Rich Lowry, the National Review Online and the American Enterprise Institute maliciously libeled hero climate scientist, Dr. Michael Mann, among other ways, by trying to tie Dr. Mann's climate science to the Jerry Sandusky pedophilia scandal and cover-up at Penn State. In September, 2012, Dr. Mann fought back against these prominent climate science deniers, suing NRO and CEI for defamation in Washington, D.C. Superior Court. Lowry gloated online that his team of noble climate change deniers, you might call them hoaxers, would use the power of court ordered discovery to get to the bottom of their pipe dreamed scam of the hockey stick graph, etc.
I've reported previously on progress in the case, here, here and here. Now, there has been another development in the case and it's funny. That is, if it is possible for a matter of civil procedure to be funny, which it is, for me. Follow me out into the tall grass to talk about what's been going on in Dr. Mann's courageous court battle to publicly clear the reputation of climate science.
Rich Lowry wasn't lying when he told his audience about the power of civil discovery in a court case to get to the bottom of a controversy. He was lying about which side of this case really stood to benefit from such discovery. Dr. Mann's science, being science, is a well vetted, open book. There is nothing to hide. Not so the guiding hands and sustaining touch of the unseen oligarchs and extremists behind hoaxers and deniers. NRO and CEI have much to hide about the origins of the crap they spew about climate. They are terrified of having this lawsuit result in regular civil discovery.
That is why everything the defendants' lawyers have done in the case has been directed at preventing the commencement of regular civil discovery. Because these are media defendants, special protections delay discovery until after a high level of scrutiny has been applied to protect First Amendment interests in Free Press. Accordingly, the defendants counter-attacked Dr. Mann's allegations with a carpet bombing barrage of motions to dismiss, motions to reconsider, etc etc, leading to an interlocutory appeal and stay of proceedings pending that outcome. Until just before Christmas, that is where matters stood. Dr. Mann's claims lay locked away, stalled in a procedural time warp, while the amicus briefs piled up. Yawn.
Now, the funny part.
I don't know if Rich Lowry's legal minions got revved up on star bursts or something. But it turns out they jumped the gun, couldn't stay in the saddle, petered out. The defendants fought for and got a stay of proceedings in the Superior Court before the Court got around to ruling on the motions to dismiss the amended complaint. The defendants only appealed, only could appeal from the ruling on the original petition. An appeal is an assessment by a higher court when a party complains the trial judge did something wrong, something meaningful where a decision on the appeal could make a difference in the case.
But, first things first, the Superior Court has not ruled on the motions against the amended petition. That's the petition that matters. Those motions to dismiss the amended petition are the motions that matter. When the Superior Court rules on those motions, direted to that petition, maybe then there can be an appeal and maybe not. But for now, the ruling on the original petition no longer has any effect. After the defendants got the Superior Court stayed pending the outcome of their useless, pointless interlocutory appeal, there no longer could be a ruling on the defendants' motions to dismiss to the amended petition.
It's all about two different versions of Dr. Mann's petition, that is, his official allegations that he must prove against the defendants. There was Dr. Mann's original petition, filed when the case was first docketed in September 2012. But that original petition was supplanted by an amended petition, opposed, filed with leave of court in July 2013. Amendment of allegations in civil cases is routine and commonplace and not always opposed.
Before July 2013, the parties had been litigating to beat the band about the defendants' motions to dismiss and defendants had been opposing Dr. Mann's request to amend his petition. In July, the Superior Court judge granted Dr. Mann permission to amend and, the following week, denied the motions to dismiss the original petition on their merits. The defendants sought reconsideration and eventually filed an appeal and a stay pending appeal. Along the way they filed to dismiss the amended petition, too.
But, in all of that ruckus, the Superior Court judge has never ruled on the motions to dismiss the amended petition. So, the defendants' interlocutory appeals were filed, and suppression of discovery was continued, on the basis of a matter that, procedurally, had become legally moot. The Court of Appeals could not even reach the question of whether it possesses jurisdiction over this kind of mid-case appeal. Which is exactly what the Court of Appeals ruled (PDF) the week before Christmas.
NRO and CEI's team delayed the case for months on the basis of an appeal from an order that had no legal effect. As a lifetime civil litigator, I can tell you that, as a matter of unmatched, aggressive civil litigation obstruction, the performance of the defendants' attorneys in Dr. Mann's case, conjuring a four month, completely useless delay, out of nothing, takes one's breath away, sheer pettifoggery that it is.
I imagine we can anticipate a similar measure and kind of faith to truth and reason from these folks should the case ever push through the defendants' mountain of procedural obstructionism and reach the point when Lowry and his co-d's must begin to discuss the merits of Dr. Mann's accusations of journalistic malpractice by the wing-nut echo chamber.