BP subpoenas researchers’ emails regarding oil spill work

Scientists warn against “unnecessary intrusions that stifle research.”

Read the whole story

 

[gmerrick]

In this case, concern about infringements on academic freedom extends beyond FOIA requests and areas of research that are targeted by motivated hackers.

Huh? What do hackers have to do with the BP oil subpoenas? Other than this is how the Climategate stuff started?

Instead of simply handing the info over, It should have been given to a judicially appointed 3rd party that can determine relevance and if relevant hand it over.

 

[baba264]

I'm quite shocked by what I'm reading here.

Considering that the scientist in question aren't being accused of any form of crime and weren't working for any kind of public institution, I somehow fail to see how and why they were compelled to reveal all their communications related to the subject.

I'm not familiar with the US Justice system, but I find this quite disturbing for the scientific community and yet another example of the power wielded by large compagnies in the US.

 

[invalidpath]

Even if they were working for a public institution, they shouldn't be required to hand over all unfinished documents, manuscripts, etc. Drafts are just that, drafts.... Only finished work should be released, that is what should be publicly scrutinized and peer reviewed by fellow experts in the field. If it fails peer review, the reasons will be noted by the reviewers and those issues will have to be addressed before publication...period.

This is horrific, these guys will be discredited, etc. for work that they never intended to release. Brainstorming, half-baked ideas, whimsical thoughts are all part of the beginnings of invention. Without a genesis period that goes from half-formed proto ideas to fully thought out, peer reviewable work we might as well go home and bake some cookies instead of do research.

 

[Boskone]

I don't see the problem. BP thinks the numbers in the reports are wrong, and wants to see all available data related to the case.

It's all legal and above-board. It's not like they're asking for unlimited access to the various researcher's email and hard drives.

It's perfectly valid to want to see an email saying something like "measured X gallons per second, assume Y for good measure".

 

[SergeiEsenin]

Our experience highlights that virtually all of scientists’ deliberative communications, including e-mails and attached documents, can be subject to legal proceedings without limitation.

Who in this day and age is too ignorant of the law and legal procedures to know that it's the case that once you're involved in litigation, this is how it works? Unless something is explicitly covered by attorney-client privilege or other recognized exclusion, it's subject to subpoena. Always has been, always will be. This is a failure of legal education on the part of these scientists, not a failure of the legal system. It's a feature, not a bug. If you don't like it, don't get involved in litigation.

Incomplete thoughts and half-finished documents attached to e-mails can be taken out of context and impugned by people who have a motive for discrediting the findings.

Again, this is just a feature of our adversarial legal system, not a flaw. It's supposed to work that way. Always has, always will. Openness and availability of materials subject to discovery are the norm, and anyone involved in litigation should be prepared for that. Either side is free to present that material according to any interpretation they wish, and the Court is free to accept or reject that interpretation. Why complain about the process? Educate yourself about it and be prepared for it; don't whine about it. It's worked well for centuries.

In addition to obscuring true scientific findings, this situation casts a chill over the scientific process.

If you choose to involve yourself in legal proceedings, either as a party or a potential witness, it's insipid to then complain about the natural and predictable results of involving yourself in that process. This is a failure of WHOI scientists and administrators to understand and prepare themselves for how the legal system works before they voluntarily involved themselves in this situation. They were ignorant of the law and legal procedure, nothing more nothing less. Unless they have something they're embarrassed about, other than their lack of legal education and preparedness, why are they complaining in the first place?

Expert scientific witnesses--not just paid shills, but respected professionals including medical examiners, forensics lab researchers, and others--involve themselves in legal proceedings all the time, and understand and prepare for the discovery process. WHOI are not usually involved in such proceedings, and were unprepared for them. Now they complain about a process which thousands of scientists involve themselves in all the time, without whining. Pfft.

 

[eljefeloco]

I'm quite shocked by what I'm reading here.

Considering that the scientist in question aren't being accused of any form of crime and weren't working for any kind of public institution, I somehow fail to see how and why they were compelled to reveal all their communications related to the subject.

I'm not familiar with the US Justice system, but I find this quite disturbing for the scientific community and yet another example of the power wielded by large compagnies in the US.

Exactly. You commit no crime yet get treated like a criminal by the company that hired you to create the data to begin with. They didn't like the data that WHOI came up with so they made the courts force all of their data away in the complete absence of anything related to criminal law.

Not a good precedent when it comes to science, especially since BP will quote-mine the hell out of whatever they got.

 

[Zak]

I'm not familiar with the US Justice system

Oh, it's quite simple really: the one with more money and better lawyers wins.

 

[pappypappy]

It would be good to have a lawyer answer how (were there any 'conspiracy', which I have no belief that there was here) this would not amount to demanding self-incriminiation?

 

[spirald]

So BP will also be providing all related e-mails, notes, and manuscript drafts—specifically “…any transmission or exchange of any information, whether orally or in writing, including without limitation any conversation or discussion…” applicable to their response to the spill?

Why does it seem like what's good for the goose will quite probably not end up being available to the gander?

 

[SergeiEsenin]

It would be good to have a lawyer answer how (were there any 'conspiracy', which I have no belief that there was here) this would not amount to demanding self-incriminiation?

IANAL, but unless they've done something illegal, WHOI cannot invoke their right against self-incrimination. If they have done something illegal, then they can invoke that right. So, why would you think they've done anything illegal?

 

[ScottJohnson]

Our experience highlights that virtually all of scientists’ deliberative communications, including e-mails and attached documents, can be subject to legal proceedings without limitation.

Who in this day and age is too ignorant of the law and legal procedures to know that it's the case that once you're involved in litigation, this is how it works? Unless something is explicitly covered by attorney-client privilege or other recognized exclusion, it's subject to subpoena. Always has been, always will be. This is a failure of legal education on the part of these scientists, not a failure of the legal system. It's a feature, not a bug. If you don't like it, don't get involved in litigation.

Incomplete thoughts and half-finished documents attached to e-mails can be taken out of context and impugned by people who have a motive for discrediting the findings.

Again, this is just a feature of our adversarial legal system, not a flaw. It's supposed to work that way. Always has, always will. Openness and availability of materials subject to discovery are the norm, and anyone involved in litigation should be prepared for that. Either side is free to present that material according to any interpretation they wish, and the Court is free to accept or reject that interpretation. Why complain about the process? Educate yourself about it and be prepared for it; don't whine about it. It's worked well for centuries.

In addition to obscuring true scientific findings, this situation casts a chill over the scientific process.

If you choose to involve yourself in legal proceedings, either as a party or a potential witness, it's insipid to then complain about the natural and predictable results of involving yourself in that process. This is a failure of WHOI scientists and administrators to understand and prepare themselves for how the legal system works before they voluntarily involved themselves in this situation. They were ignorant of the law and legal procedure, nothing more nothing less. Unless they have something they're embarrassed about, other than their lack of legal education and preparedness, why are they complaining in the first place?

Expert scientific witnesses--not just paid shills, but respected professionals including medical examiners, forensics lab researchers, and others--involve themselves in legal proceedings all the time, and understand and prepare for the discovery process. WHOI are not usually involved in such proceedings, and were unprepared for them. Now they complain about a process which thousands of scientists involve themselves in all the time, without whining. Pfft.

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

 

[bsharp]

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

I thought it was obvious. They should add a disclaimer in small print to the end of all email and write/print on paper with the same disclaimer at the bottom of each page.

"DISCLAIMER: The information contained in this e-mail and any attachments to it may be legally privileged and include confidential information intended only for the recipient(s) identified above. If you are not one of those intended recipients, you are hereby notified that any dissemination, distribution or copying of this e-mail or its attachments is strictly prohibited. If you have received this e-mail in error, please notify the sender of that fact by return e-mail and permanently delete the e-mail and any attachments to it immediately. Please do not retain, copy or use this e-mail or its attachments for any purpose, nor disclose all or any part of its contents to any other person."

 

[Anachronisms]

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

The alternative is what? That people getting punished based on a number don't get to see how that number was determined? BP has every right to know exactly how they reached their result, every step and misstep, not just the polished final report.

 

[DCStone]

It would be good to have a lawyer answer how (were there any 'conspiracy', which I have no belief that there was here) this would not amount to demanding self-incriminiation?

IANAL, but unless they've done something illegal, WHOI cannot invoke their right against self-incrimination. If they have done something illegal, then they can invoke that right. So, why would you think they've done anything illegal?

You both seem to be missing the fact that the WHOI scientists aren't, at this point, defendants in this story. From the main article:

As part of the ongoing lawsuit brought by the US government, BP’s financial liability hinges partially (but crucially) on that number

(emphasis added)

 

[ScottJohnson]

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

The alternative is what? That people getting punished based on a number don't get to see how that number was determined? BP has every right to know exactly how they reached their result, every step and misstep, not just the polished final report.

This has come up twice now, so please note:
"In December, BP subpoenaed the WHOI researchers for the raw data and methods behind their estimate... After the researchers complied, BP further demanded any related e-mails, notes, and manuscript drafts..."

This will be clear to those who read the linked press release or Boston Globe article.

 

[mattclary]

If you choose to involve yourself in legal proceedings, either as a party or a potential witness, it's insipid to then complain about the natural and predictable results of involving yourself in that process. This is a failure of WHOI scientists and administrators to understand and prepare themselves for how the legal system works before they voluntarily involved themselves in this situation. They were ignorant of the law and legal procedure, nothing more nothing less. Unless they have something they're embarrassed about, other than their lack of legal education and preparedness, why are they complaining in the first place?

Expert scientific witnesses--not just paid shills, but respected professionals including medical examiners, forensics lab researchers, and others--involve themselves in legal proceedings all the time, and understand and prepare for the discovery process. WHOI are not usually involved in such proceedings, and were unprepared for them. Now they complain about a process which thousands of scientists involve themselves in all the time, without whining. Pfft.

This.

 

[exploder]

I would have no trouble with this at all, so long as BP's arguments in court are strictly limited to debate of the final published works, and cannot reference the tentative materials. That way, no smears based on misconstruing work-in-progress notes. If they want to debate the final results, BP can do their own damned work. If the notes help them develop their own argument, fine, but they will have to explain and justify their own results on their own terms.

But sadly we all know it would be unlikely to be done that way. We're firmly back in the territory of whoever has the most money and most political clout wins.

 

[SergeiEsenin]

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'm saying that what they are misinterpreting as some sort of "attack," is merely how our legal system works, has always worked, and hopefully always will work. We have a legal system which is both adversarial and which is based on openness and availability, via a well-documented process called "discovery," of all knowledge and materials pertaining to the case except those which are covered by well-documented exceptions. This system is very old within the English-speaking world and works very well. There are other systems, such as the "inquisitorial" systems used in places like Italy, which are not as adversarial and which are not as open--subject to secret knowledge and materials not known equally to both sides--and I think history proves that they aren't as good and don't respect the rights of the accused as much. Which you may not care about, until you're the one being sued or being falsely accused of a crime, and thenn you'll be very glad for it indeed.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

If they were honest in their assessments and fair and accurate in their scientific deliberations, then probably nothing at all. Except, they seem to have an intellectual property concern, so perhaps they should have avoided mentioning excess details pertaining to inner workings and functions of proprietary processes and technology in their deliberative communications. Other than that, if they were honest and fair, why should they have done anything differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates.

Yes, and this has always been the case, and it's a feature not a bug. Our legal system depends on openness and availability of all relevant knowledge and materials to both sides in any proceeding. It's supposed to work that way. It works well that way. If WHOI can't educate themselves and play by the rules everyone else has played by and understood for decades to centuries, then they shouldn't so willingly involve themselves in activities relating to litigation. Science is science, the law is the law, and they volunteered to work at a point where they knew those things would intersect. Now they're entirely out of their depth and understanding when they complain about how the legal system works. It works that way for a reason; either get used to it, or avoid getting involved with it.

Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

Perhaps, or perhaps not. I can see many potential arguments relating to that. It is, however, conducive to protecting the rights of parties to litigation and working towards the best legal outcome, which is why it works that way and what it's meant to do.

 

[SvnLyrBrto]

I'm quite shocked by what I'm reading here.

Considering that the scientist in question aren't being accused of any form of crime and weren't working for any kind of public institution, I somehow fail to see how and why they were compelled to reveal all their communications related to the subject.

I'm not familiar with the US Justice system, but I find this quite disturbing for the scientific community and yet another example of the power wielded by large compagnies in the US.

The bottom line is pretty simple.

BP doesn't like what Woods Hole has to say. And they want to intimidate the next lot out of saying anything similarly negative about them. So they're going to make an example out of Woods Hole by abusing the courts to harass them. They have enough money to make it happen and our "justice" system is corrupt enough to let BP get away with it.

 

[potato44819]

If you choose to involve yourself in legal proceedings, either as a party or a potential witness, it's insipid to then complain about the natural and predictable results of involving yourself in that process. This is a failure of WHOI scientists and administrators to understand and prepare themselves for how the legal system works before they voluntarily involved themselves in this situation. They were ignorant of the law and legal procedure, nothing more nothing less. Unless they have something they're embarrassed about, other than their lack of legal education and preparedness, why are they complaining in the first place?

Expert scientific witnesses--not just paid shills, but respected professionals including medical examiners, forensics lab researchers, and others--involve themselves in legal proceedings all the time, and understand and prepare for the discovery process. WHOI are not usually involved in such proceedings, and were unprepared for them. Now they complain about a process which thousands of scientists involve themselves in all the time, without whining. Pfft.

This.

++

 

[ads2]

I don't see the problem. BP thinks the numbers in the reports are wrong, and wants to see all available data related to the case.

Read the letter. They already got all the data, and all the code, and all the analysis notes in addition to the published results.

It's all legal and above-board. It's not like they're asking for unlimited access to the various researcher's email and hard drives.

Essentially, yes they do.

 

[SergeiEsenin]

IANAL, but unless they've done something illegal, WHOI cannot invoke their right against self-incrimination. If they have done something illegal, then they can invoke that right. So, why would you think they've done anything illegal?

You both seem to be missing the fact that the WHOI scientists aren't, at this point, defendants in this story

I'm not missing that fact, it's just entirely irrelevant. This sort of discovery applies to expert witnesses and similar parties, not just defendants. WHOI chose to involve themselves in this matter, apparently while being ignorant of how the legal system works, and is now complaining about the legal system for doing something which is routine. Their ignorance is at fault, not the legal system, which has worked well this way for decades to centuries.

 

[SvnLyrBrto]

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

The smart money would be on them simply refusing to help next time there is a similar crisis; unless the federal government passes an equivalent to the "good samaritan" laws that many states have to protect people who render aid.

 

[Anachronisms]

So you say they should have realized they would be legally defenseless against this sort of attack before agreeing to provide help in a crisis.

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

The alternative is what? That people getting punished based on a number don't get to see how that number was determined? BP has every right to know exactly how they reached their result, every step and misstep, not just the polished final report.

This has come up twice now, so please note:
"In December, BP subpoenaed the WHOI researchers for the raw data and methods behind their estimate... After the researchers complied, BP further demanded any related e-mails, notes, and manuscript drafts..."

This will be clear to those who read the linked press release or Boston Globe article.

I did read both, no need to be snippy. The only thing that is clear is that WHOI didn't believe BP needed the emails "to analyze and confirm or refute the findings" and BP argued they did. So they went to a judge and the judge sided with BP.

If there is even a chance that there is something exculpatory in those emails, BP absolutely has a right to look for it - the fact that they may use non-relevant information to confuse a jury shouldn't mean they can't look for evidence to defend themselves. I very specifically mentioned missteps in my post because emails/manuscripts would show methods/models they tried and rejected for some reason. Maybe they rejected a method erroneously. It's a lot easier to edit someone else's work than to come up with it on your own. Not to mention WHOI has some technical expertise that BP lacks, or they wouldn't have become involved in the first place!

 

[Petronivs]

So BP will also be providing all related e-mails, notes, and manuscript drafts—specifically “…any transmission or exchange of any information, whether orally or in writing, including without limitation any conversation or discussion…” applicable to their response to the spill?

I'm guessing they already have, or else there wouldn't have been incidents like this: http://meincmagazine.com/tech-policy/2012 ... -messages/

 

[jdale]

If they were honest in their assessments and fair and accurate in their scientific deliberations, then probably nothing at all. Except, they seem to have an intellectual property concern, so perhaps they should have avoided mentioning excess details pertaining to inner workings and functions of proprietary processes and technology in their deliberative communications. Other than that, if they were honest and fair, why should they have done anything differently?

I disagree. Even if they were fair and accurate in reaching their conclusions, it is entirely possible that early drafts and discussions were not entirely accurate. That's part of why there are multiple drafts both of papers and of the conclusions they present, to catch and correct errors.

It seems totally reasonable to me that they should present not just their conclusions but also the raw data. A precedent which has been set in the past and which they complied with here. Other experts can then examine the raw data and, if appropriate, question the conclusions on that basis.

It does not seem reasonable to essentially subject them to post-hoc monitoring, when the aim is basically a fishing expedition (no evidence suggests any wrong-doing) in hopes of catching something that can be used for character assassination in hopes of undermining their scientific conclusions.

 

[Schpyder]

WHOI chose to involve themselves in this matter, apparently while being ignorant of how the legal system works, and is now complaining about the legal system for doing something which is routine.

No offense, but WHOI didn't choose to involve themselves in the legal dispute between the government and BP. Perhaps they should have seen that as an outcome of their involvement, but the fact of the matter is that the measurements were done in May of 2010, and the government didn't bring suit against BP until that December. The report was received for review in January 2011, so what were they supposed to do, just stop all work on it as soon as the suit was brought?

 

[wretchu]

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

I thought it was obvious. They should add a disclaimer in small print to the end of all email and write/print on paper with the same disclaimer at the bottom of each page.

"DISCLAIMER: The information contained in this e-mail and any attachments to it may be legally privileged and include confidential information intended only for the recipient(s) identified above. If you are not one of those intended recipients, you are hereby notified that any dissemination, distribution or copying of this e-mail or its attachments is strictly prohibited. If you have received this e-mail in error, please notify the sender of that fact by return e-mail and permanently delete the e-mail and any attachments to it immediately. Please do not retain, copy or use this e-mail or its attachments for any purpose, nor disclose all or any part of its contents to any other person."

IIRC, such a disclaimer is worthless legally. You cannot force a binding contract on a person just by attaching a signature to an e-mail. Unless the recipient explicitly agrees to such a contract, it's just fluff. You can't make someone agree to an NDA just by sending them an e-mail.

 

[bfstev]

It should have been regected as overly broad, or subject to judicial review, but aparently WHOI's lawyers really suck

 

[lvlln]

WHOI chose to involve themselves in this matter, apparently while being ignorant of how the legal system works, and is now complaining about the legal system for doing something which is routine.

No offense, but WHOI didn't choose to involve themselves in the legal dispute between the government and BP. Perhaps they should have seen that as an outcome of their involvement, but the fact of the matter is that the measurements were done in May of 2010, and the government didn't bring suit against BP until that December. The report was received for review in January 2011, so what were they supposed to do, just stop all work on it as soon as the suit was brought?

++

These guys are scientists. They did scientific research with no reasonable expectation that it would be used for legal matters. They did NOT voluntarily inject themselves into the legal proceedings.

If helping the government and private entities in emergency situations can lead to legal invasion of privacy down the road, this could have some chilling effects.

 

[AnonymousRich]

I'll bite. Let's rewind to day one and say they realized this. What would they do differently?

Their point is that the "scientific deliberative process" is inherently mine-able for smears or quotes that portray uncertainty, and that these may play in the court of law or public opinion with those who don't understand how science operates. Having that hanging over researchers' heads, they say, is not conducive to scientific progress or volunteering for public service.

I thought it was obvious. They should add a disclaimer in small print to the end of all email and write/print on paper with the same disclaimer at the bottom of each page.

"DISCLAIMER: The information contained in this e-mail and any attachments to it may be legally privileged and include confidential information intended only for the recipient(s) identified above. If you are not one of those intended recipients, you are hereby notified that any dissemination, distribution or copying of this e-mail or its attachments is strictly prohibited. If you have received this e-mail in error, please notify the sender of that fact by return e-mail and permanently delete the e-mail and any attachments to it immediately. Please do not retain, copy or use this e-mail or its attachments for any purpose, nor disclose all or any part of its contents to any other person."

IIRC, such a disclaimer is worthless legally. You cannot force a binding contract on a person just by attaching a signature to an e-mail.

So you're saying that it's not like with a software shrink wrapped license?

 

[hpsgrad]

I'm quite shocked by what I'm reading here.

Considering that the scientist in question aren't being accused of any form of crime and weren't working for any kind of public institution, I somehow fail to see how and why they were compelled to reveal all their communications related to the subject.

I'm not familiar with the US Justice system, but I find this quite disturbing for the scientific community and yet another example of the power wielded by large compagnies in the US.

The bottom line is pretty simple.

BP doesn't like what Woods Hole has to say. And they want to intimidate the next lot out of saying anything similarly negative about them. So they're going to make an example out of Woods Hole by abusing the courts to harass them. They have enough money to make it happen and our "justice" system is corrupt enough to let BP get away with it.

I actually disagree about your analysis of BP's motives and the corruption of the justice system. OTOH, I also think that those are utterly irrelevant to your conclusion. The fact that entities exist who have enough money and influence available to wield the legal system as a strategic tool to dissuade people from opposing them is a problem. It's something that could be pinned on the legal system or on other things, but whatever the causes, the disincentive to do anything at all in the public interest exists, and the disincentive is essentially infinite.

If you do research on publicly-important issues, you expose yourself to legal action which can take up all of your time and an essentially unlimited amount of money, for spans of time measured in decades. No rational person will accept that exposure, and the only rational responses are to either cease doing research on subjects important to our public policy, or to mitigate the risk by allying yourself with an organization powerful enough to protect you. As has been made obvious so far, the only organizations this powerful are multi-national corporations or governments.

 

[exploder]

++

These guys are scientists. They did scientific research with no reasonable expectation that it would be used for legal matters. They did NOT voluntarily inject themselves into the legal proceedings.

If helping the government and private entities in emergency situations can lead to legal invasion of privacy down the road, this could have some chilling effects.

Exactly. Expectation that every move can lead to involved litigation. It's a huge potential burden, that could vastly increase costs and complexity and reduce efficiency of the work, which is NOT what you want, especially when there's an emergency in progress. I can see the counterpoint, there is always the potential for litigation in every action. But we're talking about respecting accepted procedural norms here. If you're a forensics expert, everything you do is designed up front for presentation in court, it's already in the budget. If you're a working ocean researcher, you're probably not thinking like that in daily practice, it would be a wasted effort 99% of the time. And yes, there is then a real chill factor when people who normally manage to ignore such burdens are faced with the looming specter of such deep inspection, it's bound to scare the pants off them.

I know I get leery even considering certain jobs in my line of work, where I normally don't have to be super careful in order to do a great job. When I know the work could well end up in a bloody court room, warts and all, I start wondering if it's worth the stress. Yeah, I know that any/all of my work could end up in court, but that's normally far from reality, and our industry is priced according to that usual lack of extreme accountability. We just don't budget to double the paperwork on every job and always be maximum formal with every last breath.

But for all that, you can certainly wonder what the hell WHOI thought they were getting into, in a scenario like that. If they weren't expecting some raised eyebrows down the road, I think those scientists need to pay a little more attention to the current state of world politics.

 

[jcool]

Reddy and Camilli write, “Our experience highlights that virtually all of scientists’ deliberative communications, including e-mails and attached documents, can be subject to legal proceedings without limitation."

Yet another ground breaking story from the pages of the medical journal, 'Duh'.

 

[UltimateLemon]

I'm not familiar with the US Justice system

Oh, it's quite simple really: the one with more money and better lawyers wins.

After apprximately a decade of appeals.

 

[Discoceris]

Who in this day and age is too ignorant of the law and legal procedures to know that it's the case that once you're involved in litigation, this is how it works?

And I doubt you do. Are you a licensed practicing attorney or one of those "backseat drivers"?

 

[Gary Patterson]

The future:
Company + government: "Oh no! We need to analyse this new disaster to understand what's happening and how bad it really is!"

Scientific community: "Uh uh, not touching that with a bargepole. We've got expert knowledge and could help you greatly, but we don't want to get mired in future legal cases that we've neither the inclination nor the resources to provide for that. Good luck though."

The only scientists who will help will be ones paid by either the government or the companies involved.

 

[SergeiEsenin]

Who in this day and age is too ignorant of the law and legal procedures to know that it's the case that once you're involved in litigation, this is how it works?

And I doubt you do. Are you a licensed practicing attorney or one of those "backseat drivers"?

I did state clearly in one of my posts that IANAL--I Am Not A Lawyer. And yet, even as a non-attorney whose closest moments to practicing law were in moot court competitions (and a few turns at the defendant's table and in the jury room), I know the basics of how the discovery/subpoena process works and the basics regarding what is discoverable.

http://en.wikipedia.org/wiki/Discovery_%28law%29
http://en.wikipedia.org/wiki/Subpoena_duces_tecum

Every educated American should know the basics; as with other fundamentals of our legal system, these are easy enough to educate oneself about, and in fact anyone who pays attention at a competent government class at a reputable liberal arts college should know the general outlines. Or do you think Americans should be ignorant about how their legal system works, unless they happen to be attorneys? Personally, I think it's every citizens' responsibility to learn these things if he chooses to engage in civic discourse and processes at all.

And more importantly, does the fact that you're not an English professor mean that you're just a "backseat driver" and we shouldn't bother reading your posts because obviously anything you attempt to say in English will be completely incorrect gibberish? Oh, so that's not how it works after all.

 

[Postulator]

I'm puzzled. A drug company can run half-a-dozen trials for a drug, and only publish the results of any favourable studies. The public doesn't even necessarily know those studies exist, that show how terrible the new drug is in certain circumstances. At the other end of the scale, we have a demand for "all communications".

I am totally in favour of science being open. The public is being ripped off by not learning about scientific failures, proofs that don't and experiments that get shelved because the results don't match what was wanted. We need to see not just the published paper, but the data that went into that paper and how the scientist(s) moved from data to conclusion (models, hypotheses etc.). But that's not the same as needing to know about whether the scientist threw a wild conjecture over to a colleague that the recipient immediately shot down in flames - which is the kind of thing BP appears to be fishing for. There's a middle ground that needs to apply to all science, which seeks openness and replicability.