmer Bradley Kuhn was fired by Moglen.

While that story in and of itself might be medium levels of interesting, what really grabs your attention is the recent order of Trademark Trial and Appeal Board Judge Jennifer L. Elgin. She ruled that Moglen cannot attend the depositions of Kuhn and Karen Sandler, a Conservancy lawyer who is also a former law student of Moglen’s.

The Conservency filed a motion to bar Moglen from attending those depositions, and Judge Elgin found “Respondent has shown good cause for the sought-after protective order,” and “the potential psychological harm to respondent’s witnesses cannot be ameliorated by any [other] board order.” Indeed, Kuhn said his PTSD is in part because of Moglen’s “continued verbal abuse and occasional physical intimidation.”

So what happened between these parties? As reported by the ABA Journal:

According to Elgin, Kuhn had alleged that Moglen:

• Insulted Kuhn’s technological skill and told him that he may be in the wrong job.

• Yelled at Kuhn about a blog post and intimidated him physically and aggressively.

• Made evocative comments in a public setting that may have been intended to refer to the murder of Kuhn’s mother.

• Tried to sit with Kuhn in a restaurant after Kuhn asked him to keep his distance.

• Berated Sandler from the audience when she was on a conference panel.

• Called Kuhn a “psycho” and called Kuhn and Sandler “clowns” in a phone call with a third party.

And as detailed by Law360, Moglen has developed a reputation for aggressive behavior at depositions:

William John Sullivan, director of the Free Software Foundation until last year, told Sandler in an email, attached in the filings, that he came across Moglen in a deposition in New York that was part of a subpoena for the foundation’s records that had been “deemed relevant to patent litigation between two other parties.”

While the deposition was largely handled by lawyers who were not Moglen, the Columbia University professor “would periodically enter the room and interrupt the otherwise low-stakes and even-keeled proceedings to aggressively berate the lawyers from the other two parties for their incompetence and inexperience,” according to Sullivan.

“Most memorably, while standing in a threatening posture, with all others seated, he screamed at one of the young lawyers that he ‘would be going home in a body bag,'” according to the email.

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Moglen opposed the motion to exclude him from the depositions writing, “After decades spent law professing, I guess there are quite a few people who, imagining me cross-examining them, would feel afraid…. Their subjective moods do not constitute a basis for limiting my state-granted right to practice law.” In opposition the motion, Moglen also wrote, “there has never been any doubt I would personally conduct these depositions,” however, he has not entered an appearance as counsel in the matter.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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