VIRGINIA:
IN THE CIRCUIT COURT OF PRINCE COUNTY

THE AMERICAN TRADITION
INSTITUTE, and HON. DELEGATE

ROBERT MARSHALL,
Petitioners,

Civil Action No. 
THE HECTOR AND VISITORS OF

THE UNIVERSITY OF VIRGINIA,
Respondent.

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CITY OF CHARLOTTESVILLE

COMMOWEALTH OF VIRGINIA

AFFIDAVIT OF RICHARD C. KAST

On this day, Richard C. Kast personally appeared before me, a certi?ed Notary Public in
and for the Commonwealth of Virginia, and after ?rst being duly sworn to tell the truth, testi?ed
as follows:

I. My name is Richard C. Kast. As I have previously represented to this Court in an
af?davit ?led in this matter on May 23, 201 1, I have been licensed to practice law in the
Commonwealth of Virginia since 1973. I have practiced in the ?eld of higher education since
1985. I have been Associate General Counsel at the University of Virginia (?University?) since
January 1996.

2. Following the entry by this Court of the protective order on May 24, 2011, I
became concerned that press releases and media coverage were misrepresenting the effect of that
order in disturbing ways and that these distortions and inaccuracies might indicate that David

Schnare and Christopher I-Iorner did not understand their responsibilities pursuant to the order.

3. Immediately following the entry of the protective order, Petitioner Homer
himself, in conjunction with Paul Chesser, issued a press release on behalf of The American.
Tradition Institute stating that ?the University was hauled into court? and required to
produce the documents sought by ATI ?so that ATI can make them available to all who wish to
review? them. The press release further stated that has won the right to look at all of the
documents beginning no later than September 21, including those the University refuses to make
public.? (Exhibit 1.) These representations were obviously antithetical to the spirit, intent, and
literal requirements of the protective order and raised concerns in my mind that Mr. Hornet did
not understand or did not plan to abide by the terms of that order. I

4. On May 25, 2011, The Washington Times quoted Delegate Robert Marshall, one
of the Petitioners in this lawsuit, as follows: want to look at what they?ve given us and
examine what they?ve withheld and see why it?s been withheld.? This statement concerned me
because Delegate Marshall has no access to the exempt documents pursuant to the protective
order. (Exhibit 2.)

5. On May 26, 2011, Petitioners Schnare, Homer and Marshall co-wrote an op?ed
piece for The Washington Examiner entitled: ?Yes, Virginia, you do have to produce those
?Global Warming? documents.? Petitioners wrote that ?[t]he university must also allow
attorneys David Schnare and Chris Hornet to view any [documents] it believes are exempt from
release under and noted that although ?Schnare and Homer had to promise that they
would not disclose the contents of any documents withheld until the court rules on whether
OIA exemptions are valid, . . . they do get to see all of them. That?s a major
breakthrough.? (Exhibit 3.) Again, these statements were irresponsible and inconsistent with a

genuine intent of Petitioners Sclurare and Homer to abide by the terms of the protective order.

6. On May 26, 2011, an article appeared in Commentary entitled ?Climate Scientist
Ordered to Release Thousands of Documents." That atticle quoted Petitioner Hornet and stated
that the University ?must allow. . . David Schnare and Chris Homer to view any [documents] it
believes are exempt ?om release under FOIA?with the burden of proof on The article
further noted that even if the University were to attempt not to disclose exempt documents, those
documents would ?still have to be shown to the two attorneys who ?led the public information
request.? (Exhibit 4.) Clearly, this latter statement inferred that there was some signi?cance vis
or vis public disclosure of these documents that was wholly inconsistent with the terms of the
protective order.

7. Further disturbing and inaccurate reporting appeared in The Chronicle of Higher
Education, which reported on May 25, 2011, that the University had ?agreed to turn over a
. . potentially enormous trove of climate-research e-mails and other documents to a conservative
group that ?led a demand for them under the state?s Freedom of Information Act,? (Exhibit 
The Virginian Pilot, which reported on May 26, 2011: ?Under the terms of a legal agreement,
the werlt papers of a former University of Virginia climate change professor will be provided to
an advocacy group that requested them earlier this year under the state open records law,?
(Exhibit and Inside Higher Ed which reported on May 26, 2011: state judge has ordered
the University of Virginia to release documents produced by Michael Mann, who formerly
taught there, to a conservative foundation requesting them as open records.? (Exhibit 7.)

3. The ATI press release and this reporting re?ected a pervasive misunderstanding
of this Court?s protective order. It troubled me that David Schnare and Christopher Homer either
originated or were quoted in most of this disturbingly inaccurate information. It further troubled

me that neither had done anything as far as I could determine to correct the record.

9. Before I could express my concerns to David Schnare, he sent me an e-mail on
May 26, 2011, stating: ?Please let your colleagues know that the noise that has arisen since
Tuesday is just noise. I look forward to discussing with you how we can bring cur disparate
philosophies together into a sensible approach to disclose that which is proper to disclose,
without visiting harm on the academic community.? (Exhibit 8.)

10. On May 27, 2011, I responded to Dr. Sehnare noting that, while the University
was used to the hyperbole and error that had pervaded much of the reporting on Freedom
of Act request, some of what he had characterized as ?noise? following the hearing
in this Court had been ?particularly disturbing in its implication that the Protective Order did not
exist or was of no moment.? I asked for a speci?c reassurance from him and Mr. Homer that
they remained fully aware of ?the requirements for con?dentiality and nondisclosure imposed by
[this] Court.? (Exhibit 9.)

1 I. Dr. Schnare responded to my May 27 e-mail on the same date acknowledging that
the ?most disturbing reporting suggested that We would use any knowledge we gain to game the
system.? He further noted: ?[P]lease reassure your colleagues that I will countenance no
abrogation of our duty to the court and to (Exhibit 10.) On June 1, 2011, Dr. Schnare
?lrther noted: ?Both Mr. Homer and I take our responsibilities to the Court very seriously, but
understand the sensitivities at issue in this highly public matter. To that end, Mr. Horner will
send you an email documenting his full understanding of the responsibility he took on when he
signed the attachment to the protective order and his continuing commitment to that.? (Exhibit
11.) Also on June 1 Mr. Horner furnished the referenced e-mail noting that if the University?s

general counsel had any concerns about his adherence to the protective order, he should contact

him directly. (Exhibit 12.)

12. On May 31, 2011, Dr. Schnare sent me an e-mail in which he noted: am
angered and upset at the mostly irrational and surely uncivil discussion going on (especially on
in?uential internet blogs) with regard to the differences between UVA and GMU in handling our
recent FOIA requests, and ATI has done little to help in that regard.? (Exhibit 13.) While this
statement has the right words, the fact is that Mr. Schnare was then and remains a key staff
member of ATI, not some innocent bystander. See Sta?cfz Board of Directors, AMERICAN
TRADITION INSTITUTE, (last visited Oct.
14, 2011.

13. Not surprisingly, the vast amount of misinformation, distortion, and ?irrational
and surely uncivil discussion? that followed this Court?s entry of the protective order on May 24,
2011, resulted in a vast outpouring of concern from University faculty, faculty and scientists at
other institutions, and professional groups such as the AAUP, the ACLU of Virginia, and the
Union of Concerned Scientists. (See representative letters collected at Exhibit 14.) In addition, I
myself received conununications directly expressing concerns about the University?s perceived
capitulation to ATI and lack of concern for research integrity and academic freedom. (Exhibit
15.) This groundswell of concern fueled by the pervasive misinformation in the media about

what the University had actually agreed to was understandably of concern to University
President Teresa Sullivan who responded to it. (Exhibit 16.)

14. More disturbing than the concerns fueled by misinformation, however, were the
concerns that remained in the minds of those who perfectly well understood the requirements for
con?dentiality imposed by the protective order, but nonetheless did not believe that Petitioners
Sehnarc and Homer could be trusted to abide by those requirements. These concerns derived not

just from the very public zeal of to discredit Michael Mann (see Exhibit where Dr.

Mami?s image is used on the ATI website and described as ?discredited? and seeking to keep his
University records ?hidden from the taxpayer?), but also from the fact that, unlike most
situations in which attorneys are granted access to confidential information pursuant to a

protective order, Dr. Schnare and Mr. Hornet were not just counsel for the Petitioners in this
case, they were two-thirds of Petitioners in this case.

15. On August 31, 2011, to respond to concerns that had been raised about the
possibility of someone seeking access to the documents that were to be shared with Dr. Schnare
and Mr. Horner pursuant to the protective order through the issuance of a civil investigative
demand, subpoena, or other such demand, I wrme to Dr. Schnare seeking his and Mr. Homer?s
assurances that they agreed that such attempts could not be successful under the terms of the
protective order. (Exhibit 18.)

16. On September 2, 2011, Dr. Schnare wrote to me to assure me that he and Mr.
Homer understood the protective order as I did: tie. it would not allow for their release of
documents disclosed to them by the University pursuant to its terms to be further disclosed to
third parties in response to a civil investigative demand, subpoena, or other demand. (Exhibit
19.)

17. Because of the numerous and recurrent concerns that had been raised about the
protective order, as detailed above, my colleague and co-counsel in this matter, Madelyn Wessel,
sent a letter dated September 20, 2011 (the letter was actually transmitted electronically on
September 21) to Dr. Schnare proposing an alternative mechanism for review and inviting Dr.
Schnare?s comments. (Exhibit 20.)

18. On September 29, 2011, having heard no response from Dr. Sclmare. Ms. Wessel

inquired when he might be available to discuss the proposal made in her September 20 letter.

Dr. Schnare responded that he had been in the midst of ?a particularly Upsetting family crisis?
and further stated: ?Among other things, tomorrow is my last day as an employee of the US.
EPA, and I?ve had to close out a large caseload as well as deal with all manner of federal records
matters.? (Exhibit 21.)

19. Dr. Sehnare?s statement of his continuing employment status with the EPA
through September 30, 2011, came as a complete surprise to me because on May 24, 2011, prior
to my appearance in this Court that resulted in the entry of the protective order, Dr. Schnare had
told me that he had worked for the EPA but now was doing public interest law and handling such
matters as the 01A request currently before this Court.

20. On September 29, 2011, I communicated my surprise and concern about Dr.
Sehnare?s apparent misrepresentation to him, noting: must say that I am surprised and frankly
disturbed by your revelation that you are just now leaving the EPA. You told rpe when we ?rst
met before the initial court appearance in Prince William County Circuit Comt on May 24lhl that
you had formerly been with the EPA and were then, and had been fora while, a private, public?
interest lawyer.? (Exhibit 22.)

21. Dr. Schnare responded: have had authority from the agency to do pro bono
public interest law for over 5 years now. That is what I represented to you.? He further noted
that he never mentioned EPA duties when doing non-EPA work and never used EPA facilities
I for private work. (Exhibit 23.) At no time on May 24 or at any subsequent time prior to his e?
mail of September 29 had Dr. Sclmare ever represented to me that he continued to be employed
by the EPA or had had authority to do pro bono public interest law work for over 5 years or for
any other period of time. Dr. Schnare repeatedly sought to convince me and my co-counsel

that our expressions of concern about potential misuse of the documents to be provided under the

protective order were insulting to someone who had been an EPA lawyer handling highly
confidential documents over a long career. Indeed, he made a similar argument to this court,
stating at the hearing on September 16, 2011 that: ?Now, because of some dispersions cast, we
want to make it clear, Your Honor. 1 have been a federal prosecutor on environmental issues. I
have had access to extremely sensitive business information. If I were a corrupt man, 1 would not
- be here today on cash games, insider training, and retiring in Bermuda." (Exhibit 24 

22. To attempt to understand the con?ision about Dr. Schnare?s employment status,
and discuss with him Ms. Wessel?s proposal in her September 20 letter, Ms. Wessel and I
scheduled a telephone call with him on October 3, 2011. Prior to that conversation, Dr. Schnare
sent us an c?mail stating that he wanted us to explain ?the nature of [our] concern about the fact
that [he] was an employee of EPA, operating under an outside employment waiver, prior to
October 1, 2011.? He further stated that he had ?explained? to me that he ?had worked for
but ?never made a specific statement as to [his] current employment other than as to [his]
pro bono representation in the instant case and [his] general responsibilities for ATI, and had

every good and ethical reason to say no more.? (Exhibit 25.)

23. On October 3, 2011, in his conversation with Ms. Wessel and me, Dr. Schnare
insisted that he had made no misrepresentations to me about his employment status with the EPA
and had nothing to apologize for. 1 vehemently disagreed with these statements and so informed
Dr. Schnare.

24. Subsequent to my conversation with Dr. Sclmare on October 3, further
information came to my attention that con?rmed that he had been misleading me about his
employment status with the EPA. Speci?cally, in a letter of October 6, 2011, the Senior Counsel

for Ethics with the EPA noti?ed Peter Fontaine, who is representing Michael Mann in his motion

to intervene in this case, that Dr. Schnare had never had the required outside approval ?to engage
in outside activity that involves the practice of a profession or that deals in significant part with
any ongoing Agency pro gram, policy or operation.? Moreover, although a ?request for approval
of the outside activity was purportedly prepared by Mr. Schnare on or about November 16, 2010,
. . . neither his Deputy Ethics Of?cial nor his Assistant Deputy Ethics Of?cial has any record of
receiving it or approving this request to engage in the outside activity.? (Exhibit 26.)

25. My review of the request for approval ?purportedly prepared? by Dr. Schnare
revealed that, even had it been received and approved by the appropriate officials at the EPA, it
would not have authorized the work he has undertaken for ATI as counsel in this lawsuit because
Dr. Schnare clearly and unambiguously represented: ?My duties would not include any
representation at law of the Institute or its members. Institute and af?liated attorneys will
conduct all representation of any matters at law.? (Exhibit 27.)

26. Further, Dr. Schnare?s memorandum states that ?All services will be performed
entirely outside normal duty hours.? (Exhibit 27.) However, a review of the e-mail
communications I have received from Dr. Schnare since I became involved with Freedom
of Information Act request in mid?February (the request was made January 6, 201 1), reveals that
1 have received 58 messages from Dr. Schnare from February 17 to September 29, 2011.
(Exhibit 28.) Most of these e?mails were sent between 8:30 em. and 5:00 pm. and all were sent
on week days and on days that were not federal holidays. Moreover, during this same time
period, Dr. Schnare has ?led voluminous pleadings in this Court during regular business hours.

Mr. Schnare also sent emails to my co-counsel Madelyn Wessel and to the University?s Public

- Affairs Of?ce during regular business hours. (Exhibit 29).

27. The fact that Dr. Schnare has, for whatever reason, felt compelled to make
misleading statements tome about his employment status with the EPA, and demonstrably false
statements about his having obtained the requisite approvals to represent ATI in this lawsuit
while still being employed by the EPA, is extremely troubling and has destroyed Dr. Schnarc?s
credibility in my mind. Under the circumstances, I cannot feel comfortable with the
representations he has made to me about his intent fully to abide by the terms of the protective
order. The behavior of Mr. Homer documented in this Af?davit also creates the same concerns.
Mr. Homer is also not licensed to practice in Virginia and is therefore not subject to ethical

I duties and standards set by the Virginia Bar.

5014:? KM

Richard C. Kast
Seen to and subscribed before me this l? day of October, 2011.
.?x?iilcec right; 

My commission expires: 

   

BKUHIJE ALJIJI
Notary Public
Gnmmanwealth at Virginia
TDTEBEIA
My Commission ERDITEE Nov 30. 2014

    
      
       

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