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.
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.
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.
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.
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]
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.
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.
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.
DBS; It’s hard for me to read because it’s double spaced with ragged sides, extraneous numbers etc. If I wanted to put the time in I could read it, but it’s a lot easier without that. Here, I’ll do it for you: http://brannenworks.com/Gravity/Mann.txt
Wow. I am so glad I read that through to the end. What an argument. This sort of thing only appears on TV.
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.
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.
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.
@Reg Nelson 1:37 pm:
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:
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
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 @ur momisugly$$.”
And a decent lawyer, typically at least a junior partner to assess the merits of the case, will often say something like “OK, but here’s all the reasons why it won’t work.” And you say, “I don’t care, I wanna kick his @ur momisugly$$ 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.
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.
Unfortunately the Court denied the waiver issue and denied discovery so the two less difficult routes are at least temporarily .. off the table.
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
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.
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)
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.
“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.
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.
We should get a pool together on whats in there? I think it is equity in various green firms.
Jimbo says:
May 2, 2012 at 1:05 pm
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”.
Seconded