Michael Mann wades into the UVA thicket as intervenor

By Chris Horner, ATI

Michael Mann made his way back to the Commonwealth of Virginia yesterday to watch his U.S. lawyer reprise the dark conspiracy theories previously weaved throughout his Canadian lawsuit against Tim Ball for repeating the old joke about “belong[ing] in the State Pen, not Penn State”.

The forum was a hearing in the American Tradition Institute’s Freedom of Information Act (VA) case against the University of Virginia (UVa) for certain records sent to or from Mann accounts while he was at UVa. That period is when the chatter about deleting records to circumvent FOI laws and other wagon-circling took place among the self-appointed “Hockey Team”.

That sort of paranoia sounded even worse in the spoken word that it reads in a brief. The judge gave an almost imperceptible shake of his head when my colleague David Schnare wondered aloud, when his turn came, about responding to all of the ad hominem. Enough already, this gesture seemed to say.

The Court allowed Mann to enter as an intervenor in this dispute, from the bench and without explanation. So there’s little we can offer there except that, when all is considered, this does provide the Court with the path of fewest problems (though hardly none, if Mann’s record in pleadings and argument is any basis to judge by; possibly some allies will try and delay matters yet again when we next proceed).

Given Mann’s argument was almost entirely limited to a vast right-wing conspiracy if one involving some names I’d never even heard of and in an apparently studious avoidance of the applicable law, we can only surmise the rationale for this move was grounded in equities found elsewhere than that curious display.

ATI opposed Mann’s motion to intervene simply because he offered no principled basis to intervene. We will appeal therefore with an eye toward settling the question as to what rights, or other considerations, justify a faculty member’s intervention in a FOIA case. For now we welcome Mann to this case to defend the content of his emails in a public forum. Presumably, just more conspiracy theorizing won’t suffice anymore.

We then proceeded to UVa’s effort to reopen the Protective Order, seeking to substitute themselves for us as the party reviewing and selecting exemplar emails from the cache they now admit to possessing. That it would be reopened was pro forma after Mann was deemed to have interests at stake, if what these interests are was left unstated.

The Court noted the distrust between the parties, particularly ours of UVa after all of what they have done, and so did not allow UVA to assume that role. This was despite that in advance they and Mann had agreed to jointly stipulate to this (his lawyer’s rather odd, earlier argument notwithstanding, see below).

But, as we argued, UVa’s utterly terrible record on this matter does not inspire confidence that a fair review and representative sample is to be had from them. Their ill-fit for the newly adopted pose of independent arbiter is somewhat betrayed by their legal bills fighting the AG’s Civil Investigative Demand now heading toward a million dollars. Then there is the enormous pressure from their faculty and pressure groups — which they finally copped to, after arguing previously in pleadings that this was all in our heads. Speaking of its track record.

And, finally, UVa has essentially the same interest as Mann at stake and is no more a suitable arbiter than Mann himself (per Mann, that’s “embarrassment”). To say UVa is aggressively focused on limiting the damage of what occurred in its program, with still not a finger toward self-policing lifted to date, is also something of an understatement.

So we have until a scheduled December 20 hearing to agree to a third party reviewer, cost and methodology. If we cannot agree the court will impose a process.

Toward that end, Mann’s attorney informed the Court that, well, Mann is the only person on the planet capable of understanding the content and meaning of emails he sent and received, thereby not only raising questions about his correspondents but making his future objections as to reviewers something less than entirely relevant or credible.

Cost is to be split at worst three ways, one presumes. Mann is surely going to be raising money for this. So, we won’t be shy, either. We can’t match the cool million the University of Virginia is pouring into their effort to make the embarrassment the revelations in ClimateGate emails to and from Mann’s UVa accounts has caused them go away. But every little bit helps.

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griffin

Can you take Mann’s deposition?

mpaul

Finding a suitable third party would seem to be a challenge. I imagine that UVA will object to anyone who has ever purchased gasoline for their car as having “ties to the oil industry”.

mwhite

“Mann is the only person on the planet capable of understanding the content and meaning of emails he sent and received”
emails he sent cannot be understood by the people they were intended for?
People sending him emails did not know what they were telling him?

mpaul

I think the judge is being wise. Had he ruled that Mann had no standing to intervene, Mann likely would have appealed and would have sought an injunction to prevent the release of the emails to the referee (who ever that might be). Mann’s argument at appeal would likely be some broad argument about speech, property rights and privacy — none of which would advance our understanding of his conduct. And, this would have delayed things.
All the judge has really done is to allow Mann to sit in the big boy chair and watch the proceedings. If Mann objects to the release of any specific email, he will need to make his case before the judge as to why that specific email should not be released. This will force him to describe what things like ‘hide the decline’ mean, under oath and with specificity. These sorts of arguments will advance our understanding of his conduct.

Edwards

One million dollars and counting… this could get pricey.
Will the MannGassers stop at nothing to prevent the truth from coming out?

Gail Combs

How about Retired senior NASA atmospheric scientist, Dr. John S. Theon, the former supervisor of James Hansen????
He has the credentials and hopefully the knowledge. He is also retired so he does not have to worry about retaliation.

KnR

Delays on delays , I wonder is there a clock being run down somewhere ?

Louis Hooffstetter

“Mann is the only person on the planet capable of understanding the content and meaning of emails he sent and received”
That’s exactly what I thought about his statistical methods when I tried to comprehend how he processed data in MBH 98. Thank god for Steve McIntyre.

John Whitman

The third party reviewer will have exactly what power? A tie breaking vote? Or authority/expert decision maker status?
John

FredT

This is hilarious. Chris Horner appears to have not noticed a host of very interesting things that came out of the filings.
http://www.ucsusa.org/assets/documents/scientific_integrity/ATI-UVA-support-memorandum.pdf
http://www.ucsusa.org/assets/documents/scientific_integrity/ATI-UVA-Kast-affidavit.pdf
For instance, Horner didn’t mention that:
– his co-counsel (David Schnare) was revealed to be somewhat ‘economical’ with the truth that he was (until the end of September) actually an EPA employee
– that he had never been granted ‘permission to engage in outside activity’ to work for ATI (required of all civil servants).
– that an application he claims to have prepared to ask for that permission (to work for ATI) was strangely dated Nov 16 2010 – before ATI even existed as an entity.
– that, even if this was indeed the real date of it’s preparation, it specifically stated that no litigation for ATI would be performed.
– that Horner, Schnare and Bob Marshall were widely quoted in public as wanting to break the confidentiality portion of the consent decree
It might therefore come as no surprise that the judge was minded to agree with UVa that the existing consent decree (that assumed a degree of integrity and professionalism on the part of Horner and Schnare) needed to be reopened.
The irony is that while ATI is suing NASA to get Hansen’s ‘permission to engage in outside activity’ forms, its own counsel was guilty of what ATI is accusing Hansen of.
Like I said, hilarious!

Ian W

KnR says:
November 2, 2011 at 12:04 pm
Delays on delays , I wonder is there a clock being run down somewhere ?

I would hazard a guess that the delay MUST be until after the Durban conference. The potential of Durban being upstaged in the same way Climategate upstaged Copenhagen is probably the stuff of AGW nightmares.

DirkH

A conviction would set an interesting precedent –
Will every Canadian who uses that wordplay in the future go into the locker? Attention, Canadians: You can sell them oil, but don’t crack jokes about them.

DirkH

FredT says:
November 2, 2011 at 12:38 pm
“- his co-counsel (David Schnare) was revealed to be somewhat ‘economical’ with the truth that he was (until the end of September) actually an EPA employee”
“The irony is that while ATI is suing NASA to get Hansen’s ‘permission to engage in outside activity’ forms, its own counsel was guilty of what ATI is accusing Hansen of. ”
You are right; Hansen should immediately resign. (From your words I take it that Schnare no longer works for EPA)

I did notice a dimming of the collective IQ in these parts. Reading this explains it. Mann was back!

The solution to Soviet Russia did not come through Russian courts, and the solution to Gaian America will not come through American courts.
The Soviet Empire collapsed when it couldn’t afford to maintain all of its imperial mechanisms.
Now we’re starting to see the similar collapse of the Gaian Empire in both EU and US, as debts and depression make it more and more difficult to sustain the imperial mechanisms of subsidies and regulations.
That’s how it ends. Not with the bang of a gavel but with the long fading hiss of a popped balloon.

kramer

What’s to hide?

jim hogg

FredT – interesting stuff – for the easily and pointlessly distracted I assume – but my understanding is that this is about members of the public gaining FOI access to material that was generated by means of public funds. Should be pretty straightforward. It should be openly available as a matter of course. An independent observer – they are rare admittedly – would be hard pressed to understand why this is such a big deal, and might be inclined to suspect that Mann has good reason to be fighting this so desperately, ie that there might be a skeleton or two in this dark closet. Declaration of interest: my only interest is the truth . .

Earle Williams

FredT,
Wow, I didn’t know that the Virginia Freedom of Information Act “deals in significant part with the policies, programs or operations of EPA”. Will wonders never cease?

FredT

The issue in court was whether Schnare and Horner could be trusted. The ruling for UVa indicates that the judge agreed they could not.
The evidence indicating that Schnare had misled the court and UVa was pretty solid, regardless of its wider importance (or not). I would suggest that rather than taking me on, you ask why ATI gave so many unnecessary legal openings to the UVa legal team. If you thought that Horner and Schnare would be your champions, they have rather let you down…

After being hammered for three hours by Mr. Mann’s attorney and the University attorney, I still have my sense of humor. I think the Judge lost his after the first 15 minutes of salacious harangue. Much like I did in court, I simply won’t respond to the baseless ad hominem attacks. I did so in an affidavit and that was good enough for the judge. Funny the UCS didn’t link to that. I’m not going to either. It is just silly noise. Suffice it to say that, as explained below, they had to attack me and Chris Horner and we expected it. It does, however, reflect the old legal adage that when the law is with you, argue the law; when the facts are with you, argue the facts; and, when you have neither, attack the other side. They did and we are still standing proud.
As for the decisions, UVA lost its motion. They wanted to replace me and Chris Horner with themselves, thus allowing UVA to control what emails would be used in the legal arguments about exceptions under the Virginia FOIA. Because they had previously agreed to us picking the 50 or so emails out of the collection of about 12,000, they had no option other than to claim they had lost trust in us. This they did in an ad hominem attack that was utterly untrue. For those familiar with the Virginia code of ethics for lawyers, their attack was also unethical. As a fair man, I have to also tell you that Richard Kast, the lead attorney for UVA, was clearly uncomfortable making the attack and he said so to the judge. He claimed he had to do it because his client wanted out of the previous agreement and this was all he had to get that to happen. Poor sod. Crappy client, but that’s what lawyers have to put up with.
What did happen? The court recognized before the hearing had even begun that the trust level needed in the case had disappeared. Once all the bloviating finished, he first looked at me, knowing I would understand, and read a prepared statement that essentially was a rebuke to all of us to find a neutral third party to pull the example emails by December 20th or he would take over the entire process, most likely appointing his own third part. He was not a happy judge. In fact, when Pete Fontaine (Mann’s lawyer) rose and asked to be heard on the UVA motion the judge barked back “Why?”. After another 5 minutes of salacious attack from Fontaine everyone but Pete could see the Judge had had it. Than’s when he pulled out his previously prepared decision and let UVA (and us) have it between the eyes, essentially saying – play nice, damnit and get this case going forward!
As for Mann’s role in the case, ATI welcomes him. Among other things, Mann’s attorney cited to no words in the Constitution (citing to the wrong article in the first place while claiming a privacy right), no sections of any statute and not a single case, while claiming he had a germane interest in the matter. Because the judge did not offer any insight into what interest Mann had, on appeal Mann will have to make an actual legal argument to defend the decision below. For us lawyers, it is going to be fun to watch him make potage without a pot.
Can we depose Mann? Probably, and we might choose to do so. I’m not going to explain that at this point, but if we think it worthwhile, we will. If you have any questions you want asked, send them to me at schnareati@gmail.com. Serious contributions only, and I humbly ask you not abuse my email address, please. Also forgive all misspellings above. Not my strong suit.
Sincerely,
David W. Schnare, Esq. Ph.D.

Beast of Traal

FredT says: November 2, 2011 at 12:38 pm
www.
ucsusa.org/assets/documents/scientific_integrity/ATI-UVA-support-memorandum.pdf
ucsusa.org/assets/documents/scientific_integrity/ATI-UVA-Kast-affidavit.pdf
Amazing that they thought that it did not matter!!
Schnare snared, Horner cornered. ATI-Gate!!

FredT

Dr. Schnare, if you welcome Mann’s participation in the lawsuit, why are you suggesting that you will appeal these decisions?
I welcome your desire to avoid ad hominem ‘noise’, but perhaps you should mention this to your co-counsel whose blog postings on this and other lawsuits consist of very little else. For instance.
And please, could you post your affadavit in response to the UVa motion? I’m sure you share my desire for open and transparent proceedings, and if the allegations made by counsel in relation to your employment at EPA and compliance with ethics guidelines are false, it would certainly be better for that to be widely known.

DocMartyn

Best of luck David.

DirkH

Beast of Traal says:
November 2, 2011 at 1:43 pm
“Amazing that they thought that it did not matter!!
Schnare snared, Horner cornered. ATI-Gate!!”
From
http://hitchhikers.wikia.com/wiki/Ravenous_Bugblatter_Beast_of_Traal
“Known for its never-ending hunger and its mind boggling stupidity, the Ravenous Bugblatter Beast of Traal is such a stupid animal that it thinks if you can’t see it, it can’t see you.”
You might consider changing your nickname.

FredT, if you are not engaging in ad hominem, why do we see no comments regarding the substance of the matter, that of disclosure of the emails.

D. W. Schnare

We objected to the decision to reserve the issue for appeal. We will appeal the intervention when all other appeals are also made. We will appeal so as to get an appellate court opinion as to what interests allow intervention in a FOIA case. This is unsettled law, and one of our missions it to address these areas of law. This is not about Mann. This is about getting in place a clean, crisp rule of law so that in the next case someone brings there won’t be any need to spend time on these kinds of preliminary issues. In this case, Mann will have to give his side of the argument in response to ours. Should be fun.

JEM

FredT – let’s wind back all the legalities here – why on Earth would you believe that the work product of a government employee is somehow exempt from FOIA?

Robert of Ottawa

mwhite says @ November 2, 2011 at 11:57 am
Obviously M.Mann speaks in tongues only he can understand.

I just feel sorry for the judge.

icebear
RDCII

Ironic, isn’t it, that Mann’s emails can only be understood by himself…and that he’s taking a sabbatical right now to study how Climate Science communication is failing and how to fix it. He just MIGHT be the wrong guy for the task…
No, let’s face it, the truth is that Mann’s emails are way too understable. If they were, in fact, impenetrable, why, there’d be no problems releasing them at all. It appears to me that the his lawyers have put him in a bind…

TomRude

Fascinating! Best of luck David and Chris.

FredT

JEM, what do you think is the point at issue here? No parties to the case are objecting to VFOIA in principle – UVa has already delivered thousands of pages to ATI (which ATI promised to disseminate but is nowhere to be seen on their website – maybe they are too tedious). You might have got a different impression from Horner’s public statements, but they are somewhat misleading.
Instead the issue is about how one should deal with exemptions to FOIA (which exist in all FOIA legislation). UVa has asserted that there are emails which are exempt, and ATI is seeking to challenge those exemptions. The initial plan was that ATI themselves would look at everything ‘in camera’ and make arguments on the merits of each email – but that involves everyone trusting that Schnare and Horner would not somehow use or disclose the contents of exempted emails. That trust has clearly eroded, so the judge agreed that a new method (involving an independent third party and a selection of exemplar emails) will need to be negotiated. ATI clearly lost on this point.
Dr. Schnare, “This is not about Mann” – really? You are just pursuing this to improve the clarity of the law? That’s funny.

David Schnare says: November 2, 2011 at 1:41 pm
” the first 15 minutes of salacious harangue.”

???

Schnare,
You lost. Get over it. In their filing they claimed that they were willing to have a neutral third party examine the with emails which they claim to be exempt and to allow for an in camera resolution of disputes, and that appears to be what the judge approved.
The problem now appears to be for the two sides to agree to a third party. May I suggest a lawyer who expert in VFOIA and has worked for neither the UVa nor ATI or any affiliated organizations?

davidmhoffer

FredT;
Could you please come up with something of substance? You are clearly a troll trying to justify the positions of Mann and UVa and your comments are rather contrived and, frankly, boring.

D. W. Schnare

The non-exempt UVA emails released by the university are on the ATI website at:
http://www.atinstitute.org/law-ctr/hosted-foia-documents/

FredT

davidmhoffer, I wish I could match your natural affinity for the language, cogentness of your argument and excitement of your comments, but alas, it is not to be. I hope you will somehow manage to get by regardless.

davidmhoffer

Rattus Norvegicus says:
November 2, 2011 at 6:17 pm
Schnare,
You lost. Get over it. In their filing they claimed that they were willing to have a neutral third party examine the with emails which they claim to be exempt and to allow for an in camera resolution of disputes, and that appears to be what the judge approved.>>>
Good lord, you think Schnare is losing? UVa fought releasing the emails in the first place, and after all kinds of shenanigans got backed into a corner. They had to agree to the release or be ordered to. So they agreed. Now they are trying to circumvent their own agreement with the same kind of shenanigans, and they are backing themselves into a corner yet again. Did you not read the judges decision? The parties will agree to a neutral 3rd party, or he’ll do it himself.
Frankly, I think that hands all the power to Schnare. Why should he bother to find a neutral 3rd party at this point? That will just go around in circles as UVa objects every time the neutral 3rd party makes a decision they don’t like. The only possible truly neutral 3rd party is going to allow the exact emails they are obviously working so hard to keep hidden. The best possible outcome for Schnare at this point is for the judge to make good on his threat and himself be the neutral third party.
Let the judge be the judge, and determine what emails should be exempt and which not.
Then let’s see Mann try and argue that the judge isn’t capable of understanding the emails. It is just oh, SO much fun when someone stands up in court and explains to a judge what the judge does and doesn’t understand! I’d pay good money to get to see it.

davidmhoffer

FredT says:
November 2, 2011 at 6:32 pm
davidmhoffer, I wish I could match your natural affinity for the language, cogentness of your argument and excitement of your comments, but alas, it is not to be. I hope you will somehow manage to get by regardless.>>>
Oh don’t worry, I will get by. Now, are you going to come up with something of substance or not?

DonS

FredT, I do not detect hilarity in your posts. More like nervous giggles.

davidmhoffer,
The reference to losing is to these two matters alone:
1) Mann as an intervenor
2) Restructuring of the protective order
ATI lost on those two points.

There are two things here which no one has commented on. The first is that Dr. Schnare is the only lawyer on the ATI side admitted to the Va Bar. The second is that the UVa complaint challenges his ability to represent ATI because he was not (properly if at all) released by the EPA to do so.
The third is that if he was not released by EPA there may be trouble on the horizon for him.

Has the court taken possession of copies of all the emails? I would be concerned that persons unknown at UVA might be quietly culling the archive of the most incriminating stuff, if such things exist.

davidmhoffer

Rattus Norvegicus says:
November 2, 2011 at 7:25 pm
davidmhoffer,
The reference to losing is to these two matters alone:
1) Mann as an intervenor
2) Restructuring of the protective order
ATI lost on those two points.>>>>
Did they? UVa said they said they no longer trusted the process that they previously agreed to and proposed a new one. The judge said no to their proposed fix. He advised that if they didn’t want to go forward with the process they first agreed to, he’d allow them to use a neutral 3rd party instead, but warned them that if they couldn’t agree to a neutral 3rd party, he would do it himself.
That’s a win for UVa?
The fact is that neither said got what they asked for. The question is, who came out stronger as a result?
ATI clearly wins on the second of your two points.
On the first, well, I don’t know who won, but I know who lost. Mann yet again exposed his desperation to keep those emails from the public eye, and his assertion that no one but he could understand their contents is not only hilarious, it is now on the record. Can you imagine what happens now as those emails finaly come out and the notion that what they say can’t be understood by, for example, the judge himself?
In any battle, both sides take casualties. Pointing to some minor casualties on one side tells one nothing about the progress of the battle.

I haven’t seen the judge’s order yet (got a link) but it appears as though the proposal of UVa was accepted pretty much in toto. Real the first of FredT’s links. UVa appeared to be proposing a Vaughn index (as per Federal procedure) I don’t know if that was accepted. But it would seem that the neutral 3rd party was accepted. I look forward to the judge’s decision which should clear this up.

John Majikthise

Jeff Alberts says:November 2, 2011 at 7:42 pm
…I would be concerned that persons unknown at UVA might be quietly culling the archive of the most incriminating stuff, if such things exist.
In this one statement you accuse without evidence UVa employees of illegal acts, and, without trial or evidence, manage to state that “someone” is a criminal!
Well done!
Whatever happened to innocent until proven guilty?

Venter

The fact that beings like Rattus and FredT have come rushing here to spread disinformation and some blatant lies tells us who ” lost ” it.

Venter,
I hardly think that FredT’s links to submissions to the court are “misinformation”. Like I said, I haven’t seen a link to the judge’s order yet, but it appears to include a 3rd party to review the exempt documents. Is that disinformation?

John Majikthise says:
November 2, 2011 at 8:38 pm
Jeff Alberts says:November 2, 2011 at 7:42 pm
…I would be concerned that persons unknown at UVA might be quietly culling the archive of the most incriminating stuff, if such things exist.
In this one statement you accuse without evidence UVa employees of illegal acts, and, without trial or evidence, manage to state that “someone” is a criminal!
Well done!
Whatever happened to innocent until proven guilty?

I accused no one. I merely speculated that such a thing was very possible. Way to read more into what someone types.
I would think that the court would want to maintain the integrity of the evidence in this case. Would you let an accused car thief keep possession of the car until the trial is over?