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.

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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?

David, UK

This is a car crash in slow motion. And I’m loving it.

Follow the Money

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!

Mac the Knife

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

ac

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.

Pull My Finger

Oh Snap!

polistra

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

Robert Thomson

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?

Ian W

Hoist on their own petard – a nice argument.

Pat Frank

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.

carlbrannen

Could you reformat this so that it’s readable?
[It is easy to read on my computer. ~dbs, mod.]

the1pag

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

JEM

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.

LearDog

Holy crap! Devestating… Oh man, to have been a fly on the wall….

Mike Smith

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.

Alvin

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.

RockyRoad

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.)

Jimbo

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?

Gunga Din

“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!

KnR

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 ‘

Marcos

is the full transcript available anywhere?

BobN

That last bit about Mann using Wegman’s FOIA’d emails is rich.

Bob Shapiro

“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.

prjindigo

Ayn Rand was an internet troll before digital storage was invented, Bob.

Dan in California

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.

Reg Nelson

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.

ac

“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.

Lew Skannen

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.

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…

Brandon Shollenberger

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.

Follow the Money

“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:

OK S.

Brandon Shollenberger,
I believe this is the full transcript:
http://www.atinstitute.org/wp-content/uploads/2012/05/2012-04-16-Hearing-Transcript-full.pdf
OK S.

John Whitman

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

Hugo Van Dofrenzeim
Jimmy Haigh

Yup. That gun is smokin’…

Duster

“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.

Dan in California

I have a correction to my previous post. It’s BP and Shell that have funded the Climatic Research Unit. http://www.ask.com/wiki/Climatic_Research_Unit

Dr Burns

I can’t wait for the movie version.

clipe

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

Alexander K

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

Ian Hoder

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.

kramer

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?

Tom in Florida

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.

Big D in TX

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.

Nick Stokes

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.

Doug in Seattle

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

Tom in Worcester

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

Q. Daniels

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.

Gail Combs

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.

Gail Combs

Dan in California says:
May 2, 2012 at 2:16 pm
I have a correction to my previous post. It’s BP and Shell that have funded the Climatic Research Unit. http://www.ask.com/wiki/Climatic_Research_Unit
____________________________
The Rockefellers are now pressuring Exxon-Mobile to hop aboard the CAGW bus too. http://rense.com/general81/rock.htm