It appears UVA gave Michael Mann a copy of the documents we have sought and under law this means UVA waived its right to withhold the documents from us. UVA effectively admitted they gave the emails to Mann and in their most recent motion and legal memorandum  they argue we are trying to do an “end run” to obtain them from Mann instead of UVA.  In light of UVA’s delaying tactics and on the basis of this new information, we are going on the attack.   Hence our motion and memorandum of law.We ask the court to find that UVA waived their right to keep the emails secret and ask the court to order UVA to hand them over to us.
Keep in mind, UVA calls these documents “proprietary” and thus something they don’t want their competitors to have. But who is Michael Mann and Penn State if he and his university are not UVA’s competitors?  He and Penn State compete for research grants, quality students and quality faculty. These are exactly the people and institutions against whom UVA has a right to withhold its emails (if they actually contained economically valuable information).
Many have asked us about the status of the law suit against the University of Virginia challenging their withholding of 12,000 emails written or received by Michael Mann while he was a junior faculty member there. Because the University has taken every step it could to delay this getting to the judge, it has taken a long time to get where we are and will take several months more.
At present, it has been one year and one month since we filed our Freedom of Information Request.  Only after we filed suit to force their response did we receive about 1,700 emails.  We were told they withheld about 6000 others.  That 6,000 ballooned to 12,000.  We got UVA to agree how to select a small set of examples to give the court to test their claims of exemption.  (They were claiming that all these 12,000 contained “proprietary” information.)  Once that was in place, Mann entered the case, and, the UVA faculty went crazy when they realized that under the agreement we (ATI) would get to look at all the emails while we were selecting examples.  Note, under the protective agreement, we weren’t allowed to show the emails to anyone.  UVA, in another delaying attack, went to court and said they wanted to walk away from their prior agreement.  The court, recognizing that there were other ways to skin the cat, let them do it.  So, we came up with a second approach.  We got UVA to agree to take examples we supplied that we got from the Climategate releases, as well as from individuals who had been in communication with Mann and had emails to and from him.  We have now supplied UVA copies of those emails.  The University must now determine if those emails are in the collection they hold.  (We are quite certain they are.)  Then, UVA gets to add any others it want to the bunch and that will become the “exemplars” we will use to argue before the Court.
In the mean time, we used the routine pre-hearing/trial procedure of asking UVA and Mann to provide us additional documents that we believe would lead to evidence we could supply to the court to make our case.  This is called “discovery” and is allowed by the rules of the Virginia Supreme Court.  It is almost always done in civil cases.  We also gave notice to UVA and Mann that we would depose each on these related issues.  They refused to honor both the discovery and deposition notices and instead sent a motion and a supporting legal memorandum to the court to forbid this.  More delay.
In response to their motion, and in response to their delay, ATI has filed a new motion of our own, along with a 30 page memorandum of law and another 40 pages of attachments.  The ATI motion asks the court to order immediate release of the emails since they already released them to an academic and economic competitor.
In light of our response, we are not going to get back before the Judge until April, which also happens to be when the Judge next is free to hear the motions.  (Yes, he is on vacation.  He’s a retired judge and is allowed to take some time off.)   What the judge does at that point will either lead to a hearing in June or one in August, the latter date associated with our being allowed to do discovery.


David Schnare
Environmental Law Institute

– See more at: http://www.atinstitute.org/status-update-on-uvamann-foia/#sthash.mQUsyhbE.dpuf