First, let me say that this is not a political blog. This is a blog dealing with the Virginia Fraud Against Taxpayers Act and with litigation under the Federal False Claims Act in Virginia Courts.
Let me also say that I have no thoughts whatsoever on the issue of global warming (sometimes also called climate change, depending on whether you believe in it or not). I’m not a scientist, and I haven’t ever really given it any thought. In fact, I just learned about two weeks ago that there are two different names for this particular concept, depending on the side of the argument one believes.
Let me also disclose that I think the University of Virginia is a great University, and even if the allegations of research fraud are true, I will still hold UVa in high regard.
So, with all of those caveats out of the way, I am going to do my best to call ’em as I see ’em.
As most of you are aware, Attorney General Ken Cuccinelli used his powers under the VFATA to serve a civil investigative demand on the University of Virginia. He seeks records and other information related to work of a guy named Michael Mann (who is a leading scientist studying climate change a/k/a global warming) while he was a professor at UVa.
The CID was issued based on information from the “Climategate” incident last fall. Climategate involved thousands of emails from Dr. Mann being leaked to the public. The emails allegedly show Dr. Mann conspiring to rig research results; apparently, reasonable people can disagree about what is said in these emails.
It is also a fact that if Mann’s emails do in fact contain evidence of Mann falsifying research results, he has liability to the Commonwealth under the Virginia Fraud Against Taxpayers Act. This is so because he received hundreds of thousands of dollars worth of state and/or federal grants to continue his research while he was at UVa.
So far, so good. It is certainly true that a certain small segment of the scientific
community–regardless of political agendas and scientific beliefs, and regardless of race, color or creed–is willing to fudge a little on research results, or on grant applications, or very often on the two things together.
For instance, last week the Baltimore Sun announced that a Columbia, Maryland biotech company paid $934,000 to settle a false claims act lawsuit alleging that it falsified research results and omitted critical data from its research in order to get extended funding for a federal grant.
It is also true that recipients of a CID (like UVa) have nothing to gain and much to lose by pushing back on a CID. A CID is a preliminary tool used by the OAG to determine whether a violation of the law has occurred. The OAG issues these requests prior to filing a lawsuit–it is really an excellent opportunity for a defendant to convince the OAG that there has been no wrongdoing.
I think most defense lawyers will tell you that the opportunity to talk someone out of filing a lawsuit is a great opportunity, and one that does not come everyday and in every kind of case. It is not an opportunity to be wasted. Moreover, it also makes absolutely no sense to waste money by escalating a CID into full-scale litigation.
And here is the real kicker–even if a party fighting a CID wins and successfully quashes the CID, guess what? They may not have to respond to the CID, but they have spent thousands and thousands of dollars, and the winning prize is normally a freshly-filed lawsuit by the OAG. And then, as soon as discovery begins in the case, the OAG will ask for exactly the same materials they requested in the CID. At that point, the defendant will have no choice but to produce the material.
In Virginia state courts, the irony is even thicker, because litigants can serve interrogatories, document requests, deposition notices, and other discovery with the complaint itself.
So, all of this leads me to wonder if UVa isn’t playing politics. This is not the first time they have clashed with the OAG this year. While it is beyond the scope of this blog, earlier this year, General Cuccinelli irritated a great many people at UVa and other state universities by advising them as to the current state of discrimination law. He issued the same proclamation that five other AG’s have issued confirming that sexual orientation is not a protected class, but for some reason he really touched off a nerve.
Whatever the reason, we have ourselves a full-blown lawsuit down in Albemarle County now folks–stay tuned for more.