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.
Why do you think there is something in the e-mails? Mann just likes to fight, same as Phil Jones.
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?
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.
“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.
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.
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
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.
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.
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.
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.
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”.
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.
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.
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…
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.
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.
jmsully:
Somehow I doubt that you’ve read everything. Anyway, the central point is this:
And Mr. Schnare offered the book to the Court:
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);
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.
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.
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.
jmsully,
Go argue your peripheral conspiracy theories with your bunny pal. I didn’t click your link; I’m uninterested.
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.
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.