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Hearing to be held on UVa’s challenge to the OAG’s civil investigative demand this Friday, August 20, 2010, at 2:00 PM


                                                                                                                                                    
As regular readers know, this Friday, the Circuit Court for Albermarle County is set to hear argument on the University of Virginia’s motion to quash Attorney General Ken Cuccinelli’s civil investigative demand pursuant to Virginia Code 8.01-216.7(D).

The strategy of Mann and UVa has been simple since day one–they have continually sought to turn this into a battle about academic freedom, rather than a simple investigation into whether or not Mann made misrepresentations on several grant applications. 

As I have pointed out before, most lawyers representing targets of a CID take advantage of the opportunity to try to convince the government that there has been no wrongdoing, and that the client has nothing to hide.  

There are very good reasons for this, because this epic battle over this CID is much ado about nothing.  Even if a target “wins” and the CID gets set aside, they haven’t really won anything at all, because a CID is just a preliminary investigative tool.   

The manner in which Mann and UVa have attempted to address public opinion strikes me as somewhat interesting for several reasons .  The latest maneuver is to have the ACLU and others file amicus briefs in the Circuit Court for Albermarle County.  That’s right–an amicus brief in a Virginia Circuit Court.  

Of course, the ACLU doesn’t mind this one bit–they really have nothing better to do than file amicus briefs, and it will probably result in some donations for them–but I would be quite surprised if the Circuit Court allowed such a filing.  While United States District Courts will occasionally allow amicus filings, they do not always do so. 

(As an aside,the brief /files/116785-109034/AG_Mann_file_July_13.pdf”>brief filed by the Attorney General, I must say that a fine job was done.  The brief addresses things like–gasp–the burdens required for OAG to issue CIDs and so forth. 

Importantly, the brief also make some other important things clear, which, in my opinion, show which side is acting a little more rationally.  As one example, OAG mentions in its brief that it has offered UVa the opportunity to share any dispositive evidence that might warrant an end to the investigation. 

The brief details other attempts on the part of OAG to cooperate.  As another example, apparently a number of FOIA requests were made to UVa in 2009, asking for Mann’s emails.  The FOIA requests came up empty handed, and UVa said it did not have any emails of Dr. Mann’s at this late date. 

So, OAG asked the University at the outset if that was still a correct answer, because if so, both sides could just skip the issue of the emails.  Sounds like an attempt at cooperation if you ask me–but UVa never responded to this commonsense effort to narrow the issues. 

Certainly, emotions are running high on both sides of this issue.  Stay tuned for more. 

Zach            

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