Discovery Institute Wins Minor Victory

OUR last post on this topic was The Goal of the “Darwin’s Dilemma” Lawsuit. The next few indented paragraphs provide background information, which most of you can skip:

A lawsuit filed by the American Freedom Alliance (AFA) charges that the California Science Center (CSC) violated both the First Amendment and a contract to rent its theater when it canceled a screening of Darwin’s Dilemma. The AFA is an outfit promoting the controversy about evolution — in the interest of what they call “academic freedom.” The film they wanted to show is being heavily hyped by the Discoveroids. The theater owner getting sued is the California Science Center, which canceled a contract for showing the film, alleging that a Discoveroid press release violated a contract clause requiring their prior approval of all promotional materials.

The AFA alleges that the contract violation was a “false pretext” for cancellation of the screening contract. It’s really discrimination and a violation of the First Amendment, thus a violation of the AFA’s constitutional rights. The National Center for Science Education has all the court pleadings available online. See: American Freedom Alliance v. California Science Center et al.

Today’s big news in this litigation comes from the blog of the neo-theocrats at the Discovery Institute’s Center for Science and Culture (a/k/a the Discoveroids). Their article is titled: California Science Center to Pay Attorneys’ Fees and Settle Open Records Lawsuit by Intelligent Design Group. Here are some excerpts, with bold font added by us:

The California Science Center (CSC) has agreed to settle a lawsuit with the pro-intelligent design Discovery Institute and release records that it previously sought to conceal regarding its cancellation of the screening of a pro-intelligent design film last year.

The suit is settled? Really? Let’s read on:

“After months of stonewalling by the Science Center, this is a huge victory for the public’s right to know what their government is doing, especially when the government engages in illegal censorship and viewpoint discrimination,” said Dr. John West, Associate Director of Discovery Institute’s Center for Science and Culture.

Westie says it’s a “huge victory.” Okay, what happened? We continue:

The Science Center continues to “deny any and all liability relating to the claims,” according to the settlement agreement. However, it agreed to pay Discovery Institute’s legal fees and to surrender more than a thousand pages of documents it had been withholding since they were requested under the California Public Records Act last year.

Cutting through all the spin about a huge victory, here’s how it looks to us: The Science Center continues to deny all liability, so the case isn’t settled. All that happened here is that the creationists won pre-trial motion over the production of some documents. That’s what has them all excited.

[CORRECTION: We didn’t realize that the Discoveroids had a separate Records Act suit pending. That’s what seems to be involved here. See: Discovery Institute v. California Science Center at the NCSE website.]

Pre-trial discovery is usually a routine matter in civil litigation. One side sends out interrogatories, the other side answers. One side schedules a deposition, the other side has the witness show up. One side requests documents, the other side produces them. If there’s a problem, the parties work it out. There are rules that govern the process, but most competent, reputable litigators do what they’re supposed to do without court supervision. Litigators tend to know each other, and they know that six months from now in another case their roles may be reversed. They may then be seeking the same kind of documents that the other side is now requesting from them. No one wants to be remembered as an uncooperative jackass.

But sometimes one side is believed to be over-reaching during discovery by seeking irrelevant or privileged material. That’s when an objection gets filed. Even then, most such issues are resolved by the lawyers. But if that can’t be done, the court will decide the matter. Judges don’t like to be bothered with discovery issues, so as a sanction, the winning side can be awarded legal fees for the time consumed by the procedural dispute. That way, uncooperative (or over-reaching) lawyers learn to be more cooperative the next time.

And that, dear reader, is what seems to have happened here. We don’t know the thinking behind the refusal to produce documents. Maybe it was stubbornness, or maybe it was a high-minded issue of principle that will ultimately get resolved on appeal. Anyway, at this point the creationists won a procedural motion, the documents will be produced, and the case will continue. Whoop-de-doo! One last excerpt:

“It was an obvious shell game,” explained Discovery Institute staff attorney Casey Luskin. “The California Science Center is a state agency funded by California taxpayers. The public has a right to expect transparency, not secrecy, in government institutions. The Science Center’s attempt to evade public accountability for its actions has been disgraceful.

When Casey describes someone’s behavior as “disgraceful,” your Curmudgeon immediately reaches the opposite opinion.

Aha, here’s yet another aspect of this minor discovery motion. In the pages of WorldNetDaily, a wretched publication, we read Case over criticism of Darwin settled.

Case settled! BWAHAHAHAHAHAHAHAHA! Here’s a small part of what WND says:

The Seattle-based Discovery Institute today it is settling a legal action against the science center in exchange for having the center pay its legal bills and provide literally hundreds of pages of documents it had sought.

[…]

While the science center continues to “deny any and all liability relating to the claims,” it has agreed to pay Discovery Institute’s legal fees and “surrender more than a thousand pages of documents it had been withholding since they were requested under the California Public Records Act,” according to Discovery Institute’s statement.

As we said, the creationists have won a procedural motion about document production. Strike up the band, pour out the booze, light the fireworks! We can’t wait for their next big victory. What will that be about? Maybe: Creationist learns to tie his shoes!

[CORRECTION (repeated): We didn’t realize that the Discoveroids had a separate Records Act suit pending. That’s what seems to be involved here. See: Discovery Institute v. California Science Center at the NCSE website.]

Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.

add to del.icio.usAdd to Blinkslistadd to furlDigg itadd to ma.gnoliaStumble It!add to simpyseed the vineTailRankpost to facebook

. AddThis Social Bookmark Button . Permalink for this article

27 responses to “Discovery Institute Wins Minor Victory

  1. I haven’t seen anything about this latest development other than what is coming from the DI-side. Does anyone have an independent source of information?

  2. Nothing yet, TomS. I’m just reading between the lines.

  3. It appears that the Disco Tute’s lawsuit was a separate case from the still pending lawsuit filed by the American Freedom Alliance.

    So, it seems that although the AFA lawsuit is still pending, the Disco Tute’s lawsuit has been settled.

    Please correct me if I’m wrong on this.

  4. waldteufel says: “Please correct me if I’m wrong on this.”

    I don’t know. I checked at the NCSE website where all the pleadings to the case are archived. As far as I know there’s only one case, which is why I assume this is just a document production issue. I’ve never heard of an entire lawsuit just to get papers. That’s usually part of the discovery process that goes on within a lawsuit. I could be all wrong about this, but the two-suit scenario makes no sense.

    If I’ve goofed up, I’ll hear about it soon enough. I’ve been wrong before.

  5. Does anyone have an independent source of information?

    I went to the California Science Center website but its all science content. Its completely different from DI’s website. Damn scientsts, they have no sense of spin at all. 🙂

  6. There is indeed a separate case associated with this document turnover, BS123905.

  7. rubble says: “There is indeed a separate case …”

    Whoa! I’ve goofed up big time.

  8. I think the DI sued using the Freedom of Information Act.

    What I find funny is that the DI has disavowed any connection to either the showing of the film or the original suit, however here they are meddling in things and it was their stupid press release that caused the whole mess in the first place.

  9. Doc Bill says:

    I think the DI sued using the Freedom of Information Act.

    The state version: The California Public Records Act. Still, I can’t figure out why this separate case was needed. It doesn’t matter, really. Now that they got the records, I guess this proves ID is good science.

  10. Anybody can ask a public institution for documents and if they tell you to FO you can sue.

    The DI is not a party to the AFA suit. They’re just kibitzers. Agitators. Doing what the do best, create manufactroversies.

  11. Somehow, they’re going to count this as a “publication supportive of intelligent design.”

  12. I poked around the web for Peter Lepiscopo. It turns out that he leads the San Diego office of the Pacific Justice Institute, a legal organization which apparently specializes in pursuing alleged violations of religious freedom. Lepiscopo has also aided the Thomas More Law Center in at least one case; recall that the TMLC defended the Dover area school board concerning its ID policy. In all fairness, Lepiscopo does handle other kinds of cases, but the coincidence seems far from happenstance.

    The document lawsuit smells a lot like the Sternberg/Smithsonian controversy, which followed in the wake of publication of Meyer’s notoriously selective review of the Cambrian fossil scientific literature. Recall that Mark Souder filed a partisan report of that controversy, focusing attention to many e-mails involving Smithsonian staff. Also recall how the Discovery Institute relied heavily upon the, uh, coverage by David Klingenhoffer inits review of the Souder report.

    IMO we’re talking about the DI trying to tap a vein for quote-mining, to further its political goals. The DI may actually prefer to see the AFA lawsuit judged against them, as further “proof” of ID being “expelled” from public view.

  13. rubble says:

    IMO we’re talking about the DI trying to tap a vein for quote-mining, to further its political goals.

    Agreed. They’d love to find something that says: “These creationists are bonkers and they’ve got to be stopped!” Something like that probably exists. On the other hand, I wonder what the Discoveroids’ inter-office email looks like.

  14. In my flurry, I neglected to mention that Lepiscopo was the DI’s attorney in this particular document lawsuit. I hope that this mention connects the dots.

  15. rubble says: “I hope that this mention connects the dots.”

    In creationist efforts, the dots are always connected. Birds of a feather …

  16. Just checked the court’s online docket for this case — still no indication that this has been settled. Last document filed was: “03/09/2010 Answer to Petition Filed by Attorney for Deft/Respnt”, next scheduled event is “08/23/2010 at 09:30 am in department 85 at 111 North Hill Street, Los Angeles, CA 90012 Hearing–Writ of Mandate”.

  17. Hrafn says:

    Just checked the court’s online docket for this case — still no indication that this has been settled.

    It may take another few days to show up there. I’m guessing that the settlement was arrived at during a conference that wasn’t in court. The parties have to draft up what they’ve agreed to and get it signed by all the necessary people. It’s probably some kind of joint stipulation. Then they’ll probably send it to the judge with an order to be signed. The judge may not get to it immediately. After that’s done it’ll get sent to the clerk’s office and docketed.

  18. Following up on the main (AFA v CSC) case, NCSE has the more recent filings up on their website (at http://ncse.com/creationism/legal/american-freedom-alliance-v-california-science-center-et-al).

    http://ncse.com/webfm_send/1355 gives copies of a set of emails that demonstrates that the AFA coordinated with the DI in the latter’s unauthorised publicity that violated the AFA’s contract with the CSC. Given this (but remembering that IANAL), I don’t see how the AFA lawsuit against CSC for cancelling the contract can prevail.

  19. Curmudgeon:

    Documents appear to be docketed when they are filed. Afterwards, when they are accepted/rejected by the court a ‘minute order’ is docketed stating the decision.

  20. I can see why the CSC might not think it worth the bother of defending the case (all the material would be discoverable in AFA v. CSC in any case), but can see no reason why they would settle on such unfavorable terms (they pay all the costs) rather than simply mooting the lawsuit by unilaterally handing over the material.

  21. Hrafn says: “Documents appear to be docketed when they are filed.”

    Yes, but it’s possible that the settlement papers and an order will go right to the judge, and that stuff won’t be filed after he signs the order. I don’t know what the local procedures are.

  22. Hrafn says:

    … no reason why they would settle on such unfavorable terms (they pay all the costs) rather than simply mooting the lawsuit by unilaterally handing over the material.

    Handing over the material wouldn’t prevent a subsequent motion for fees. It might look like an admission that they had no defense whatsoever. By working it out in a settlement, they avoided the risks of having the court set the fees under unfavorable circumstances.

  23. “Yes, but it’s possible that the settlement papers and an order will go right to the judge, and that stuff won’t be filed after he signs the order.”

    Uh, NO! Documents are filed, then they are seen by the judge. Any communication with the judge that isn’t formally filed, or part of a court hearing, would be an improper ex parte communication.

  24. A court cannot set more “unfavorable circumstances” than CSC paying all plaintiff fees and court costs. That is the worst case. Essentially, the settlement is giving the DI everything they are asking for other than an outright admission/finding of wrongdoing (which I suspect they couldn’t get after the case was mooted in any case).

    And giving the DI all the material unilaterally is no more “an admission that they had no defense whatsoever” than a settlement that gives them everything would be.

  25. Hrafn says:

    Documents are filed, then they are seen by the judge. Any communication with the judge that isn’t formally filed, or part of a court hearing, would be an improper ex parte communication.

    Well, I don’t know the local procedures, but it would seem that a joint stipulation, by definition, wouldn’t be ex parte.

  26. Hrafn, by working out a settlement, the defendant must have had some input into the amount of fees they were paying. At minimum, they avoided any further fees that would have been run up if they hadn’t settled when they did and the fees had to be determined in a contested hearing.

  27. Gabriel Hanna

    When Casey describes someone’s behavior as “disgraceful,” your Curmudgeon immediately reaches the opposite opinion.

    Every moral compass needs a butt end.