FOIA Appeal for Scientific Data - Letter of Denial, May 22, 2003

"...the data set in its entirety has never been released and remains the intellectual property of the investigators and the University."

Federal Rule of Civil Procedure 26 (a)(2)(B), provides
that the expert's report "shall contain .... the data or other information
considered by the expert in forming the opinions. "  See below for complete text of law, the plaintiffs 1999 request for the dataset, and the U-M's refusal to produce it as requested.

May 22, 2003

Mr. Chetly Zarko

RE:     Appeal of FOIA decision ZAR 0080-03

Dear Mr. Zarko:

I write on behalf of President Mary Sue Coleman in response to your e-mail of May 9, 2003, appealing Mr. Lewis Morrissey's response to your Michigan Freedom-of-Information Act request referenced above.

Your appeal is denied.  The records in question are exempt from disclosure under the Michigan Confidential Research Information Act, which was cited by Mr. Morrissey.  The data set is the intellectual property of the University and the principal investigators on this project.  The project is an ongoing, longitudinal study, which the investigators continue to develop for scholarly purposes.  Although some variables have been released to Michigan students for use in specific, scholarly thesis projects, the data set in its entirety has never been released and remains the intellectual property of the investigators and the University.

Please note that within 180 days from the date of the letter from the Chief Freedom of Information Officer denying your request, you have the right to seek judicial review in the circuit court to try to compel disclosure.  If you seek judicial review in the Michigan circuit court and prevail, you will be awarded reasonable attorney's fees, costs and disbursements incurred in maintaining the action.  If you prevail in part, you may still be awarded complete or partial reimbursement for those expenses.  In addition to actual and compensatory damages, you will be awarded punitive damages in the amount of $500 if the court finds that the University was arbitrary and capricious in its denial.

Sincerely,
Gary D. Krenz
===========
Gary D. Krenz
Special Counsel to the President
University of Michigan

2056 Fleming Building   Phone: (734) 936-7724
Ann Arbor, MI 48109-1340        Fax:   (734) 936-3529/ 527-6119

Expert Discovery Provisions in Rule 26, Federal Rules of Civil Procedure

First Published 8/8/01 - Last Update: 8/8/01 17:00
Expert Discovery Provisions in Rule 26, Federal Rules of Civil Procedure

The following is the text of the parts of Rule 26, Federal Rules of Civil Procedure, which deal directly with expert discovery, in civil actions:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
* * *
(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).
* * *
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
* * *
(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
* * *
[End of Expert Discovery Provisions of FRCP 26]

Criminal Law Reform Website Copyright © 2001 by Carl E. Person - no copyright claim made as to text of any statutes or rules.

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This is a message from Dr. Thomas E. Wood to his AADAP-L email list.  

AADAP-L, a free, moderated email list with daily postings, is a project of Americans Against Discrimination and Preferences (www.aadap.org).
Thomas E. Wood, President and Moderator
***************************************
NOTE FROM THE MODERATOR:

It is relevant to note at this point in the discussion that the plaintiffs in the U Michigan litigation requested copies of data from the Michigan Student Study at the District Court level. So far as I know, this and all other such requests were denied by the University, and Judge Duggan apparently declined to force the University to hand over the data to plaintiffs.

I thought this was outrageous at the time, and continue to think so now.

I felt so strongly about it at the time, in fact, that I went through hard copies of the court records, and typed up relevant excerpts to show the whole shabby history of the thing. These materials were posted at the time to the two email lists I moderate, AADAP-L and CASNET, and were uploaded to the California Association of Scholars web site (www.calscholars.org). The documents are still there, but only as hidden files. Here are the links to them for readers who might be interested:

calscholars.org/DiscoveryPartI.pdf
calscholars.org/strikemotion.pdf
calscholars.org/PlaintiffsReplyStrikeMotion.pdf
calscholars.org/Duggan Hearing November 16, 2000.pdf
calscholars.org/DugganHearing.pdf
calscholars.org/DugganOpinion.pdf

Of these materials, see particularly the first:
calscholars.org/DiscoveryPartI.pdf

In this document, the most relevant passages for putting Zarko's investigative work in its proper context are the following ones:

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NOVEMBER 5, 1999

In the United States District Court for the Eastern District of Michigan, Civil Action No. 97-75231, Hon. Patrick J. Duggan, Hon. Thomas A. Carlson, Plaintiffs' Requests for Production of Documents to Defendants (Set V)

P. 1 : Pursuant to Federal Rule of Civil Procedure 34 and Local Rule of Practice 26.1, plaintiffs request that defendants produce all documents requested herein within thirty (30) days of service hereof...

P. 3: "Document Request No. 45: Produce all the electronic computer output (in machine readable form) for the regression analysis and analysis of variance information that is contained in Appendix D of the Expert Witness Report of Dr. Patricia Gurin, dated December 15, 1998."

P. 3: "Document Request No. 46: Produce a copy of all survey instruments relied upon by Dr. Patricia Gurin in forming her opinions expressed in her Expert Witness Report dated December 15, 1998. This includes survey instruments used in the Cooperative Institutional Research Program (" CIRP"), Michigan Student Survey (" MSS"), and Intergroup Relations, Conflict, and Community Programs (" IRCCP") studies."
+++
NOVEMBER 11, 1999

In the United States District Court for the Eastern District of Michigan, Civil Action No. 97-75231, Hon. Patrick J. Duggan, Hon. Thomas A. Carlson, Plaintiffs' Requests for Production of  Documents to Defendants (Set VI)

P. 3: "Document Request No. 48: "Produce or make accessible to Plaintiffs the 'College and Beyond' database used and relied upon by Defendants' experts William Bowen and Derek Bok and referred to in their book, 'The Shape of the River. '"

P. 3: "Document Request No. 49: Produce or make accessible to Plaintiffs the 'Michigan Student Study' and 'Intergroup Relations, Community, and Conflict Program' databases used and relied upon by Defendants' Expert Patricia Gurin and referred to in her expert report."
+++
JANUARY 11, 2000

Letter from Kolbo to Sherburne:

P. 1-2: "I am writing concerning our telephone conversation yesterday afternoon. I called to seek concurrence in several motions that plaintiffs had intended to serve and file today or tomorrow. We agreed that instead of filing the motions immediately, I will write to you about the issues that plaintiffs intend to raise by motion if the parties cannot reach an agreement. . Because the amended discovery deadlines are approaching - March 15 in Gratz, and March 26 in Grutter - we do feel compelled to resolve these issues as soon as possible. I suggest that we give ourselves until the end of the business day, Wednesday, January 19 to attempt to reach agreement on the various issues discussed below. If disputed issues remain at that point, we will serve and file the appropriate motions. . Most of the issues with respect to plaintiffs' intended motions concern the document requests that plaintiffs served in these two cases in November 1999 (Sets V and VI in Gratz and Set III in Grutter).

#4, p. 4: "Plaintiffs have asked, through requests made in the Gratz case, for several items related to the report of Dr. Patricia Gurin. These are, generally: (1) all of the survey instruments used by Dr. Gurin in her analysis.; (2) the electronic database of information considered by her with respect to the three Michigan studies referenced in her report; and (3) the computer output generated by Dr. Gurin. These underlying data are subject to automatic, required disclosure, without the need of a formal request, pursuant to Federal Rule of Civil Procedure 26( a)( 2)( B), which provides that the expert's report 'shall contain . the data or other information considered by the expert in forming the opinions. '"

#5, p. 4: "Plaintiffs have also asked, through requests made in the Gratz case, for access to the College and Beyond database considered by Drs. Bowen and Bok in their expert report and specifically as described in their book, The Shape of the River. The basis for the request is the same as that with respect to the requests for Dr. Gurin's database and factual data."
+++
JANUARY 31, 2000

Letter from Sherburne to Kolbo

P. 1: "In our conversation last week we reached a number of agreements regarding your discovery requests, which this letter intends to memorialize. As a preliminary matter, however, I must emphasize our dismay at the way you have exploited the occasion of the intervention to initiate discovery against us to which you were otherwise not entitled. Had discovery not been reopened for the purpose of permitting the intervenors to take discovery, your ability to get any of the items you now seek would have been precluded. Nonetheless, we have agreed to meet you far more than half way. .."

P. 2: "Fourth, we will provide you with the survey questions that produced the data Dr. Gurin used in her analyses, and we will give you the access policies under which Dr. Gurin obtained that data. We will also produce printouts of the so-called 'computer output' that forms the backup for the results in Dr. Gurin's report."
+++
February 2, 2000

Letter from Kolbo to Sherburne

P. 1-2: "Rather than simply move to exclude experts Bok, Bowen, Gurin and others on the grounds that the defendants have willfully refused to turn over their data to plaintiffs, we have openly requested this information. However, we want no misunderstanding in that regard. If, for example, the C&B database, upon which Messrs. Bok and Bowen rely, is not provided to plaintiffs pursuant to our formal request, we fully intend to seek an order from the court precluding their purported 'expert' testimony. We intend to make the same motion with regard to every other defense or intervenor expert who fails to provide the data upon which they intend to rely in expressing their opinions."

P. 2: "As to the Gurin materials, we will seek access to the data through the policy that you refer to in your letter. If that request does not lead to reasonable and timely access, we will again renew our request for production to defendants."
+++

COMMENTS BY WOOD: It is my understanding that U Michigan did turn over to plaintiffs the survey instruments for the Michigan Student Study that produced the data Prof. Gurin used in her Expert Testimony in Gratz v. Bollinger, but did not turn over the data that the instruments produced!

This is certainly true of the national data set Gurin used (the HERI/CIRP data base at UCLA). As indicated in the court record, the computer printouts from this data set were turned over to the plaintiffs, and the National Association of Scholars and its state affiliate, the California Association, obtained a copy of these from the plaintiffs' attorneys.  The computer printouts provided the basis for the NAS' and CAS' first critique of U-Michigan's diversity rationale in "Race and Higher Education" (www.nas.org/rhe.pdf). At that point, however, Malcolm Sherman and I, the co-authors of the report, did not have the data base itself. We had only Gurin's printouts of the data set.  To get access to the data base itself, Malcolm had to make a site visit to UCLA. That site visit made it possible for us to sharpen and expand our critique in our "Supplement to Race and Higher Education" (www.nas.org/rhe2.pdf).

So far as I know, the data set for the Michigan Student Study has never been seen by anyone who might be critical of U Michigan's preferential admissions policies. So Chetly Zarko's recent investigative work has simply sharpened a question that has been around for a long time:

WHY HAS U MICHIGAN CONSISTENTLY REFUSED TO DIVULGE THE DATA SET FOR THE MICHIGAN STATE STUDY, WHICH IS CITED IN THE UNIVERSITY'S EXPERT TESTIMONY IN GRATZ V. BOLLINGER, THE LANDMARK LITIGATION THAT IS NOW BEFORE THE U.S. SUPREME COURT?

AADAP-L, a free, moderated email list with daily postings, is a project of Americans Against Discrimination and Preferences (http://www.aadap.org).