Three new Plaintiff's briefs were filed last week with the DC Superior Court in climate scientist Michael Mann's defamation lawsuit against the National Review and the Competitive Enterprise Institute. "In view of the defendants’ initial public bravado regarding Dr. Mann, their latest attempt to avoid a trial on this matter rings hollow. ... Faced now with the prospect of financial liability for their gleeful tirades, defendants do not want discovery, as it would involve discovery into their own conduct. And they certainly do not want to face a jury of their peers." Documents with full text below.
Earlier post and documents: DC Court affirms Michael Mann's right to proceed in defamation lawsuit against National Review and CEI (July 19)
(1) Challenging Defendants' joint motion to certify interlocutory appeal of the Court's July 19 order denying Defendants' motion to dismiss.
The brief begins as follows:
Plaintiff Michael E. Mann, Ph.D. (“Dr. Mann”) respectfully submits this Memorandum of Points and Authorities in Opposition to Defendants’ Joint Motion for Interlocutory Certification of the Court’s July 19, 2013 Orders Under D.C. Code § 11-712. For the reasons sets forth below, defendants’ motion should be denied.
In its two well-reasoned Orders of July 19, 2013 (the “Orders”), this Court denied the defendants’ motions to dismiss pursuant to the D.C. Anti-SLAPP Act and Rule 12(b)(6). Defendants now urge this Court to certify these Orders for interlocutory review because “the free speech protections of the D.C. Anti-SLAPP Act and the First Amendment are controlling questions that should be decided as a matter of law before the parties incur the expense of extensive discovery.” Defs.’ Joint Motion at 1-2.
In view of the defendants’ initial public bravado regarding Dr. Mann, their latest attempt to avoid a trial on this matter rings hollow--and basic principles of equity and fairness should estop them from now seeking an appeal. Defendants baited Dr. Mann to file this lawsuit. After he asked for a retraction and apology, the defendants told their readers that they would welcome a lawsuit because it would give them the opportunity to take discovery from Dr. Mann and his colleagues. They boasted they would hire dedicated staff to sift through that discovery and make it publicly available.1 They raised hundreds of thousands of dollars from their readers to pursue this discovery.2 They proclaimed they would “kick” Dr. Mann’s "legal heinie" in court.3
But now, after an impartial court has ruled that their attacks on Dr. Mann crossed the line, defendants are running for cover. Faced now with the prospect of financial liability for their gleeful tirades, defendants do not want discovery, as it would involve discovery into their own conduct. And they certainly do not want to face a jury of their peers. They are hoping to escape by cloaking their conduct in an arrogant interpretation of the First Amendment without the essential rigor of discovery into their knowing and reckless falsehoods. Plainly aware that such discovery will boomerang to their own backsides, the defendants are looking for an escape. But it is too late for that, and defendants’ hit and run tactics should not be countenanced. They asked for this lawsuit. They got it.
Remarkably, defendants’ motion now asks this Court to radically transform our interlocutory appeal provision from a narrow exception to the final judgment rule into a default vehicle for the immediate appeal of any decision implicating First Amendment rights and/or any decision that is deemed a “close case.” But defendants’ motion seriously misapprehends the types of cases that are appropriate for interlocutory review under § 11-721(d). ...
(Re interlocutory appeals, see here.)
(2) Challenging National Review and Competitive Enterprise Institute's motions to reconsider and dismiss
... Procedurally, defendants’ motion is improper. Substantively, the motion is flawed—and continues to reflect defendants’ failure to grasp the serious nature of their accusations against Dr. Mann. ...
III. CONCLUSION For all the foregoing reasons, and for the reasons sets forth in Dr. Mann’s opposition to the NRO Defendants’ initial motions to dismiss, these motions should be denied. Moreover, given the procedural and substantive flaws in their motion for reconsideration, and the fact that this Court has already disposed of the issues raised in the defendants’ motion to dismiss the Amended Complaint, these motions should be considered frivolous, and Dr. Mann should be awarded his fees and costs in responding to them.
A "Status Conference" on the case is scheduled for September 27. Stay tuned.