CLW readers know about Government Accountability & Oversight’s (GAO) Public Records Act litigation against UCLA Law School, filed on behalf of the Competitive Enterprise Institute. This involves records of two faculty, including professor Ann Carlson, both a consultant to the climate litigation industry and a media go-to for ostensibly neutral (if reliably admiring) assessment of that industry’s work.
Recent developments add further intrigue to an already remarkable situation.
UCLA produced numerous records very informative to the public debate, about the school’s, and particularly Carlson’s, relationship with and role in the climate litigation industry. The University claimed to be withholding no records — only several highly dubious redactions of certain portions of emails on the basis that releasing the text would impermissibly harm its donor strategy. Ahem.
The original record production showed how faculty were anxious about producing these records, surely with faculty member Cara Horowtiz’s email sent from the “secret meeting at Harvard” among those in mind. This resulted in the delightful euphemism that “disclosure may not be in the public interest”.
Subsequently, UCLA produced an April response to discovery requests by local counsel James Hunter. Among them was an email thread containing 6 messages reflecting Carlson’s request for slides Sher had “presented at UCLA” (this thread was produced only all in one, as opposed to producing each email and each ensuing thread). This presentation was presumably a private one including, at minimum, law faculty who also happen to cheer-lead for his work, given Sher agreed so long as the slides weren’t attributed to him.
Incidentally, Sher said same thing about attribution to an IT officer who contacted him during discovery. It is unclear why he takes this position. It is possible that acknowledging that the words coming out of the seemingly objective, chin-stroking academic observer’s mouth might color not only that commentary but — depending on the content — the plaintiffs’ cases (what it surely would not impact is the media’s deployment of Carlson as a go-to neutral observer).
Regardless, these slides, clearly visible in the email thread as “UCLA.pdf”, were notably missing from UCLA’s production. This is where we pick up here.
The school ignored numerous inquiries about this Mystery of the Missing PDF. It only stated, in communications with local counsel Hunter, that it had withheld no records from the production (just those “donor strategy” excerpts).
After we sent a separate PRA request seeking just that attachment, UCLA, through litigation counsel, informed us that the document — an attachment to a released email thread, i.e., that *does* exist — does not exist because it was deleted by the recipient.
The recipient does not own this record, the public does. We must leave for further discovery or trial such issues as how a professor deleting an email — one that the school still managed to produce in its entire-thread form, sans the attachment — would destroy the copies on the school’s system, and how might any of this square with University record retention policies.
Which of course begs the question whether the school does in fact maintain backups or backend logs.
This is all highly unusual and, if a faculty member can destroy all copies of a record by deleting it from her own email, then undoubtedly in violation of University (state) policy.
It is also relevant to a critical public debate. As CLW noted on April 23, 2019:
UCLA’s actual production of records it has been withholding, and the privilege log attendant to that, are still to come [NB: it has failed to provide a log of records it decline to produce in discovery]. Even Friday’s production of certain records about the school’s handling of the requests showed there is much more there to be learned that is valuable about this industry.
Litigation proceeds to gain answers to the questions raised here. Including when Prof. Carlson deleted this public record, a presentation that its tort-lawyer author is fine seeing the light of day, just as long as it is not attributed to him.