University now says it destroyed original plaintiffs’ lawyer email, too
CLW readers recall UCLA Law School’s claim that, while it produced a January 19 – 22, 2018 email thread between Prof. Ann Carlson and “climate nuisance” plaintiffs’ law firm Sher Edling — a ‘pro bono’ client as part of her UCLA work — it could not produce an important attachment.
Context suggests that this attachment was a slide show laying out Vic Sher’s litigation in a closed-door but nonetheless not privileged presentation for allies. This is of great public interest given the policy implications of this campaign, and its use of pubic institutions (from public universities to attorneys general offices).
It is also of public interest given our knowledge of how expensive such campaigns are to develop, even with professors pulling in a half million dollars a year at a public university donating that position to the task. This of course is why such firms (like Sher Edling, in this case) receive contingency fee contracts promising large percentages of the returns upon settlement, or victory in court; it appears that they also can be underwritten by private equity/‘investors’ (when there is a better prospect of a return than the present cases).
Sher Edling shows that these firms can also be underwritten by private foundations.
UCLA failed to produce the January 19, 2018 emailed slideshow in litigation over February and May 2018 public records act requests. The reason UCLA gave for this failure was that Prof. Carlson had deleted the attachment. Friday night, UCLA responded to a separate request specifically seeking that email and its attachment, saying now that it no longer has the email, either. Both records are gone — not from Prof. Carlson’s email, but they’ve been wiped from the system, completely.
So it seems the school is going to the mattresses to fight revelation of the contents of this slide show. Litigation — either GAO’s extant case on behalf of the Competitive Enterprise nstitute, or via a follow-on matter — will have to resolve how, e.g., a faculty member can delete an email/attachment from her account and wipe it off the University’s backup system, backend logs, etc. Or, it will inform the public what it would take for a faculty member and/or other employees to ensure that end was attained (and explain why the effort to wipe the organic email with the attachment from the system, while maintaining the thread, sans the presentation). Maybe, it will reveal that UCLA does not in fact back its system up. Or, that the backup failed that day. Or…