Key Global Warming Court Case hit by Fatal Technicality
Written by PSI Staff
Climate scientist left with nowhere to hide in unwinnable multi-million dollar libel claim. Michael Mann’s lawyer, Roger McConchie, tries to put on a brave face as his client’s SLAPP suit against Tim Ball hits a fatal technicality that bodes ill for Penn. State University’s climate data fraudster. Defeat and disgrace for Mann is inevitable due to his continued refusal to show in open court what Mann still laughingly terms his “proprietary data.”
Last week McConchie, who “literally wrote the book” on Canadian libel law, issued a standard facile press release dismissing as “preposterous…nonsense” a Principia Scientific International (PSI) article in which John O’Sullivan, an outspoken party to the proceedings, astonishingly declared Mann’s case against Ball effectively dead. O’Sullivan immediately replied mocking McConchie. As we see detailed below, McConchie can’t flim-flam his way out of this one.
To readers unfamiliar with Canadian rules of civil procedure, Under Canadian law (Sedona Canada Principles), it is unlawful for an attorney to be complicit in his client’s intentional withholding of key evidence from the court. Penalties and sanctions include fines, professional sanctions and disbarment for wilful offenders, not to mention potential summary judgment in favor of the opposing litigants (in this case, Dr Tim Ball).
The Sedona Canada Principles (see www.thesedonaconference.org) provide guidance with respect to the evidence preservation/disclosure obligation . Canada demands that all litigants (and their attorneys) preserve documents or records from a wide-variety of data types, storage locations and the applicable applications to retrieve such information (if it relates to out-of-date or older archived records). For Michael Mann, this meant he had to prevail upon the Information Technology personnel at Penn. State University and his former employers at the University of Virginia to retrieve and surrender to him (and the British Columbia Supreme Court) all paperwork plus any “data and information stored in electronic form”
The Sedona Canada Principles are of great advantage to Dr Ball being that Mann cannot persist indefinitely in unlawfully keeping under wraps his “secret science.” Already three years have passed since Mann first filed his claim against Ball after Ball published an article in Canada Free Press whereby he joked that Mann “belongs in the state penn, not Penn State.“
But all joking aside, the intentional concealing of key evidence is always fatal to any offending litigant’s claims, and any such act of concealment is known in the legal profession as spoliation. Wilful spoliators (evidence destroyers/concealers) now face the most stringent penalties under Canadian law.
The Sedona Canada Principles is the preferred weapon against spoliators and was implemented across Canadian courts from 2006 to respond to the explosion in the amount and nature of information being created and facilitated by the introduction of computer technology in all walks of life.
Respected Canadian legal expert, John Kingman Phillips of Fernandes Hearn LLP, explains as follows:
What is Spoliation?
Spoliation has been summarized in North American Road Ltd. v. Hitachi Construction Machinery Co. (2005) by the Alberta Court of Queen’s Bench, as follows:
Spoliation is the destruction or material alteration of evidence, or potentially the failure to preserve property for another’s use as evidence in litigation that is pending or reasonably foreseeable (Osepchuk v. Tim Hortons 1645,  A.J. No. 542, 2003 ABQB 364 at paras. 43-44). Spoliation creates the rebuttable presumption that the evidence would have been unfavourable to the party that destroyed it (St. Louis v. Canada (1896), 25 S.C.R. 649 at 652-653).
In the discovery setting, inappropriate records preservation or counsel’s failure to advise the litigant of the records preservation obligation, may affect the litigant’s chances for success in its claim or defence. This risk becomes particularly acute where electronic records and data are concerned, given the volume, nature and ease of erasure or modification of such material, and where the scope of what may be relevant remains uncertain.
In one of the few appellate cases to address the point, the Alberta Court of Appeal in McDougall v. Black & Decker Canada Inc. (2008), summarized the Canadian law on spoliation as follows:
1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending.
2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case.
3. Outside this general framework other remedies may be available — even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs.
4. The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open.
5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response.
6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.
Mann’s case is thus unwinnable as long as he refuses to show his secret r2 regression numbers. We know he still has them and are not lost or destroyed because he admitted as much in court papers in 2011. He withholds them deliberately and thus holds an unfair advantage in these proceedings.
Tim Ball’s lawyers now enjoy an array of potential sanctions (including dismissal of claims and striking of defences) to defeat the Penn State data fraudster, who, if past behaviour is any guide, won’t be giving up his secret science.
Michael Mann is particularly desperate to keep hidden his r2 regression computer code, which have been withheld from sceptical scientists who wanted to verify his work since 1998. Larry Bell, over at Forbes, has a fine article (Sept 18, 2012) giving some bankground into this. It is the code that, if seen in open court, will prove conclusively whether Mann intentionally and deliberately faked his ‘hockey stick’ graph to create the illusion, most famously in the globally influential UN’s IPCC Report of 2001 (AR3), that humans were dangerously warming earth’s climate. Mann then compounded his mendacity and ill-gotten fame by (falsely) claiming to share a Nobel Prize with the IPCC which PSI’s Thomas Richard first exposed. In his court papers Mann also fraudulently claimed a slew of official investigations cleared of him of any wrongdoing. But none of those investigations ever had sight of those hidden r2 regression numbers Tim Ball (and I) want examined in the BC Court.
It is the crucial evidence that will prove once and for all whether Ball’s “state penn” jibe was fair comment or not. By foolishly and arrogantly suing Tim Ball for libel in the British Columbia Supreme Court, Mann’s day of reckoning has finally come.
 The Sedona Canada Principles:
Principle 1: Electronically stored information is discoverable.
Principle 2: In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
Principle 3: As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.
Principle 4: Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.
Principle 5: The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.
Principle 6: A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information.
Principle 7: A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect potentially relevant electronically stored information.
Principle 8: Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process.
Principle 9: During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.
Principle 10: During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums.
Principle 11: Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.
Principle 12: The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.