Court fight: Mann’s lawyer and UVa counsel -vs- ATI

UPDATE: Link to the full court transcript added below.

People send me stuff. The stuff today is a transcript of the recent court debate over the FOIA requests for Mike Mann’s UVa emails:

It seems that Dr. Mann’s lawyer and the UVa counsel are arguing strongly that Mike Mann’s emails are somehow “special”. But, the judge doesn’t seem too impressed, especially with his “purity of heart” remark, and he’s right, the law is blind to that.

It seems to me that there must be something quite damning in those emails, or they would not be fighting so hard to prevent their release. I mean seriously, the “hockey stick” is a world known bit of science, what could possibly be so “proprietary” that is warrants an exception for Mann where Wegman, Singer, Michaels and others at UVa have none?

Some excerpts below, followed by a PDF of the partial transcript with highlights.

MR. FONTAINE: Good morning, Your

10 Honor. My name is Peter Fontaine; I am here to

11 appear on behalf of Dr. Michael Mann, who is a

12 respondent aligned with the University of

13 Virginia in this matter, his former employer.

14 I would like to add some perspective

15 to the timeline and the arguments by my

16 co-counsel, Rick Kast here, to try to provide a

17 little more human aspect of this case and to

18 explain why the discovery propounded upon

19 Dr. Mann is completely improper and, indeed,

20 vexatious.

21 Briefly, Your Honor, both the timing

22 and the scope of the petitioners’ discovery in

1 this case, when you look back at the course of

2 this case, is quite clearly calculated, in our

3 view, to annoy and harass Dr. Mann; and really

4 to punish him for exercising his right to

5 petition this court to intervene as respondent

6 in the case, to protect the documents at issue

7 – which comprise his e-mail correspondence both

8 to and from, literally, tens, if not hundreds,

9 of scientists across the world over the six-year

10 period of his employment here at the university

11 where he was a professor who taught classes in

12 climate change and conducted groundbreaking

13 research on issues such as paleoclimatology.

14 THE COURT: Let me interrupt you a

15 second.

16 MR. FONTAINE: Yes, sir.

17 THE COURT: Modern American debate

18 seems to require us to accuse adversaries of

19 improper motives. We see that in the public

20 forum all the time.

21 What if, for general purposes, all of

22 those bad motives are true? How does it effect

1 the legal right to FOIA protection?

2 Are we — do we have a purity of heart

3 test before we apply FOIA’s legislative acts?

4 MR. FONTAINE: No, Your Honor, the law

5 on that is quite clear. It is not really the

6 Court’s function to try to weigh the motives.

7 THE COURT: Well, then, why are you

8 arguing that to me?

9 MR. FONTAINE: I am arguing that, Your

10 Honor, because it goes to the issue of

11 Dr. Mann’s intervention in this case where we

12 articulated, and submitted for the Court’s

13 review, an affidavit which outlined his

14 interests in being able –

15 THE COURT: I am distinguishing the

16 existence of an interest from the impact on your

17 client. And I hear it in various categories,

18 like — is he required under any court order in

19 this process to do anything by way of

20 production, or is it the university?

21 MR. FONTAINE: Your Honor, I was going

22 to get to that.

1 THE COURT: All right. I will stop

2 interrupting you and let you go then. Go ahead.

3 MR. FONTAINE: It is a good line of

4 inquiry because the discovery is propounded not

5 just upon the university, but on Dr. Mann

6 individually. He is a professor at Penn State

7 University. He lives in Pennsylvania.

8 His whole reason for being in this

9 case was because under the terms of the first

10 protective order, the e-mails from his entire

11 body of work here at the university were to be

12 disclosed to these two gentlemen, counsel for

13 the petitioners and, in fact, members of the

14 board of board of directors of ATI, for purposes

15 of a protective order review.

16 And it was Dr. Mann’s fervent belief

17 that the disclosure of those e-mails — even

18 under the terms of a protective order — which

19 would have allowed people, these two individuals

20 to review all of his e-mails, the people with

21 whom he corresponded and associated, the ideas

22 that he expressed, all of that information was

Page 32

1 an improper invasion of his rights.

========================================

20 MR. FONTAINE: Yes. And, Your Honor,

21 the Court was quite clear in stating that the

22 interpretation of the exemptions under FOIA is,

1 indeed, informed by the various state and

2 Federal constitutional protections that apply to

3 certain information that may be in possession of

4 the government, but nevertheless should not be

5 disclosed because it implicates those very

6 interests.

7 And that’s exactly the case we have

8 here. We have records that were the writings of

9 a professor, freely exchanged with other

10 scientists across the world, that are subject to

11 an exemption. And there is a balancing test

12 that this court –

13 THE COURT: An exemption listed in

14 FOIA.

15 MR. FONTAINE: Correct. I don’t have

16 it in front of me, but it basically says

17 writings and information of a scholarly nature,

18 that of a proprietary nature that are developed

19 by or for the professor are considered exempt,

20 and the university has wide discretion to decide

21 what that is. Unless it has been copyrighted,

22 formally copyrighted, or otherwise disseminated,

Page 70

1 it is subject to being withheld; which is the

2 case that we have here.

=========================================

17 THE COURT: Remember my remark about

18 purity of heart?

19 DR. SCHNARE: Yes, sir.

20 THE COURT: Philosophical or other

21 views on this don’t help me decide what FOIA

22 means under Virginia law.

Beginning on p. 79:

9 I would like to begin by setting these

10 issues into a context, Your Honor, so I am going

11 to tell you a story. It is a true story. I

12 think it is instructive, and we hope you will

13 find something useful in it.

14 It is a case where an author published

15 a professor’s e-mails obtained under the Freedom

16 of Information Act of Virginia. This is,

17 apparently, the horror that both the respondents

18 and the intervener want to prevent.

19 Professor Edward Wegman of George

20 Mason University was asked by the U.S. House of

21 Representatives to file a report on the

22 statistical validity of a 1998 paper published

Page 80

1 by certain authors, including lead author,

2 Michael Mann.

3 While he was preparing the report, a

4 person qualified to seek the records under the

5 Freedom of Information Act of Virginia sought

6 Professor Wegman’s e-mails. The professor

7 responded correctly, we believe, that “it is not

8 clear to me that before journal peer review

9 process is complete that we have an academic

10 obligation to disclose the details of our

11 methods before publication.”

12 Once the Wegman report was published,

13 GMU received a new FOIA requesting Professor

14 Wegman’s e-mails. GMU responded by providing

15 approximately 3,000 pages of responsive records

16 to “USA Today” within 14 days; in electronic

17 format without charge, litigation, or other

18 delaying tactics as is appropriate under the

19 statute.

20 In making their timely response, not

21 only did GMU not credit concerns about copyright

22 interests in the e-mails or any threat to

1 academic freedom, neither did anyone else.

2 We know this because we sent a Freedom

3 of Information Act request to GMU asking for any

4 records reflecting discussion of such concerns,

5 and they responded that they had received none

6 and they had none of their own.

7 Michael Mann did not rise in support

8 of Wegman’s copyright interests or his need for

9 academic freedom. Neither did the Union of

10 Concerned Scientists who was underwriting part

11 of Mr. Mann’s participation in this matter

12 today. Nor did the university, nor even a

13 single member of their faculty. Nor did the

14 American Association of University Professors,

15 who had already filed a letter to this court on

16 this case, or any other group.

17 Then a publishing house, Columbia

18 University Press, published a book that

19 included, cited to, and quoted the Wegman

20 e-mails, e-mails obtained under the Virginia

21 FOIA. They showed no concern about a copyright

22 interest in those e-mails, either.

Page 82

1 And the author of the book showed no

2 concern either about the copyright interest

3 Wegman had or any threat to academic freedom

4 that Wegman might suffer. He showed utterly no

5 concern about publication of these e-mails and

6 whether they would chill academic work in the

7 correspondence of academicians during the

8 research process.

9 And who, Your Honor, is this author?

10 Michael Mann. This (indicating) is his recent

11 book. These (indicating) are the tags showing

12 where he referenced the Wegman e-mails, and

13 where he cited them and where he quoted them;

14 all of them received under the Virginia Freedom

15 of Information Act, all of them received after

16 Wegman published his work and it was open and

17 passed peer review and open to public review.

18 Now, we tell you that story because it

19 is important to understand the nature of this

20 case and the nature of Mr. Mann whose e-mails we

21 sought.

================================================

The PDF of the excerpts: Mann_April_Transcript

UPDATE: The full transcript is here on ATI’s website.

About these ads

100 thoughts on “Court fight: Mann’s lawyer and UVa counsel -vs- ATI

  1. Love the story at the end. Still not sure they won’t find some new loophole though.

    Wouldn’t it be lovely if they have to release them and the whole CAGW thing is destroyed out of Manns mouth though?

  2. Maybe Mann’s emails have all sorts of contacts with BP, Royal Dutch Shell, and other big bad oil companies and their fellow traveling NGOs. Revelation of such will make for lots of good jokes. It will also provide fun watching the Ayn Rand-type lunatics try to figure out “How come those guys aren’t on our side???” There could be lots petty nasty stuff too, even better!

  3. Mr. Manns communications should be made at least as transparent as his thin skin……

  4. Wonder if he isn’t hiding any more CAGW flaws, but is concerned other activites that would sully his name are described. Nothing illegal perhaps but something along the lines of how he enjoys to much scotch or something more ‘damaging to his character.’ Frankly I think most will ignore things like that. I only really care about his research.

  5. We don’t need wind power … just couple a dynamo to the ghost of Tom Jefferson. 36000 RPM.

  6. I love this observation – well done “THE COURT”

    Page 167
    1 THE COURT: Why? Why does the general
    2 public have to trust scientists?
    3 I am being — for once others will
    4 laugh when do I this. That is a populist view,
    5 isn’t it? Why do we know what government is
    6 thinking and doing?
    7 They may be smarter than us, and they
    8 may know more about expert subjects and all of
    9 the rest of it, but why do we have access to the
    10 process? Why would we yield to peer review
    11 panels?

  7. Righteous inner certainty and self-diagnosed purity of heart: the new criteria of truth, morals, and legal immunity brought to you with cynical sincerity by Michael Mann and the AGW crowd.

  8. Could you reformat this so that it’s readable?

    [It is easy to read on my computer. ~dbs, mod.]

  9. Did Prof. Mann’s lawyer forget to advise Mann that he should copyright his e-mails if not also his infamous hockey stick?

  10. The longer this goes on, the more I’m certain that we’re going to see something truly ruinous to Mann and those who’ve embraced Mannian science.

    That is, IF we see anything.

  11. Attorney: Mr Mann’s motives are oh so noble and therefore he is except from the rules.

    The Court: Purity of heart doesn’t matter a jot, even in the unlikely event his heart is as pure as the driven snow.

    Methinks Mr Fontaine needs to make some “adjustments” to his presentation of the evidence.

  12. Between this and the ACA before SCOTUS, I have seen some good lawyering, and some really bad. Fortunately the good guys have been doing well.

  13. It appears Mann’s lawyer is a co-conspirator. Can a lawyer get disbarred by lying to a judge after the judge expicitly tells him to avoid a particular argument and he goes right ahead with it anyway?

    (It appears Mann either has one huge ego to protect, or a lot of dirt. In this case I think the dirt is bigger than his ego.)

  14. Hide the data, hide the decline, hide FOI emails. Hide, hide, hide behind….. The group think fortress is slowly coming down as they retrench.

    Ouch!

    21 What if, for general purposes, all of
    22 those bad motives are true? How does it effect
    1 the legal right to FOIA protection?
    2 Are we — do we have a purity of heart
    3 test before we apply FOIA’s legislative acts?
    4 MR. FONTAINE: No, Your Honor, the law
    5 on that is quite clear. It is not really the
    6 Court’s function to try to weigh the motives.
    7 THE COURT: Well, then, why are you
    8 arguing that to me?

  15. “Neither did the Union of

    10 Concerned Scientists who was underwriting part

    11 of Mr. Mann’s participation in this matter

    12 today.”

    Isn’t Anthony’s dog a member of this group? Bad dog!

  16. Mann’s a dam fool promoted way ahead of his real pay scale , I say keep him in the public eye and under pressure . As it will be both fun to watch the bits fly and the resulting mess will be a real blow to ‘the cause ‘

  17. “Follow the Money says:
    May 2, 2012 at 12:09 pm
    …Ayn Rand-type lunatics…”

    Say what??? Where did that uncalled for attack come from? Please explain what you’re talking about.

  18. Follow the Money says: May 2, 2012 at 12:09 pm
    Maybe Mann’s emails have all sorts of contacts with BP, Royal Dutch Shell, and other big bad oil companies and their fellow traveling NGOs.
    ———————————————————-
    That information would have about zero effect. It’s well and publicly known that Shell and ExxonMobil have been playing a significant role in the University of East Anglia climate research unit. Big oil companies support for the warmists has had no outcry, it’s just the skeptics that would be crucified if there were any connections.

  19. My favorite part:

    “MR. FONTAINE: Correct. I don’t have
    16 it (the FOIA Law) in front of me, but it basically says . . .”

    How could you not have it in front of you?

    I wonder if Mr Fontaine got his law degree at the Holiday Inn Express he stayed at last night.

  20. “the1pag says:
    May 2, 2012 at 12:33 pm
    Did Prof. Mann’s lawyer forget to advise Mann that he should copyright his e-mails if not also his infamous hockey stick?”

    That won’t help – to copywrite something, it has to be submitted in full to the library of congress. Also copywrite protects the intellectual property interest (I’m not sure ‘intellect’ applies to most emails, but I digress). If they were copywrited, they’d be part of the publicly available materials, and as such could be used by the VA AG.

  21. It really demonstrates what sort of a character Mann is. Happy to dish it out but cannot take his own medicine. I will stop before I am snipped.

  22. What’s all the fuss about? I think the Climategate emails part 3 – the not yet released ones – may be the emails sought under the FOIA…??? Just saying…

  23. Is the PDF file you uploaded all you have, or do you have the full transcript? It would be nice if those interested could look at the entire thing rather than just excerpts.

  24. “Say what??? Where did that uncalled for attack come from? Please explain what you’re talking about.”

    I was contemplating a long answer how Rand’s idolization of “industrialists” is merely her inversion of Leninist avant-garde leadership ideology, and the replacement of Marx’s labor fetish with a fetish for management. I wish I could point to a recent thread about nuclear power where the Randista-types went into hyper-ventilating overdrive of righteous indignation when confronted with the reality the nuke industry supports CAGW efforts, and such would profit that industry. They can’t follow the money unless it comes from the gubmint or someone they can categorize as “left wing.” But that thread was pulled. It was a great thread, there were two or three actual nuke insiders who confirmed, yes, indeed, the Nuke industry supports CAGW-based efforts. This only made the Randista-types (business worshippers) go even more ballistic.

    But, instead, I will point you to the brief remarks of one of the USA’s greatest law enforcement authorities on Rand:

  25. The State of Virginia has FOIA laws for citizens to know what the government of the State of Virginia is doing.

    Employees of the State of Virginia are part of the government of the State of Virginia.

    The UVA is a State of Virginia chartered/funded institution.

    The UVA is an institution which legally is owned by the government of the State of Virginia.

    Employees of the UVA work for an institution of the State of Virginia so are defined as public employees.

    Mann was employed by the UVA and therefore was a public employee paid by the State of Virginia.

    The State of Virginia public employee named Mann while working at the UVA received government grants ($) for research.

    ATI filed an FOIA request for Mann’s info related to his public funded research while he was a public employee at the public UVA.

    The UVA and Mann reject the FOIA because Mann is special.

    Outside pressure groups are exerting pressure on UVA to resist complying with the Virginia FOIA law.

    The administrators of the UVA are failing to protect the public interest wrt the spirit of FOIA and they are corrupting the scientific community by allowing pressure groups to subvert its public duty.

    Shame on the UVA.

    John

  26. “There are,” as my lawyer brother-in-law says, “none so stupid as those who waste a judge’s time.” The judge’s words are a warning to UVA and Mann that he wants pertinent information that will clarify each side’s views about the legal aspects of the FOIA issue.

    What appears to be really interesting is that ATI is arguing that the AGW-side of the debate has already set the legal precedent. Mann has even sought through his book to monetarily profit from it, and thus cannot now seek for an exemption. Mann and his palls have already established the precedent. This is especially interesting because where the State Attorney General asking for those emails would in effect require Mann to give up his 5th Amendment rights, if the judge finds in favor of ATI, the very evidence the AG sought may appear after all. That could explain a great deal of desperation on the part of UV and Mann.

  27. What if, for general purposes, all of those bad motives are true? How does it effect the legal right to FOIA protection?

    Touché

  28. Mann’s lawyer’s actions in this case seem to be a literal comedy of errors – I find it very, very funny.

  29. At the beginning I didn’t think the public would find anything that damning in his emails. We already know that Climatologists fudge data to fit their beliefs so I was just expecting more of the same to come to light. Now I am starting to wonder if he isn’t hiding something that could be even more damaging to his reputation and to climate “science” in general.

  30. David Spurgeon says:

    What’s all the fuss about? I think the Climategate emails part 3 – the not yet released ones – may be the emails sought under the FOIA…??? Just saying…

    If there is a climategate 3 email release, I wonder if it will come before Rio+20?

  31. ac says:
    May 2, 2012 at 1:40 pm
    “That won’t help – to copywrite something, it has to be submitted in full to the library of congress. Also copywrite protects the intellectual property interest (I’m not sure ‘intellect’ applies to most emails, but I digress). If they were copywrited, they’d be part of the publicly available materials, and as such could be used by the VA AG.”

    Not quite right. In the USA, everything a writer produces is copyrighted as soon as it is written. Now, proving YOU are the owner of the copyright is another issue, which is why one should submit the written material to the copyright office. The copyright office will date it and then you have a document to prove the origination date. One can also send oneself a registered letter and keep it unopened until proof is needed to date a claim of origination. It is only an issue when a dispute arises as to who wrote it first. It does not protect against using the material with proper citing. On the other hand, trademarking does protect against the unauthorized use of a mark. If Anthony has trademarked the “WUWT” logo at the top of the page, no one can use it without his permission.

  32. Reg Nelson says:
    May 2, 2012 at 1:37 pm
    My favorite part:

    “MR. FONTAINE: Correct. I don’t have
    16 it (the FOIA Law) in front of me, but it basically says . . .”

    How could you not have it in front of you?

    I wonder if Mr Fontaine got his law degree at the Holiday Inn Express he stayed at last night.
    *****************************************************

    My favorite part as well. Mann’s defense seems woefully under-prepared and would rather string yarns than hash facts…

    Can you imagine being on trial for murder, and your lawyer pulls a stunt like that?
    “Well your honor, I don’t have the law in front of me (that you are arguing at that moment?!), but it basically says…” Fired. I would find new counsel immediately that actually knew what it was doing.

    The law BASICALLY SAYS?? You’re talking to a judge, not a 12 year old.

  33. Duster says: May 2, 2012 at 2:14 pm
    “That could explain a great deal of desperation on the part of UV and Mann.”

    So what actually happened re the waiver ATI was seeking. Thanks to the transcript OK S linked, here it is (p 198-199)

    In terms of waiver, I deny it without prejudice. That isn’t very satisfying, doesn’t give anybody a clear sense of victory or loss; but, procedurally, that is the controlled way in which I want to go read the exemplars.

    And when Dr Schnare asked what that meant:

    “It is denied without prejudice” in my mind means I have denied it, but I will hear you again if and when necessary.

    Doesn’t sound like UVa was routed.

  34. I can’t shake the feeling that Fontain knows how bad his position is and doesn’t care because the fix is in.

  35. Does anyone have any idea how long until this court case is decided and (hopefully) the emails are released?

  36. Follow the Money wrote:
    I was contemplating a long answer how Rand’s idolization of “industrialists” is merely her inversion of Leninist avant-garde leadership ideology, and the replacement of Marx’s labor fetish with a fetish for management.

    It seems to me that someone didn’t understand Atlas Shrugged.

    That’s too bad, because there are some real gems in there.

  37. Follow the Money says:
    May 2, 2012 at 1:52 pm

    “Say what??? Where did that uncalled for attack come from? Please explain what you’re talking about.”

    I was contemplating a long answer how Rand’s idolization of “industrialists” is merely her inversion of Leninist avant-garde leadership ideology….
    From the little I know about her, I got hauled off to the movie, Rand disliked corporate- government collusion which is exactly what we are seeing happening today.

  38. Alexander K says:
    May 2, 2012 at 2:31 pm

    Mann’s lawyer’s actions in this case seem to be a literal comedy of errors – I find it very, very funny.
    ______________________________
    Didn’t I read somewhere here on WUWT that Mann was getting his lawyers for free and that was why he sued Dr. Ball and threatened a suit against Minnesotans 4 Global Warming

    Looks like he is getting what he paid for.

  39. A reminder of Mann’s “purity of heart” –

    …probably through me not conveying my thoughts very clearly to the others, definitely overstates any singular confidence I have in my own results.

    I’ve just completed Mike’s Nature trick of adding in the real temperatures to each series for the last 20 years (i.e. from 1981 onwards) and from 1961 for Keith’s to hide the decline.

    I think we have to stop considering Climate Research as a legitimate peer-reviewed journal. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal.

    …they’ve gotten the (Bush) White House Office of Science & Technology taking it as a serious matter (fortunately, Dave Halpern is in charge of this project, and he is likely to handle this appropriately, but not without some external pressure).

    This is the sort of “dirty laundry” one doesn’t want to fall into the hands of those who might potentially try to distort things…

    Personally, I wouldn’t send him anything. I have no idea what he’s up to, but you can be sure it falls into the “no good” category.

    …so it is best to clean up the programs and provide them to some of my close colleagues in case they want to test it, etc.

    In the process of trying to clean the programs up, I realized I had something a bit odd, not necessarily wrong, but it makes a small difference. … It looks like I had two similarly-named data sets floating around in the programs, and used perhaps the less preferable one…

    Just a heads-up (warning). Apparently, the contrarians now have an “in” with Geophysical Research Letters. This guy Saiers has a prior connection with the University of Virginia Department of Environmental Sciences that causes me some unease.

    I’m not sure that Geophysical Research Letters can be seen as an honest broker in these debates any more, and it is probably best to do an “end run” around Geophysical Research Letters now where possible.

    Scott really screwed up big time when he established that directory so that Tim could access the data.

    Yes, the BBC has been disappointing in the way they’ve dealt with this—almost seems to be a contrarian element there.

    I need immediate help regarding recourse for free legal advice…

    …the last two on the list (with question marks) would be unwise choices because they are likely to cause conflict than to contribute to consensus and progress.

    The issue isn’t whether or not he’s right, as we all well know by now…

    Rest assured that I won’t ever respond to McIntyre should he ever contact me…

    The best thing to do is to ignore them completely. They no longer have their friends in power here in the United States, and the media has become entirely unsympathetic to the rants of the contrarians, at least in the United States

    Of course, if it does get published, maybe the resulting settlement would shut down Energy and Environment and Benny and Sonja all together! We can only hope, anyway. So maybe in an odd way it’s actually win-win for us, not them.

    The threat of a lawsuit alone may prevent them from publishing this paper, so time is of the essence.

    Would you mind giving us an advance copy? We promise to fully respect Nature’s embargo (i.e., we wouldn’t post any article until the paper goes public), and we don’t expect to in any way be critical of the paper. We simply want to do our best to help make sure that the right message is emphasized.

    Phil to Mike: Can you delete any emails you may have had with Keith regarding the latest Intergovernmental Panel on Climate Change report?
    Mann: I’ll contact Gene about this as soon as possible.

    On a completely unrelated note, I was wondering if you, perhaps in tandem with some of the other usual suspects, might be interested in returning the favor…I’ve looked over the current list of American Geophysical Union Fellows…so I think I ought to be a strong candidate…Anyway, I don’t want to pressure you in any way, but if you think you’d be willing to help organize, I would naturally be much obliged…I’m looking forward to catching up with you some time soon, probably at some exotic location…

    We probably need to take this directly to the Chief Editor at the Journal of Geophysical Research, asking that this not be handled by the editor who presided over the original paper…

    …if he does get his criticism “published” it will be in the discredited contrarian home journal Energy and Environment.

    …please don’t quote anything I said or attribute to me without checking specifically…

    It is extremely disappointing to see something like this appear on the BBC. It’s particularly odd, since climate is usually Richard Black’s beat at the BBC (and he does a great job)…

    Email 1256735067 – As we all know, this isn’t about truth at all; it’s about plausibly deniable accusations.

  40. For what it is worth I have been informed by a representative of UVA that their honor code applies to students only, not to instructors or to staff.

  41. E. Z. Duzzit says:
    May 2, 2012 at 4:41 pm

    For what it is worth I have been informed by a representative of UVA that their honor code applies to students only, not to instructors or to staff.
    ________________________________
    Sure sounds like a great reason to NOT send you child to that school either…. [SNIP: Gail, that association is libelous and out-of-line. Let’s not go there. -REP]

  42. Well, well… I’ll believe it leads to anything when Mike Mann’s daily view of the sky will be squared.

    I haven’t heard yet of a single case of a government-sponsored professor or a government-agency thug being sent to prison for their misdeeds.

    Don’t know about “global warming” (it’s rather getting colder and colder these days) but a Global Sovietization is evident, and it is certainly of anthropogenic nature.

  43. I just read the entire transcript in detail. The UVA lawyers are good, but I think it’s obvious that they are simply making legal arguments to protect a climate scientists and that they wouldn’t be making the same arguments for the other side.

    The judge seems smart, and it seems as if he will realize that UVA’s arguments are simply being made for convenience.

    Overall, I expect, for whatever my expectation is worth, for him to rule in favor of having a good majority of the emails released.

  44. Enter Barrack Obama and his EO on scientific integrity and the exemption of climate scientist and government scientist from FOIA…

    This has silenced many scientists at NASA and it takes quitting before you can respond or openly discuss science.

  45. Wow. I am so glad I read that through to the end. What an argument. This sort of thing only appears on TV.

  46. Judge Sheridan appears to be pretty astute. The ATI counsel was pretty thorough in nailing Mann as a non citizen and non-employee and therefore UV essentially waived rights when it sent Mann the tranche of emails that had not been already destroyed. If I wss Mann I would be nervous and I would be planning on an appeal.

  47. GMU threw Wegman under the bus with the help of USA Today, whereas Mann received and is still receiving a protective shield costing the Virginia taxpayer what will be millions of dollars in legal fees when everything is finally said and done.

    Skewer the skeptics; feed the faithful. It’s the AGW way.

    UVA’s position here is not at all consistent with the spirit of its founder Thomas Jefferson or with the pursuit of knowledge and truth. But this is the post-modern era in which fake but accurate stories dominate newspaper headlines and where models are presented (or should I say promoted?) in “scientific” journals as gospel truth. Glory Hallelujah! Amen!

    Me thinks that Mann doth protest too much.

  48. Follow the Money says:
    May 2, 2012 at 12:09 pm
    May 2, 2012 at 1:52 pm

    What amazing rubbish, supported by citing a cartoon as your ‘legal expert’!
    Is your given name Peter Fontaine? Or are you one of the #occupymeh comrades?
    Your argument has the same baseless ‘merit’ as Mr. Fontaines position on selective violation of FOIA.

    Regardless of whether any great revelations are provided by the ‘Far Out, Mann!’ emails and communications, it is paramount that the FOIA laws be complied with completely. Try to stay on topic, FtM, and at least minimally relevant in your comments.

  49. @Reg Nelson 1:37 pm:

    “MR. FONTAINE: Correct. I don’t have
    16 it (the FOIA Law) in front of me, but it basically says . . .”

    How could you not have it in front of you?

    Yeah, I am sure that comment went over well with the Judge. It is an insult to the court to not have all that info either down pat or tabbed in front of you. To say. “…but it basically says…” – The attorney is SO losing points with the Judge.

    @bernie1815 7:30 pm:

    Judge Sheridan appears to be pretty astute. The ATI counsel was pretty thorough in nailing Mann as a non citizen and non-employee and therefore UV essentially waived rights when it sent Mann the tranche of emails that had not been already destroyed.

    Mann’s lawyers have no case to work with since UVA sent the emails to Mann. Everything they are arguing are shots in the dark – and insults to the intelligence of Judge Sheridan. They are trying to snow him, an he is aware of it. He might even be enjoying watching them make fools of themselves. It kind of sounds like he’s seen enough to already make a decision, and is just letting it all play out. It seems clear he is going to go with the letter of the law. If so, I wish there was a betting line in Vegas on this.

    Steve Garcia

  50. Rocky Road: “It appears Mann’s lawyer is a co-conspirator. Can a lawyer get disbarred by lying to a judge after the judge expicitly tells him to avoid a particular argument and he goes right ahead with it anyway?”

    No, Rocky, he isn’t a co-conspirator. He’s a lawyer, and he’s obligated to put forward a client’s case as effectively as possible. And what he’s doing is not lying. He’s just not giving the judge a reason to listen to his argument. It speaks much to the strength of Mann’s position that this is all his lawyer has got to take to the judge. If he had anything better, he would have used it.

    I’ve been involved with these kinds of things before. You go to a lawyer and say “I wanna sue this guy’s @$$.”

    And a decent lawyer, typically at least a junior partner to assess the merits of the case, will often say something like “OK, but here’s all the reasons why it won’t work.” And you say, “I don’t care, I wanna kick his @$$ in court.”

    And the lawyer says, “OK buddy, it’s your dime.”

    And because the law firm doesn’t want to have its reputation for court success sullied by an embarrassing, public and inevitable defeat, you get the third string, just out of law school rookie to take one for the team.

    Remember, Michael Mann, from his own writings, is a giant mass of self-inflated ego and hubris. I’ve seen it too many times before. These always get punctured severely in any court action.

    And yes, the judge nailed it right from the beginning. Motive has nothing to do with the legal requirements of FOIA. And unless his lawyer can come up with something other than the supposed bad motives of the petitioners, Mikey and the UVA are screwed.

  51. Steve Garcia, All of your post was dead on except for this bit.

    “He might even be enjoying watching them make fools of themselves.”

    No, Steve, they don’t. I’ve been in a fair number of courtrooms, both civil and criminal as an observer over the years, and every judge I’ve ever seen responds to irrelevant arguments the same way. They loathe having their time wasted, and they don’t find it funny at all. Most of the time their responses are variations of:
    “The differences between plaintiff and defendand are so small you should have settled this long beore you got to my courtroom”, or
    “The law is pretty clear on what the obligations are under the statute. Why are you wasting the court’s time?”

    And they get VERY irritated with lawyers who don’t take the judge’s direction on these matters. I remember one judge who indicated as part of the court record his frustration with one plaintiff. The judge remarked that he discovered more about the merits of the plaintiff’s case from the defendants’ submission than the confused and irrelevant casse presented by the plaintiff. The judge was prepared to throw the whole case out on the very first day, but the defendants insisted that, such was the public nature of the near-slanderous statements by the plaintiffs pre-trial, they wanted the judge to make a finding of fact, not just a ruling.

    And it was brutal.

  52. Unfortunately the Court denied the waiver issue and denied discovery so the two less difficult routes are at least temporarily .. off the table.

  53. Friends:

    I am not a lawyer, but it seems to me the important part of the transcript is these statements of the Judge which the transcript shows were agreed by all parties in the case.

    (Page 191)
    THE COURT:
    15 ….Part of what we are doing here is
    16 trying to get me educated to make a correct
    17 decision. The secondary goal is that this case
    18 has clear potential for appeal, and I want the
    19 full record, everybody’s record of every issue
    20 going. If the Virginia Supreme Court is going
    21 to get a chance to decide all of the issues in
    22 this case, I want it to be done on a complete
    (Page 192)
    1 record regardless of who prevails in this court.

    In other words, whatever ruling(s) the Judge makes, the case will be decided later on Appeal. And, therefore, the Court needs to place on record the pertinent points of law, the pertinent facts, and the points of agreement and disagreement between the involved parties. But any decision(s) of the Court do not matter because the case will finally be decided later and elsewhere.

    However, I suspect the findings of the Court will be spun for PR by both sides in the case.

    Richard

  54. The transcript was a fascinating read and could easily draw me into becoming a court room junkie. There is a precision of language in the court room that evades the sciences, generally, and society, in toto. There is also a demeanor in the court that is profoundly lacking in the blogosphere, and that is the presumption of respect. The gravest of legal miscreants is granted equal footing until the finding or ruling is revealed. There is much we can learn from that. And for the record, I don’t accept this transcription, a single data point, to represent a trend in this regard.

  55. I’m surprised that the judge denied the waiver (without prejudice); as that issue is rather clear cut. I would’ve thought that he would have granted the waiver and then allowed UVA to request a temporary stay that the judge would then grant. That woud’ve forced UVA (and manny) to introduce evidence to overturn the waiver decision by a certain date.

    Instead the judge decided to deny the waiver and discovery so he could familiarize himself more with the exemplars and bring himself up to speed about Virginia FOIA. That is an odd decision. It seems to be a judge looking to CYA because he expects the case to go elsewhere and he want his dotted i(s) and crossed t(s) to be all perfect. Sort of like this case is giving hm a future resume point.

    From this persepective and the evidence on the table, if this case goes to Virginia’s Supreme Court; I think it is likely they’ll decide that the judge should’ve settled the case because of the email disclosure to Mann waives any FOIA exemptions claimed and remand it back to the judge to finish the case.

    Looks like a long road till complete. Maybe (hope?) we’ll get the password to the remaining cache of climategate emails sooner? Surely the whistleblower has some respect and desire for wanting the public to see those emails while everyone involved is still actively engaged and not yet senile?

    (time to get some sleep as my typing is crossing my eyes, or is it that my eyes are crossed and my typing is worse)

  56. Discussions in the emails about uncertainty or dodgy methodology in relation to the hockey shtick will crash the entire gravy train. Anything else will be ignored by the prolls.

  57. “JEM says:
    May 2, 2012 at 12:33 pm
    The longer this goes on, the more I’m certain that we’re going to see something truly ruinous to Mann and those who’ve embraced Mannian science.”

    So true, JEM, so true.

  58. Typo Anthony in your preamble.
    You describe the Hockey Stick as “science”!
    I’m sure you don’t mind me correcting you on this one.

  59. We should get a pool together on whats in there? I think it is equity in various green firms.

  60. Jimbo says:
    May 2, 2012 at 1:05 pm

    Hide the data, hide the decline, hide FOI emails. Hide, hide, hide behind….. The group think fortress is slowly coming down as they retrench.

    Ouch!

    21 What if, for general purposes, all of
    22 those bad motives are true? How does it effect
    1 the legal right to FOIA protection?
    2 Are we — do we have a purity of heart
    3 test before we apply FOIA’s legislative acts?
    4 MR. FONTAINE: No, Your Honor, the law
    5 on that is quite clear. It is not really the
    6 Court’s function to try to weigh the motives.
    7 THE COURT: Well, then, why are you
    8 arguing that to me?

    Ouch indeed. Did the court reporter really transcribe the word “effect” instead of the proper “affect”?

    “I am the grammarian about whom your mother warned you”.

  61. carlbrannen says:
    May 2, 2012 at 12:30 pm
    Could you reformat this so that it’s readable?

    Seconded

  62. Why do you think there is something in the e-mails? Mann just likes to fight, same as Phil Jones.

  63. Mike N,

    If Mann just likes to fight, why is he afraid to debate, or take unscripted questions?

    And if Phil Jones likes to fight, why did he blubber about suicidal thoughts when the going got tough?

  64. Were the emails written by Mann done so via his University of Virginia email address? Was the computer that Mann used to write the emails, University of Virginia, a public university, and therefore property of the Commonwealth of Virginia? If the answer to EITHER of those questions is YES, then the emails written by Mann are damned sure subject to FOIA request, and NOT “private” emails owned by Mann.

  65. “Follow the Money says:
    May 2, 2012 at 1:52 pm

    I was contemplating a long answer how Rand’s idolization of “industrialists” is merely her inversion of Leninist avant-garde leadership ideology, and the replacement of Marx’s labor fetish with a fetish for management…”

    Aside from the odd quote encountered here and there, it’s been a good many years since I read any of Rand’s work, but as I recall some of her harshest criticism was leveled at industrialists who feed at the public trough. She lumped them in with the rest of the moochers. Her only fetish was for what she termed producers, regardless of station.

  66. After all the high-minded legal debate, it comes down to the definition of “is”. Perhaps legal assistance can be offered by Bill and Al, even though Bill lost his license to practice. It may be time to invoke the “its for the children” excuss a la Edwards or play the race card somehow.

  67. CW – code monkey with a wrench says:
    May 3, 2012 at 10:06 am
    “Aside from the odd quote encountered here and there, it’s been a good many years since I read any of Rand’s work, but as I recall some of her harshest criticism was leveled at industrialists who feed at the public trough. . . . .”

    CW – code monkey with a wrench,

    The most striking thing I remember from +30 years ago was how very efficient Rand was at reducing both mouth breathing collectivists and self-sacrifice promoting altruists into ranting fools. Those two types of ‘intellectuals’ had a ranting style that was similar to the typical Romm styled rants.

    John

  68. Tom in Florida says:
    May 2, 2012 at 2:34 pm
    ‘It is only an issue when a dispute arises as to who wrote it first. It does not protect against using the material with proper citing. On the other hand, trademarking does protect against the unauthorized use of a mark. ‘

    My real point was that a copyright wouldn’t protect the email from a FOIA or use in a trial. Thus for Mann (or his lawyer or any others) to think that a copyright should protect them is silly. The point Mann’s lawyer makes about copyright is that his email could be exploited by someone else for IP issues. Big deal, the AG doesn’t care about that, and as Tom in Florida pointed out, the emails could be easily be copyrighted upon turnover to the VA AG. Again, his lawyer should be slapped down for being silly.

  69. Follow the Money : Have you even read any and Rand’s works? If you have, I fear you have wasted your time because you compleatly missed the point. Before trying to insult others, better make sure you first understand what they are saying.

  70. blackswhitewash.com says:
    May 3, 2012 at 1:57 am
    Discussions in the emails about uncertainty or dodgy methodology in relation to the hockey shtick will crash the entire gravy train. Anything else will be ignored by the prolls.
    ====================================
    Dear Sir, I think your imagination quite limited in this regard, as I can think of many things that may appear beyond the HS; things which could end Mann’s career, discredit the University he works at, and severely damage the CAGW gravy train.

  71. I hypothesize that Mann is desperate to hide his massive funding from Fenton, which came from Soros. Remember that he left UVa because it would not hire his to-be-wife (Penn State did). He doesn’t work for free, and I’ll guess that his emails show that.

  72. This snippet encapsulates what it is really all about. Hiding these.

    MR. KAST (representing University of Virginia)
    “I think, again, that is something that this court can determine. It is not a factual
    issue that requires discovery. But you can look at an e-mail; and if the e-mail is an e-mail to
    a scientist at the University of East Anglia talking about tree rings, for instance, and how they may have or not recorded climate change inpast, then that is one type of e-mail that we would claim falls within this research proprietary exemption.”

    The only question the Court needs to answer is did Mann do this work with private, or PUBLIC funding?

    The answer will determine whether it is “proprietary” or “Public”.

    That’s my “two pennies”.

  73. Who wants to set up the reward fund for anyone who can produce (legally, of course) the unredacted emails, after Mann loses his case and complies in the manner of EAU?

    I would be happy to contribute.

  74. atheok says:
    May 3, 2012 at 12:06 am

    ….Instead the judge decided to deny the waiver and discovery so he could familiarize himself more with the exemplars and bring himself up to speed about Virginia FOIA. That is an odd decision. It seems to be a judge looking to CYA because he expects the case to go elsewhere and he want his dotted i(s) and crossed t(s) to be all perfect. Sort of like this case is giving hm a future resume point…..
    _________________________________________
    No the Judge is doing exactly as he should. An appeal is not a NEW trial. All a court of appeals does is look at the information presented in the first trial and determine if the decision was correct based on that information.

    This is for Wisconsin but is pretty much the same for all states.

    the primary function of the Court of Appeals is to correct errors that occurred at the circuit court level. The published opinions of the Court are binding precedent until overruled by the Supreme Court, and the Supreme Court has recognized that the Court of Appeals has a “law defining and law development” function. Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246 (1997).

    Any citizen may appeal a final judgment or order of a circuit court. Appeals of nonfinal judgments or orders (those that do not end the litigation) are accepted at the Court’s discretion….

    No testimony is taken in the Court of Appeals. The Court relies on the circuit court record and the written briefs of the parties. The Court hears oral argument when the judges feel it would be beneficial to their decision. http://www.wicourts.gov/courts/appeals/function.htm

  75. Coincidentally, on the same day as the hearing, the law firm representing Mann hired nine experienced intellectual property litigators.

    http://www.cozen.com/newsroom.asp?nwid=1358&m=8&d=1

    “Cozen O’Connor announced that patent litigators Richard T. Ruzich, Kerry B. McTigue, Barry Golob, Donald R. McPhail, Joseph M. Bennett-Paris, Ph.D, Ian Scott and Blake Coblentz have joined the firm’s rapidly expanding intellectual property group as Members. Two associates have also joined the firm –Aaron S. Lukas, Ph.D. and Elese Hanson”

    “Richard T. Ruzich focuses his practice on litigating complex patent, copyright, trademark and trade secrets matters”

    Wonder if they’ll join Mann’s team after the results of the hearing…

  76. How much is this costing Mann, or is he getting his legal expenses paid?
    Perhaps the good Mr. Fontaine is working pro bono?
    This looks like a good subject for a FOI request.

  77. I just checked Mann’s book, pages 160-175 — the chapter which deals with the NRC and Wegman reports — and can assure you that he neither quotes nor refers to any emails obtained by Vergano from Wegman. Schnare just flat out lied to the court.

  78. jmsully:

    Somehow I doubt that you’ve read everything. Anyway, the central point is this:

    Michael Mann did not rise in support

    8 of Wegman’s copyright interests or his need for

    9 academic freedom. Neither did the Union of

    10 Concerned Scientists who was underwriting part

    11 of Mr. Mann’s participation in this matter

    12 today. Nor did the university, nor even a

    13 single member of their faculty. Nor did the

    14 American Association of University Professors,

    15 who had already filed a letter to this court on

    16 this case, or any other group.

    And Mr. Schnare offered the book to the Court:

    And who, Your Honor, is this author?

    10 Michael Mann. This (indicating) is his recent

    11 book. These (indicating) are the tags showing

    12 where he referenced the Wegman e-mails, and

    13 where he cited them and where he quoted them;

    14 all of them received under the Virginia Freedom

    15 of Information Act, all of them received after

    16 Wegman published his work and it was open and

    17 passed peer review and open to public review.

    It’s hard to lie to the Court, when the opposition is present. And they apparently didn’t dispute Schnare. Better go do some more research.

    • Um Smokey, I read every page between the first page of the chapter in which the Wegman report is discussed and the last (as I pointed out). This is a superset of the pages on which Wegman is mentioned in the index. Schnare lied, pure and simple. However,neither counsel for UVa, nor counsel for Mann was ready for such a blatant lie as they apparently hadn’t read the book yet.

      Schnare’s tactic here was to distract from the main issue and redirect onto copyright, which he was successful at doing, as the result was a long diversion into the nooks and crannies of copyright law and exactly how copyright was controlled by UVa. It was a successful distraction but not at all germane to the issue at hand. BTW, ATI lost on the most important issue, whether or not UVa had waived rights to withold document because they had disclose them to Mann’s counsel after the petition to intervene had been filed (at UVa’s urging, BTW);

  79. jmsully,

    If you are right, it will certainly come out in the proceedings. There is no doubt whatever.

    So we’ll see.

    • Smokey, there aren’t going to be anymore proceedings on this. Further arguments will be in front of the VA Supreme Court. Hopefully the Respondents will be prepared for this specious argument if Schnare chooses to raise it again.

      BTW, I suggest that you visit your local library (or large bookstore) and read the 15 pages. You will see that I am right.

  80. jmsully,

    I’ll take your word for it that the references were not in the 15 pages you cited. But if you will notice, Mann’s publication was not named. Have you read everything Man has written? If so, my sympathies [unless you like science fiction and fantasy].

    Since no one else is backing your opinion, I remain skeptical. It will all come out in the wash. Or not.

    In either case, it does not change the central argument: no one objected when Prof. Wegman’s emails were provided by the university pursuant to an FOI request.

  81. Smokey,

    You might look at this at the Bunny’s or click on the link and look at the letter. In the section of the transcript which you highlight, Schnare is, at least somewhat clearly, highlighting Mann’s recent book. Do I have to point out what you yourself highlighted?

    Also, as I pointed out earlier, the whole issue of copyright is not germane to the questions being argued here. Those questions were:

    1) Did UVa give up the right to claim exemptions for the documents by providing them to Mann’s counsel? (It should be noted that Judge Sheridan ruled against ATI on this FROM THE BENCH.
    2) Did ATI have a right of discovery under the FOIA law to have access to these documents?

    If you look at the Bunny’s post you will see that the VA FOIA Advisory Council may have a very different view of the nature of the law than people on this blog. You might also see that Dan Vergano at USA Today was not satisfied with the response to his request. But the whole question of copyright is peripheral to the question of whether or not a document is exempt under FOIA. Schnare successfully raised a red herring, and you bit.

  82. jmsully,

    Go argue your peripheral conspiracy theories with your bunny pal. I didn’t click your link; I’m uninterested.

  83. I am confused by the positions many warmist posting take on these FOIA cases. They think at it narrowly trapped to this one situation, throwing away any principles they might have had. Or did they have any?
    What would one expect of any future FOIA requests to happen – not on Mann and UVA but on any other case? Imagine for any FOIA citizens would have to pay many thousands dollars to authorities to maybe receive one tens of the documents requested after these are reviewed by the person in question for FOIA.
    Is this the new progressive understanding of the FOIA law? Is this what “they” would like to get when they come to FOIA requests? This might very well be the end of simply filling in the form and get the FOIA document requested from any authority.
    And even worse FOIA will be at the bosses decision. Another tool to make it happen at their own goodwill.
    It opens the gate to a lot of obfuscation, possibility to keep things in the dark not seen by the citizens eyes which leads to corruption. It ends the FOIA process as it was for obtaining the Wegman documents for instance.

  84. Lars;
    Yes, from the progressive POV, FOIA is, as Blair said, a terrible mistake, a veritable Pandora’s Box of horrors. The duct tape and Krazy Glue are being wielded assiduously.

Comments are closed.