Tuesday, August 28, 2012

Will NRO Get Access to Mann's Emails?

Another thing I don't understand about the Michael Mann v. National Review conflict is why the NR side thinks they will get access to his long-sought emails.

Jonathan Adler wrote (and this sentiment has been widely written elsewhere):
A month later, the blog post is still there, and National Review is not backing down. Here’s the response from their lawyer, which notes (correctly in my view) that Mann is a public figure who would have to prove, by clear and convincing evidence, that NR published “a provably false statement” with actual knowledge the statement was false or “reckless disregard” for the truth or falsity of the statement. Further, the letter notes, in order to defend itself NR would be entitled to seek discovery, and in the process obtain access to e-mails and other records that Mann has, thus far, resisted disclosing in various freedom-of-information suits prompted by ClimateGate.
(emphasis mine).
The "hockey stick papers," MBH98 and MBH99, were written when Mann was at the University of Massachusetts at Amherst, before he went to the University of Virginia. It's this work that Mark Steyn called "fraudulent," and while I'm no lawyer, I can't see how a court would allow a party to troll through any and all emails, especially those that came after the work that is the focus of the suit.

Do courts really allow those sued for defamation to have access to all of the plaintiff's correspondence and records -- all postal mail, all email, all voice mail, all documents, regardless of when they occur and their relevance? I seriously doubt it.


J Adler said...

I doubt NR would seek, let alone obtain "all" of Mann's correspondence and records. Rather they would seek discovery of e-mails and correspondence that is relevant to the issues in the suit. Why would correspondence from Mann's time at UVA (and perhaps Penn State) be responsive? Because of the contents of the East Anglia CRU e-mails, particularly those that discuss deleting files and resisting disclosure, and others that suggest the hockey stick's significance was overstated. Whether or not one believes these e-mails discredited climate science generally (and I don't think they did), they did show some unethical conduct that could help Steyn show either that his statements were not provably false (and were, for instance, a subjectc of limited debate) or that he did not show "reckless disregard" for the truth in making his comments. Materials that have no bearing on these matters -- such as e-mails having nothing to do with the hockey stick, or climate science generally -- would lie beyond any proper discovery request.


Jon said...

If they do get access to Mann's emails, does Mann get access to all of their emails, internal memos, etc.? Surely all of that would be potentially relevant to determining whether or not they accused him of fraud knowing the accusation was false.

J Adler said...

It is possible Mann would be able to get access to materials that would suggest Steyn was aware his claim was "provably false" or acted with reckless indifference to it. But, as a legal matter, I believe Mann will have difficulty demonstrating that Steyn made a "provably false" claim in the first place. This is not because I believe Mann engaged in any scientific misconduct in preparing the hockey stick studies, but because (among other things) the studies have come under serious criticism (a true claim even if one accepts that the studies were subsequently validated) and the so-called Penn State investigation was a joke. The point here is that Steyn does not have to prove that Mann has engaged in any misconduct to mount a successful defense, but Mann has quite a bit to prove in order to prevail.

QUICK CORRECTION TO MY FIRST COMMENT ABOVE: Where I wrote "limited debate" I meant "legitimate debate."

Paul S said...

J Adler,

I think you're missing that the phrase used to describe Mann's work in the NRO piece was 'fraudulent', not 'controversial', or 'subject to serious criticism'.

Would Mann need to definitvely prove that his work was not fraudulent, or would it suffice to show that Steyn had no reasonable basis for making a serious accusation - hence, reckless disregard?

Regarding the emails, is discovery subject to confidentiality agreements?

Brian said...

The usual legal standard is whether an evidentiary request is overly burdensome and therefore can be quashed. The thousands of docs that Mann is likely to have related to the hockey stick suggests that a blanket demand for all of them would get quashed. Defendants would have to narrow their request.

I haven't been involved in this type of litigation, but I think Ds can't simply assert fraud and then troll for evidence to prove it. They may have to provide some evidence of fraud before a judge will allow them to do discovery to back it up. Not sure about that....