Sunday, August 14, 2016

When a Legal Document is Meant To Cause Harm: Fraud, Deceit, and Bad Faith

Below is the Formal Notification letter that Mr. Elmore was hand delivered by Joan O'Donnell, editor at the Peabody Museum Press.  This letter has already been discussed from the point of view of New Mexico contract law in Shouldn't a Contract Mean What it Says; I now want to discuss it from the perspective of the legal doctrines of Good Faith and Fair Dealing and Fraud and Deceit.  New Mexico courts have held that every contract imposes a duty of good faith and fair dealing .  "The implied covenant...requires that neither party do anything that will injure the rights of the other to receive the benefits of their agreement" (Sanders v. FedEx).   Intentionally drafting a contract that misleads and harms the other party is a violation of this principle, often simply called Bad Faith.  The Formal Notification can also be viewed under a tort claim of Fraud and Deceit.

According to Legal Dictionary Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact, (2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result....The relationship between the parties can make a difference in determining whether a statement is fraudulent.  A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge.  Deceit is similar and involves making a fraudulent statement where the defendant knowingly or recklessly makes a false representation intending that the plaintiff should act upon it where the plaintiff does act to his detriment.

The exact legal status of the Formal Notification letter is not something I need to determine here.  The book contract that Mr. Elmore signed with the Peabody Museum Press had no termination clause that specified what would happen if the book was not published by the Press.  Editor Joan O'Donnell wrote this letter and gave it to Mr. Elmore personally at Marisco's Restaurant in Santa Fe, New Mexico.  Mr. Elmore relied on the express language returning to him "all rights" in his manuscripts and the recommendation from the Board to publish elsewhere when he self-published In Search of Nampeyo: The Early Years: 1875 - 1892.   The letter contains no restrictions or reservations of rights by Harvard.  The criteria for finding against a defendant on one of these charges are strict and, of course, these are matters that must be decided in a court.  However, here I present some of the evidence learned from Discovery documents provided to Mr. Elmore so tardily by Harvard.  Whether we focus on Bad Faith or Fraud and Deceit the same evidence would be relevant.  

We start with the letterhead and first line of text, both of which announce the letter as from the Peabody Museum of Archaeology and Ethnology.  At the Injunction Hearing in December, 2015 Joan O'Donnell testified that the Press was a separate entity from the Museum, and that their contracts were separate   "....since I never signed an agreement with him about the photographs he took...I couldn't revert those rights to him" (p. 136).  Yet, she writes here on behalf of the Museum on Museum letterhead.  Mr. Elmore could not know if she was misrepresenting herself as an agent of the Museum and overstepping her authority.

Ms. O'Donnell wrote the letter as representing the decision of the Editorial Board and conveying the recommendations of that Board.  In fact, the Formal Notification letter was written by Ms. O"Donnell without any input from, or approval by, anyone on the Board and without asking for a legal opinion, though Ms. O'Donnell stated at the Injunction Hearing that the letter was subject to legal and Museum review (p. 115).   She misrepresents to Mr. Elmore that the Formal Notification is endorsed by the Museum and by the Editorial Board, when in fact it was not read or reviewed by anyone.

Documents reveal that the actual decision not to publish was made by Ms. O'Donnell in consultation with Reviewer #1 in December of 2012, before she received the other two reviews, and more than a year before the negative decision was conveyed to Mr. Elmore.  Reviewer #1 wrote to Joan O'Donnell in this email exchange from December 2012 "I think I sense your discomfort in finding the words with  which  to reject this, right?  Ms. O'Donnell answers "It's not that so much as needing to present strong and explicit arguments to my editorial board and the museum brass."   Reviewer #1 goes on to suggest language with which to reject the manuscript  "Unless I had solicited this manuscript, I would pass along people's comments to him, say that  it is not up to the standards of the institution, and encourage him to take it elsewhere."  The language in the Formal Notification letter mirrors the language decided on in this email exchange from 2012.

Far from helping Mr. Elmore to develop his manuscript as specified in the Letter of Agreement, Ms. O'Donnell seems to have spent the intervening time between December 2012 and January 2014 making sure the manuscript would be rejected by a Board that showed a lot of initial excitement and enthusiasm.  She asked Mr. Elmore to respond in writing to the three reviews he received in May, 2013 and to write a much expanded manuscript for a more scholarly series.  He did this and submitted the second manuscript in November of 2013.  The Peabody Museum Press never communicated with Mr. Elmore about his replies to the reviewers or any of the new material before delivering the Formal Notification.  This document represents the decision as that of the Board and four reviewers.  However, the final decision was not actually made at the Board meeting; that decision was made (officially, this time rather than behind the scenes) after that meeting.  As can be seen from this email exchange between O'Donnell and Peabody Museum Director Jeff Quilter, the two were tasked with another review of the manuscript.  Mr. Quilter chose to leave the decision entirely up to Ms. O'Donnell.  Thus, the last paragraph of the Formal Notification stating  "I have to add, personally, that we tried very hard to make this project work..." is completely at odds with the record of events revealed in the Discovery documents.
The Board did hope that the book would be published elsewhere and, as documented in Mr. Elmore's Response to Harvard's Motion for Summary Judgement (p. 14) the Board recommended that the Museum be liberal in allowing Mr. Elmore to use his own photographs so that the book could be published, as they rightly recognized that the book would be useless without the photography.  The Formal Notification conveys the Board's recommendation to publish, but fails to mention any other procedures or restrictions, though these were known by Peabody Museum staff who sat on the Board, and known to Ms. O'Donnell before the book went to print.  Ms O'Donnell testified at the Injunction Hearing (p. 114) about learning of Mr. Elmore's intention to publish his book  "...since it was a pre-publication sale, I was very hopeful that it hadn't gone to press and that something could be worked out before it went to press and we would never have an issue."  This is the same person who deliberately removed a reference to the policies, that Mr. Elmore is now being sued for violating, from a draft letter before sending it to him, as can be seen in these emails between O'Donnell and Museum Staff.  

Ms. O'Donnell's statement that she would support publication of Mr. Elmore's work in American Indian Art Magazine is VERY peculiar.  As documented in the blog entry Attribution of Unsigned Pueblo Pottery, American Indian Art Magazine was the journal that published Mr. Schramm's article "Righting the Record."  It is apparent that Mr. Schramm had access to Mr. Elmore's work when it was still under review and used that access to preemptively attack Mr. Elmore's argument.   As documented in the judge's final rulings, this article was used to discredit Mr. Elmore's work with the Editorial Board as the minutes of the meeting include Mr. Schramm's "early rebuttal" as one of the reasons to reject his manuscript.  All the people who were at the board meeting who were deposed on this subject claimed they could not remember who had given this as a reason for rejection and none seemed knowledgeable about the actual content of this article.   Given these circumstances and the added fact that one of the people Mr. Schramm thanked in his acknowledgements also sat on the board of American Indian Art Magazine, I think it most improbable that American Indian Art Magazine would have published Mr. Elmore's work and Ms. O'Donnell was well aware of that fact.

The controversy surrounding the offer of "10 -15 existing high-quality Peabody photographs to use in such a publication" has been a central focus of this case.  Harvard has made many different representations of the meaning of this phrase ranging from an assertion that it "underlined" that Mr. Elmore could not use his own photographs, to "not saying" what it means.  Mr. Elmore read it as an offer of existing photographs if he would like to use them, which is what it says.  None of the existing Peabody Museum photographs would have been helpful to Mr. Elmore in making his argument, as that required the careful arrangement of groups of pottery in the Keam collection in order to show the connections among them and establish the artistic styles of Nampeyo.  Ms. O'Donnell was well aware that this offer of photographs had little to no value to Mr. Elmore, as she had testified at the Injunction Hearing that Mr. Elmore's book would have very little value without his photographs. 

We can use the Formal Notification together with information gleaned from Discovery to ask whether there is evidence of an intent to deceive and harm Mr. Elmore, using the criteria for Fraud enumerated above. (1)  The return of "all rights" to his manuscripts and the statement that the letter was from the Peabody Museum and not merely from its Press are either factually false or reckless statements.  (2) Ms. O'Donnell's Injunction Hearing testimony cited above shows that she was aware of these inaccuracies.  (3) The clearest evidence that Ms. O'Donnell intended to deceive Mr. Elmore comes from her removal from an email of the very policy she now tasks him with violating.  (4) Mr. Elmore relied on this letter, which says clearly that he has both the right and a recommendation from the Board to publish his manuscript elsewhere, and lastly (5) Mr. Elmore is now suffering the harm of an onerous lawsuit for doing exactly as Ms. O'Donnell's letter recommended. 

Mr. Elmore is not an academic and is a first time book author.  He relied on the Peabody Museum and its Press because of the high reputation they have in the academic world and their long history of publishing books on important Museum collections.  Thus, Harvard "has superior knowledge in [this] transaction, and knows that the other is relying on that knowledge".  Despite Mr. Elmore's repeated requests that procedures, decisions, and other protocols be communicated to him, it was rare for him to be given information that he needed to produce a manuscript acceptable to Harvard or to learn critical facts that might have prevented this lawsuit.  This email from Joan O'Donnell indicates that she was well aware that Mr. Elmore, as one of the "people in the real world", lacked information about the procedures and processes in academia.  In another email she concludes "mea culpa, mea culpa, mea maxima culpa" revealing that she knows very well it is her job to communicate information to Mr. Elmore and that she had been exceptionally tardy in doing so, only responding after repeated inquiries.  Harvard has spent a lot of time informing the courts about the details of their private processes, but would have done much better if they had given Mr. Elmore such information in a timely manner.

Harvard has cancelled a court ordered settlement conference for the third time.  Harvard is not willing to talk and insists that its view of the matter must prevail absolutely.  Harvard has been steadfast in its demand that every unsold copy of In Search of Nampeyo be destroyed. 

 This is the ninth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with constitutional issues of free speech, the stealing of intellectual property, and abuse of the legal system.

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