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Dr. Michael Mann of Penn State University is one of America's foremost hero climate scientists. This has made him a lightning rod for right wing conspiracy theories from the climate change Hoaxers.. But Dr. Mann is tired of being a Hoaxer whipping boy.  He has been a favorite target for fact-free ridicule spewing from climate change deniers since long before Ken Cuccinelli took Dr. Mann and Penn State to Court in 2010 on a fishing expedition for Dr. Mann's emails with other scientists.. Now, however, Dr. Mann has turned the table on the Hoaxers. Wielding the mighty Code of Civil Procedure, Dr. Mann has declared war against the evil forces of climate change denialism, dragged the climate change denialists into court, and has demanded strict proof of their bullshit. So far, he is winning.

I am ashamed I didn't already know about Dr. Mann's D.C. Circuit lawsuit against the National Review and others.. (HINT: This link will give you access to the D.C.Circuit Court case docket if you follow the instructions: You have to enter the case number in two parts. First is "2012' the other field is "008263" A third piece is the "Case Type", a drop down menu. The choice is "CA"). This is the kind of news I usually look for and try to follow, but I didn't know a thing about Dr. Mann's defamation suit against the conservative establishment until martianexpatriot published the rec list diary addressing a milestone ruling in the case of Dr. Michael Mann vs. National Review, and others.

Dr. Mann is a registered Kossack and has published here. The story of Dr. Mann's struggle against climate change denialism has been referred to before on Daily Kos, but this particular court case has never been analyzed in detail. Given my lifetime interest in U.S. Constitutional Law, my sometime legal career actually practicing U. S. Constitutional Law and my soulless fascination with U. S. Constitutional Law, I should have been paying attention to this case. But, I'm on it now and I've already dug into it a bit. Follow me out into the tall grass for an explanation of what is going on in Dr. Mann's defamation suit and what we might expect next.

From court papers, here is what Dr. Mann's libel suit is about:

On October 22, 2012, this action was filed in which Plaintiff alleges libel and intentional infliction of emotional distress against Defendants National Review and Steyn (the œNR Defendants along with co Defendants Competitive Enterprise Institute and Simberg (the œCEI Defendants). Plaintiffs suit is based primarily upon the NR Defendants and the CEI Defendants' following statements: (1) Defendant Simberg statement published in Openmarket.org that Plaintiff had engaged in data manipulation and scientific misconduct and the posterboy of the corrupt and disgraced climate science echo chamber; (2) Defendant Steyn statement in the National Review Online that Plaintiff was the man behind the fraudulent climate-change hockey-stick graph, the very ringmaster of the tree-ring circus; and (3) Mr. Lowrys statement in National Review Online that indicated Plaintiff™s work is œintellectually bogus.
What has happened so far in the lawsuit is that the Court overruled two different kinds of motions to dismiss filed by the defendants, allowing Dr. Mann's case to go forward. Up until now, no discovery has been allowed in the lawsuit because one of those Motions to Dismiss was based upon a SLAPP statute.

SLAPP stands for Strategic Lawsuits Against Public Participation. In the District of Columbia Circuit Court where Dr. Mann filed his suit, the SLAPP law works like this:

Under the law, any act in furtherance of the right of advocacy on issues of public interest will be protected.  Such acts include any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or in a place open to the public or a public forum in connection with an issue of public interest.  In addition, any other expression, or expressive conduct, that involves petitioning the government, or communicating views to members of the public in connection with an issue of public interest, is protected.  An issue of public interest is defined, under the law, as an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place.  However, the statue also dictates that the term “issue of public interest” shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on, or sharing information about, a matter of public significance.

The law provides a defendant who is the target of a SLAPP with the right to file a special motion to dismiss which stays discovery.  If the Court grants the motion, it may award the defendant appropriate fees and costs.  Furthermore, a person whose personally identifying information is sought, pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest, may make a special motion to quash the discovery order, request, or subpoena.

As a result of the SLAPP motions by the defendants, even though Dr. Mann's lawsuit has been pending for a full nine months, discovery has not yet begun. I love the irony of the National Review posturing to its fundraising base about its plans to beat up Dr. Mann with discovery, and the first thing they do is to file a motion preventing any discovery. The case is now past that point.  

The case will now proceed like any other civil matter litigated by top flight D.C. litigation firms. As noted, the next phase is discovery, which could not begin until the court ruled on the motions this week.

The rest of the case will generally unfold in three stages: 1) Discovery; 2) More Motions; and 3) Disposition (with or without bench or jury trial).  For now, let's consider a few thoughts about the next stage, Discovery. Unless someone beats me to it, I will post later about the other phases of the case to come.  

Discovery has a very particular set of meanings to lawyers litigating a civil case. Discovery is intended to be informal, but seems defined largely by certain forms. For example, there are Written Interrogatories, which are questions that a party must answer based upon all of the information known, possessed or subject to the party's control. There are Requests to Produce documents and things and motions to permit inspections of places. A Deposition Upon Written Questions is first cousin to Written Interrogatories and bears only superficial resemblances to the DWQ's uncle, the Oral Deposition. Often a court will require litigants to meet and negotiate about discovery, declare their discovery objectives and file a written discovery plan.

I expect the scope of discovery to be very broad in this case. Truth is always a defense to a charge of libel, so the defendants will be allowed considerable leeway to find evidence that their attacks on Dr. Mann are fact based. The allegations probably make Dr. Mann's lifetime oeuvre on climate science an open book, including the work behind his published material and, yes, emails in which he discusses his work. Dr. Mann has a pretty good D.C. attorney to sue the National Review and its colonic polyps like the Competitive Enterprise Institute. I'm pretty sure Dr. Mann's legal team knows what they are in for and how to handle it. But discovery is a two way street. Professor Mann's lawyers get to do discovery, too. For both sides, the information they seek doesn't have to be relevant, merely capable of leading to relevant evidence.

So, imagine one of Dr. Mann's attorney's asking archly, why exactly, is it, National Review, that you don't believe the conclusions Dr. Mann draws from his science, hmmm? Who exactly is whispering in your ear about this? Is his name David, or Charles? How about Exxon? How about Clean Coal, whatever the hell that is? Whose science do you like better. Why? Who, exactly is advising NR about this issue?

I'm guessing here that NR will mount an all out discovery assault on every footnote of every paper Dr. Mann ever put his name on, while exploring every conversation and communication he has ever had, while simultaneously and obstreperously obstructing any inquiries into its own editorial process, all in the name of protecting sources and the 1st Amendment. I'm predicting, with considerably greater confidence, that an honest trial judge (the one in this case might just be one of those) will slap NR down in their shoes for the kind of discovery crap I expect them to pull in a case like this.

I'm going to keep an eye on this docket, particularly, at this point, to see if any discovery disputes bubble to the top quickly. Judge's hate it when they have to get involved in discovery.

I am going to brush up on my 1st Amendment defamation law germane to Dr. Mann's suit. Unless other news breaks in the case sooner, my next post will explain how the 1st Amendment messes with libel law and places a very heavy burden of proof on Dr. Mann in this case.

Originally posted to LeftOfYou on Tue Jul 23, 2013 at 11:20 AM PDT.

Also republished by Climate Change SOS and Community Spotlight.

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