When two scientists from the Woods Hole Oceanographic Institute [WHOI] learned of the Deepwater Horizon disaster in the Gulf of Mexico, the promptly volunteered their expertise to assess the extent of the massive underwater oil spill.
Little did they know that two years later they’d find themselves in court, on the losing end of a motion filed by oil giant BP that would force them to reveal both the raw and spirited contention that goes into scientific research but the secrets of their own inventions as well.
And the net result could prove chilling to both the scientific deliberative process and to the willingness of scientists to give themselves freely when their help is needed.
The events that have shocked the scientific community should also serve as a reminder to UC Berkeley scientists that their emails could well be targets of the company that effectively bought the university with the largest corporate research grant in the history of American academia.
Dampening the volunteer spirit
We being with a summary of the what happened, from Suzanne Goldenberg of The Guardian:
A pair of scientists have accused BP of an attack on academic freedom after the oil company successfully subpoenaed thousands of confidential emails related to research on the Gulf of Mexico oil disaster.
The accusation from oceanographers Richard Camilli and Christopher Reddy offered a rare glimpse into the behind-the-scenes legal manoeuvring by BP in the billion-dollar legal proceedings arising from the April 2010 blow-out of its well.
It also heightened fears among scientists of an assault on academic freedoms, following the legal campaign against a number of prominent climate scientists.
The two researchers turned over some 50,000 pages of research notes and data to BP. But BP demanded more, and obtained a court subpoena for the handover of more than 3,000 confidential emails.
Now for some background
Christopher M. Reddy and Richard Camilli are scientists at Woods Hole. A marine chemist, Reddy directs the Director of the Institution’s Coastal Ocean Institute, while Camilli is an associate scientist with a specialty in oceanic physics and engineering.
After the Deepwater Horizon explosion on 20 April 2010, the two volunteered their time, expertise, and equipment to survey the extent of the oil spill, but found themselves block by BP.
Here’s Camilli’s testimony to the National Commission on the Deepwater Horizon Oil Spill and Offshore Drilling on 27 September 2010:
And here’s what they discovered when they were finally allowed in, via a 19 August, 2010 report from WHOI:
Scientists at the Woods Hole Oceanographic Institution (WHOI) have detected a plume of hydrocarbons that is at least 22 miles long and more than 3,000 feet below the surface of the Gulf of Mexico, a residue of the BP Deepwater Horizon oil spill. In the study, which appears in the Aug. 19 issue of the journal Science, the researchers measured distinguishing petroleum hydrocarbons in the plume and, using them as an investigative tool, determined that the source of the plume could not have been natural oil seeps but had to have come from the blown out well.
Moreover, they reported that deep-sea microbes were degrading the plume relatively slowly, and that it was possible that the 1.2-mile-wide, 650-foot-high plume had and will persist for some time.
The WHOI team based its findings on some 57,000 discrete chemical analyses measured in real time during a June 19-28 scientific cruise aboard the R/V Endeavor, which is owned by the National Science Foundation (NSF) and operated by the University of Rhode Island. They accomplished their feat using two highly advanced technologies: the autonomous underwater vehicle (AUV) Sentry and a type of underwater mass spectrometer known as TETHYS (Tethered Yearlong Spectrometer).
And the lawyers play games
Having spent nearly five years covering litigation in Southern California’s most elite court venue, we can pretty much parse the reasons why BP wanted the emails.
The answers to be found in a two-word phrase: Exculpatory evidence.
Science can be a rather messy affair before it gets to the stage of the well-crafted journal article or heavily footnoted report as scientists “blue sky” a whole range of hypothesis, not a few of which are simply off the wall. There’s good reasons for doing it that way, throwing out all manner of ideas and concepts while honing down the focus to the set that best fits the data.
But to a lawyer defending one of the world’s biggest corporations against massive civil suits, getting hold of those spontaneous communications can prove a wonderful thing in court, allowing a crafty litigator to create alternative scenarios aimed solely at discrediting an adverse witness.
And the reality of modern communications technology is that its residues last forever, providing a potential gold mine for advocates consumed by the notion of dazzling or bamboozling a jury.
And so, being the zealous advocates they are, BP’s lawyers struck for the jugular, and when the dust had settled, they got everything — including sensitive proprietary information about costly hardware they scientists had invented.
Before the age of emails, scientists would debate their evidence through old media, from phone calls to letters, and much of those exchanges would simply vanish, either forgotten or relegated to the wastebacket.
The scientists were alarmed, writing to the Boston Globe:
Ultimately this is not about BP. Our experience highlights that virtually all of scientists’ deliberative communications, including e-mails and attached documents, can be subject to legal proceedings without limitation. 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 In addition to obscuring true scientific findings, this situation casts a chill over the scientific process. In future crises, scientists may censor or avoid deliberations, and more importantly, be reluctant to volunteer valuable expertise and technology that emergency responders don’t possess. Open, scientific deliberation is critical to science. It needs to be protected in a way that maintains transparency in the scientific process, but also avoids unnecessary intrusions that stifle research vital to national security and economic interests.
Organizations weigh in
Among the responses to the court’s decision we find two that are exceptionally thoughtful.
First this from Michael Halpern, program manager for Scientific Integrity of the Union of Concerned Scientists:
The attack on the privacy of scientists’ email communication is expanding. It’s not just those who deny climate change who are going after the emails. Two scientists from the Woods Hole Oceanographic Institution wrote in the Boston Globe over the weekend that British Petroleum has successfully subpoenaed more than 3,000 confidential emails among scientists that discuss the Gulf oil disaster.
Incredibly, the Woods Hole scientists in question volunteered their time and knowledge to help the government and BP who were, pardon the expression, in over their heads. The scientists were the experts on the deep sea environment, and they saw it as their responsibility to help out in a time of crisis.
They used robotic technology they had developed for other reasons to determine the rate at which oil was gushing from the hole in the ocean floor. When BP asked to see their data and methodology, the scientists provided the company with 50,000 pages of raw data and research methods. That should have been all the company needed to verify the accuracy of the scientists’ research.
But BP wanted more, and convinced a judge to require the scientists to turn over their private correspondence.
Scientists are often ill-equipped to deal with these sorts of invasions of privacy by themselves, and their institutions are in the process of figuring out how to protect researchers while being responsive to court orders and statutes. It behooves organizations that do research, both public and private, to be fully prepared to create space for scientists to do their work in an era where many special interests are eager to take scientists’ email out of context in order to undermine the science.
The Woods Hole scientists saw a country in need and tried to do the right thing, and in the process got burned by a system that does not protect them. And the potential consequences are profound. Sure, scientists might be less likely to ask tough questions of each other in an environment where every sentence they write could be misrepresented. But they will also begin to think twice about using their knowledge to solve pressing and urgent national problems.
And this, from a statement by two top officials of WHOI, President and Director Dr. Susan K. Avery and Director of Research Laurence P. Madin:
A byproduct of the order to hand over our e-mails is that BP now has access to the intellectual property attached to the e-mails, including advanced robotic navigation tools and sub-sea surveillance technologies that have required substantial research investment by our laboratories and have great economic value to marine industries such as offshore energy production. The court provides no counterbalancing legal assistance to verify that BP or its affiliates do not infringe on our property rights. Although there is a confidentiality agreement that BP is subject to, the burden is left entirely to us, a single academic research organization, to police the use of our intellectual property by one of the largest corporations in the world.
In December 2011, WHOI was subpoenaed by lawyers representing BP in response to lawsuits brought against the oil company by the U.S. government, fishermen, workers, and residents injured by the Deepwater Horizon disaster. It is important to note that WHOI is not a party to the lawsuit. BP claimed in its subpoena that it needed information to better understand scientific findings by Camilli, Reddy, and others related to the flow rate measurements they made at the Macondo well. Cleanwater Act violation fines that will be levied on BP may be based in great measure on the amount of oil released; therefore, billions of dollars are at stake.
As was stated in the Globe op-ed, WHOI turned over everything BP would need to analyze and confirm or refute the findings. However, BP demanded more—the scientists’ email communications, notes, and manuscript drafts: “…any transmission or exchange of any information, whether orally or in writing, including without limitation any conversation or discussion…” concerning the research. WHOI, through our lawyers at Goodwin Procter, challenged this demand, but on April 20, the magistrate judge ordered the institution to produce the vast majority of its deliberative work. On June 1, WHOI turned over the last of more than 3,500 emails and associated documents to BP.
This case raises issues that go far beyond our institution and BP. Despite earlier Supreme Court recognition of the importance of the deliberative scientific process, there remains inadequate legislation and legal precedent to shield researchers and institutions who are not parties to litigation from having to surrender pre-publication materials, including deliberative emails and notes, manuscript drafts, reviewers’ comments, and other private correspondence. This situation leaves scientists and institutions vulnerable to litigants who could disregard context and use the material inappropriately and inaccurately in an effort to discredit their work. In addition, there is no guarantee that the costs, both time and material, incurred by an institution in response to court-mandated requests will be reimbursed by the litigants.
While transparency to provide adequate information to reproduce scientific results is an important principle, this situation poses a serious danger to the scientific process. It threatens to facilitate misinterpretation of scientific findings by highlighting preliminary evaluations and opinions, conflating facts with assumptions, and implying conclusions without a valid scientific process or review. Even worse, pulling academics and researchers into litigation they are not a party to will have a chilling effect on how science is conducted. The essence of the scientific process is rigorous deliberation in which scientists examine, question, test, reject, and modify ideas as they work toward a verifiable conclusion. Without adequate legal protection, researchers and their institutions may reasonably fear that their deliberative process can be attacked and their intellectual property exposed, or that they will become entrained in litigation to which they are not parties and where they are unlikely to derive any benefit. As a consequence, scientists may feel forced to curtail, censor or avoid the normal deliberative process. In future emergencies, particularly those that might give rise to litigation, researchers may be more reluctant to volunteer expertise and technology.
And a somber reminder for folks in Berkeley
With its $500 million grant to a consortium headed by UC Berkeley, BP hopes to develop a range of alternative energy technology, with the emphasis on producing plants and microbes to digest them into transportation fuels to replace fossil fuels.
The BP research has two basic aspects, an in-house BP-only lab restricted to BP staff scientists, and a university side, with BP getting first dibs on anything developed by taxpayer-funded academics.
With state and federal funding rapidly dwindling under the neoliberal regime, universities are desperate for cash, and a half-billion-dollar grant was a major coup for UCB Chancellor Robert Birgeneau and then-Lawrence Berkeley National Laboratory director Steve Chu.
But the court’s ruling in the WHOI case should give pause to any scientist with any connection to the project: When push comes to shove, BP will exert all its resources to get everything.
And that should be no surprise, given the company’s history. Back in 1953, when the company was known as the Anglo-Iranian Oil Company, BP had enough clout to swing the overthrow of Iran’s first democratically government and secure it’s replacement by a tin-pot monarch, Shah Reza Pahlavi.
The problem in Iran was that Prime Minister Mohammed Mossadegh had the effrontery to believe that his nation’s oil belonged to his nation, and not to a London-based corporation which had grabbed the oil with a £20,000 bribe to another monarch 52 years earlier.
So we trust that folks here in Berkeley will take out little history lesson to heart.