University of Virginia: Judge Rules on Motions in Michael Mann Email Case

"A court in Virginia agreed yesterday that Michael Mann did have standing to join the ATI vs UVa lawsuit (unsurprising) and also agreed to UVa's request to reopen the consent decree that UVa had signed with ATI (again unsurprising)....

UVa successfully argued that the original arrangement should be re-opened mainly because they were unable to trust the ATI lawyers to maintain confidentiality of the process. This is not a surprising argument given the amount of misrepresentation, disinformation and hyperbole seen in any of their filings, and even more so in their public pronouncements, but it was strengthened enormously by the behaviour of David Schnare in the process of this lawsuit itself.

Schnare, it turns out, was actually a federal civil servant with EPA(!) until a few months ago. According to Nature News, he misrepresented himself in communications with UVa, furthermore, he was not granted permission to engage in outside activity for ATI by his federal employers."---Climate Science FOI Report (11-2-11)

The University of Virginia has posted the following press release about the case (11-2-11):

Judge Rules on Motions in Mann Email Case

November 3, 2011 — A Prince William County Circuit Court judge Tuesday granted a motion in favor of the University of Virginia and another filed on behalf of former faculty member Michael Mann.

Mann, formerly an environmental sciences professor in U.Va.'s College of Arts & Sciences, is one of the scientists whose email was hacked from the University of East Anglia in November 2009. Climate-change skeptics seized on the emails and claim they show that scientists falsified their research to support the idea that the Earth's climate is warming.

Ensuing controversy has raised two important issues: Does political pressure have a chilling effect on scientists who pursue research that may become unpopular politically? And do scientists have the academic freedom to communicate with confidence that these communications won't become public and then misconstrued?

The motions granted Tuesday relate to a January Freedom of Information Act request from the American Tradition Institute for extensive records, including Mann's email from his time on the U.Va. faculty from 1999 to 2005. ATI filed suit in May, claiming that U.Va. was too slow to comply and was unfairly charging for providing the emails. ATI's suit also requested that a process be put in place to minimize the number of excluded emails the court would need to review.

The University has already released hundreds of non-exempt records in response to the Freedom of Information request. Prince William County Circuit Court Judge Gaylord Finch earlier ruled that U.Va. had followed Virginia law in passing along to ATI its costs for reviewing and providing the non-exempt emails.

Finch Tuesday granted the University's motion that a protective order governing the review of the exempt emails be revisited. At issue is how the University can demonstrate that the approximately 12,000 documents it considers exempt are indeed exempt under the law.

Also, Finch granted a motion – supported by the University and opposed by ATI – to allow Mann, now a professor at Pennsylvania State University, to intervene in the case. Court rules allow a person who is not party to a lawsuit to intervene and become a party if that person's interests are sufficiently distinct from the other parties' interests that he or she should be represented. Mann's lawyer will work in partnership with University counsel going forward.

"We were very pleased with the judge's decisions and feel they were proper and appropriate," said Richard C. Kast, who presented the University's arguments with co-counsel Madelyn Wessel Tuesday. Each is an associate legal counsel at U.Va.

The earlier order would have allowed David Schnare and Christopher Horner, lawyers and staff members for ATI, to examine all of Mann's emails to see whether they agreed with the University's classifying them as exempt and, if not, to collaborate with University lawyers to select representative emails to be reviewed by the judge.

Although Schnare and Horner would have been required to keep the content of the emails confidential under terms of the order, scientific groups have protested that it is improper to release all of them for review and questioned whether the confidentiality pledge would be upheld. The University shared their concerns.

The University and ATI now have until Dec. 20 to agree on a new process in which a neutral third party would have access to the complete records and select samples on which the parties will make their arguments to the court under the Virginia FOIA.