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Michael Mann Could Be in Legal Hot Water for Refusal to Turn Over 'Hockey Stick' Data

The inventor of the hockey stick graph, Penn State Professor Michael Mann, is in hot water in Canada over a lawsuit he filed against a climatologist, Dr. Tim Ball, one of his main critics. The results of this lawsuit have wide-ranging implications for everything from the validity of his hockey stick graph as proof of man-made global warming, to the right of free expression.

Mann is allegedly in contempt of court for refusing discovery to the person he's suing for defamation. Dr. Ball claims he agreed to an adjournment of the court proceedings on the condition that Mann turns over all the data used to create his hockey stick graph that purports to show a spike in global warming in the twentieth century. The discovery of this data is vital to Ball's defense, as he has criticized the methodology used to create the graph.

Mann's refusal to comply with this aspect of discovery has been hailed by some as proof that the data behind the hockey stick graph doesn't exist, and the graph is a fraud. While it may be premature to make such a sweeping declaration, Mann's purported refusal to cooperate in this legal proceeding is damning.

The implications are obvious. Should he continue to refuse to comply, it will remain impossible to reproduce his scientific findings — one of the most important aspects of the scientific method. Mann has jealously guarded his data, refusing to allow the world to examine his findings, claiming they are his "intellectual property." Ball said in a recent interview, "We believe he [Mann] withheld on the basis of a US court ruling that it was all his intellectual property. This ruling was made despite the fact the US taxpayer paid for the research and the research results were used as the basis of literally earth-shattering policies on energy and environment. The problem for him is that the Canadian court holds that you cannot withhold documents that are central to your charge of defamation regardless of the US ruling."

Mann's lawsuit against Tim Ball has gone on for many years. Ball believes this is a SLAPP-style lawsuit designed to bully him into silence. SLAPP (Strategic Lawsuit Against Public Participation) cases have been used to suppress free expression through lawfare. Many states in the U.S. and provinces in Canada have greatly restricted the ability to file them.

"The Mann lawsuit was not the first from the same lawyer, Roger McConchie, a man who made his reputation as a champion of free speech," Ball explained in an email to PJM. He said that all three of McConchie's lawsuits were filed in British Columbia because it is one of only two jurisdictions in Canada that has not passed anti-SLAPP legislation.

"The first was filed approximately seven years ago [on behalf of] Gordon McBean, a former Assistant Deputy Minister for Environment Canada," Ball said. "He chaired the founding meeting of the IPCC [Intergovernmental Panel on Climate Change] in Villach, Austria, in 1985."

"My wife and I decided to withdraw the claimed defamatory article because we could not afford to fight. However, within the year, so some six years ago, we received another lawsuit from McConchie, this time on behalf of Mann. It involved an interview I gave after a public presentation of the Hockey Stick, explaining how it was wrong and contradicted all the extensively documented historical material."

In an interview after the public presentation, Ball was asked his views about Mann. He replied, "He was at Penn State but maybe it should be State Pen." McConchie then went on to sue Ball's publisher (The Frontier Centre for Public Policy), which is a standard practice with SLAPP lawsuits.

"My wife and I were discussing what to do, when nine days later we received the third lawsuit from Andrew Weaver, a lead author on the section on computer models for four of the IPCC Reports (1995, 2001, 2007, and 2013)," Ball explained. "At that point my wife and I decided we were not going to be bullied anymore and launched our defence."

As explained at the Climate Change Dispatch blog, there are specific violations of statute and case law that indicate Mann could be held legally liable:

But reality now beckons and Ball is, as per B.C. court rules, entitled to have his lawyer fashion any reasonable remedy to right this wrong. He can, if he wishes, apply to enforce the crux of the ‘truth defense’ he has relied on from the outset. This strategy permits Ball, if Mann doesn’t show his hidden data, to be vindicated under the law such that Ball’s words, that Mann belongs in jail for data fraud, are true. Not releasing his secret science for open courtroom examination means, legally, this is an omission proving a guilty mind. B.C. case law is specific on this, it tells us intentional withholding of key evidence is an “admission of guilt” ( id.).

So, what now for this serial liar and SLAPP suit specialist?

Well, things look mighty bleak for both Mann and McConchie hereon in. This is because a lawyer’s written undertaking during trial is not just an enforceable agreement, it is something the breach of which can give rise to professional regulatory sanctions. He could lose his law license.

There are many rules Mann and his hot shot lawyer have breached (inc. but not limited to: B.C. Court Rules; (19)’ An order under subrule (18) (an ‘Order by consent’); Rule 7-2 (1) (a); (2) (a) through (e); (14); Rule 7-7 — Admissions, etc).

In such cases, where the wronged party has been unlawfully denied access to the evidence, British Columbia (the jurisdiction where this case is being tried) permits a choice from among some powerful remedies. These exist to make wronged parties whole again when they suffer such an egregious transgression as Mann’s (some examples here).

Using case law precedents (such as Hodgins v. Street) Dr. Ball may likely ask for an ‘adverse inference’ remedy. This kind of remedy allows an insertion in the final court judgment to say that Mann refuses to disclose his dodgy ‘hockey stick’ data because to do so would have proven the truthfulness of Ball’s statement that Mann “belongs in the state pen, not Penn. State.” In other words, Mann did commit criminal fraud with his graph [1]

Ball, 78, goes on to say that defending himself for the right to express his opinion has cost him most of his life savings — over $1 million Canadian. He expects to prevail and recover damages and legal fees, but that process can take years.

Moreover, Ball notes, Mann has profited handsomely off the hockey stick graph, which was paid for while he was in the Virginia university system — which is why Ken Cuccinelli sued him when he was Virginia's attorney general. "Think about that. Not only does he deny me the documents I need to prove my innocence against his charges, but the money he used to collect and publish that data was provided by the taxpayers of Virginia and the falsified results used to create global policy on climate, environment, and energy."

For his part, Mann is aware of the accusations and issued a scathing statement from his lawyer on his Facebook page:

Michael E. Mann

July 6 at 10:01am ·

A response from my attorney Roger McConchie w.r.t. the latest spurious claims by John O'Sullivan (info about O'Sullivan here: https://www.desmogblog.com/affidavits-michael-mann-libel-su…)

#FakeNews

_____

Contrary to the nonsensical allegations made by John O’Sullivan in his July 4 posted on climatechangedispatch.com and elsewhere, plaintiff Michael Mann has fully complied with all of his disclosure obligations to the defendant Tim Ball relating to data and other documents.

No judge has made any order or given any direction, however minor or inconsequential, that Michael Mann surrender any data or any documents to Tim Ball for any purpose.

Accordingly it should be plain and obvious to anyone with a modicum of common sense that Mann could not possibly be in contempt of court.

Just to be clear: Mann is not defying any judge. He is not in breach of any judgment. He is not, repeat not, in contempt of court. He is not in breach of any discovery obligations to Ball.

Ball said via email that Mann's statement is not valid and is contrary to court records. "The truth is the papers were sought and never provided and are still not provided, which blocks me from my defence of his charge."

It is interesting to note that Mann is defending himself as vigorously in the court of public opinion as he is doggedly pursuing his critics in legal court.

It is not an exaggeration to say that the question of the existence of man-made global warming, as well as the right to suppress free expression with which one disagrees, will be on full display as this and the other lawsuits against Dr. Ball wind their way through the courts.

As Ball summed it up from his home in Victoria, British Columbia, "Americans must defend free speech at all costs because you can see what happens in the rest of the world where we don’t have it."