[StBernard] BP Subpoenas E-mails of WHOI Scientists

[Westley Annis]

BP Subpoenas E-mails of WHOI Scientists



By: Brent Runyon	

Published: 06/08/12

Two scientists from the Woods Hole Oceanographic Institution, both of whom
live in Falmouth, handed over more than 3,000 confidential e-mails to BP
last week as part of a subpoena by the oil company, because of the Deepwater
Horizon disaster lawsuit brought by the federal government.

The scientists, Christopher M. Reddy of Spectacle Pond Drive, Hatchville,
and Richard Camilli of Millfield Street, Woods Hole, could not answer
questions this week because they are likely to be deposed in the case,
according to Stephanie Murphy, manager of public information for Woods Hole
Oceanographic Institution.

But the scientists, in a column published in The Boston Globe last Sunday,
highlighted their concerns that BP could use the e-mails out of context to
discredit their findings and have access to secret intellectual property.
The release of the e-mails will also have a chilling effect on the
scientific process in general, they wrote.

They are not accused of any crimes or party to the lawsuit, they wrote in
the editorial. "We are two scientists at an academic institution who
responded to requests for help from BP and government officials at a time of
crisis," they wrote.

The Deepwater Horizon disaster, which began on April 20, 2010, killed 11
people and spilled oil at a depth of nearly a mile in the Gulf of Mexico.
"That deep-sea environment was aqua incognita to the oil industry and
federal responders, but a familiar neighborhood for us at Woods Hole
Oceanographic Institution. BP and Coast Guard officials asked for our help
to assess the disaster, and we obliged," they wrote.

Dr. Reddy and Dr. Camilli used robotic submersibles equipped with advanced
technologies they had developed for marine science. They measured the rate
of fluid released from the well and determined an average flow rate of
57,000 barrels of oil per day and calculated the total release of
approximately 4.9 million barrels.

"BP claimed that it needed to better understand our findings because
billions of dollars in fines are potentially at stake," they wrote. "So we
produced more than 50,000 pages of documents, raw data, reports, and
algorithms used in our research-everything BP would need to analyze and
confirm our findings. But BP still demanded access to our private
communications. Our concern is not simply invasion of privacy, but the
erosion of the scientific deliberative process."

Scientific Method: Examine And Re-Examine

Deliberation is an integral part of the scientific method, they wrote, and
during the process researchers challenge each other and hone their ideas.
"In reviewing our private documents, BP will probably find e-mail
correspondence showing that during the course of our analysis, we hit
dead-ends; that we remained skeptical and pushed one another to analyze data
from various perspectives; that we discovered weaknesses in our methods (if
only to find ways to make them stronger); or that we modified our course,
especially when we received new information that provided additional insight
and caused us to re-examine hypotheses and methods.

 "In these candid discussions among researchers, constructive criticism and
devil's advocacy are welcomed. Such interchange does not cast doubt on the
strengths of our conclusions; rather, it constitutes the typically
unvarnished, yet rigorous, deliberative process by which scientists test and
refine their conclusions to reduce uncertainty and increase accuracy. To
ensure the research's quality, scientific peers conduct an independent and
comprehensive review of the work before it is published."

Dr. Reddy and Dr. Camilli wrote that a byproduct of handing over the e-mails
to BP is that the company now has access to the intellectual property
attached to the e-mails, including advanced robotic navigation tools and
sub-sea surveillance technologies that 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," they wrote.

Subpoena Could Impact All Science

But ultimately, they wrote, the editorial was not about BP. Their experience
is 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," they wrote.

Their concerns are echoed by the leadership of the Woods Hole Oceanographic
Institution. President and Director Susan K. Avery and Director of Research
Laurence P. Madin, also issued a statement that they are concerned about the
erosion of academic freedom to study without being subject to investigation
or litigation. They wrote that "the threat of litigation stifling scientific
deliberation is real and troubling."

The case raises issues that go far beyond WHOI and BP, they wrote. "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," Dr. Avery and Dr. Madin
wrote.

The Benefit Of Academic Research

Academic research catalyzes innovation, stimulates the economy and enhances
the quality of life, they wrote. "But history has proven time and again that
academic institutions also supply invaluable qualities in responding to
crises ranging from national security to public health. These qualities
include capabilities based on knowledge and technology derived from decades
of innovative research, together with a willingness to bring these skills to
bear rapidly in emergency situations. Standards of academic research also
include a commitment to unbiased and objective research, and both
thoroughness in the collection and analysis of data, and prudence in
observing strict standards of quality and peer review. Ironically, some of
these very qualities that drew scientists into the response effort will
suffer as the deliberative process is eroded.

"We urge professional scientific and higher education organizations, legal
advocates, legislators, citizens, and businesses to examine these issues and
support the establishment of adequate protections for researchers and their
institutions. Such safeguards will help ensure the freedom of the nation's
scientific enterprise, thus assuring its continued success in fostering
innovation and economic growth and in responding to societal needs and
crises," the two wrote.

In response, Geoff Morrell, BP United States head of communications,
released the following statement. "BP is a company of scientists and
engineers, and the subpoena served on Woods Hole is in no way an attack on
science. The information and documents that BP sought to be produced by
Woods Hole are typical of information and documents regularly sought in
civil litigation, and the Court found, among other things, that there was a
demonstrated need for the materials because there was no other source for
them. The arguments made by Woods Hole to somehow exempt its materials from
discovery were considered and rejected by the Court, and Woods Hole did not
appeal the Court's decision."