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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Does a Contract Mean What It Doesn't Say and Other Questions Submitted for Summary Judgement

The case of Harvard v. Elmore focuses on disputes over the interpretation of three documents, the Permission to Photograph Collections (shown below), Letter of Agreement, and Formal Notification Letter.  Harvard has filed a Motion for Partial Summary Judgement on Contract Interpretation.   Harvard claims that the contracts forbid Mr. Elmore from publishing the photographs that he made while doing research for his book in the Keam Collection at Harvard University.  Mr. Elmore claims that according to these contracts, he was given the "written permission" required to publish his own copyrighted photographs in the Formal Notification letter returning to him "all rights" in his manuscript and recommending that he publish elsewhere.

A Motion For Summary Judgement is an attempt to bypass the trial process and have the judge  decide the matter according to the law and the undisputed facts of the case.  There should be no summary judgement if there are genuine issues of material fact that need to be decided by a jury. In deciding whether to issue a summary judgement, the judge must consider whether it is possible that a reasonable jury could return a verdict in favor of the party not asking for the judgement.  If he believes a reasonable jury could return such a verdict, the case should go to trial.  Two important cases for determining whether a summary judgement is warranted are the U. S. Supreme Court case Anderson v. Liberty Lobby  and the New Mexico Supreme Court case Eavenson v. Lewis Means. 

I discussed some of the issues concerning the Formal Notification letter in Shouldn't a Contract Mean What it Says.  In this entry, I will focus on the dispute around the Permission to Photograph Collections form.  In their Reply to Mr. Elmore's Response Harvard states "the Photography Agreement speaks for itself"  Let's see what it says.

 

In their recent motion for summary judgement, Harvard quotes from the document as follows:  "No such photographs made by me will be publicly exhibited in any manner or medium, or reproduced . . . .”  They omit the phrase "I understand and agree that any other use will require the prior written permission of the museum and shall be governed by the photographic policies of the Peabody Museum and Harvard University."   Notice that this form gives no indication of who should or could give the permission or what form the permission should take.   It does not indicate that photos must be submitted or who must submit them.  It does not refer to any named documents or say where such documents can be found.  When Mr. Elmore was preparing his book for publication, he went back to this contract, and followed the policies given on this form, using the museum number for each piece of pottery and using the credit line  "Courtesy of the Peabody Museum  of Archaeology and Ethnology, Harvard University"  This information was included in an addendum to the book.

Harvard further argues that  "...the Photography Agreement provided a process for seeking and acquiring permission from the Museum to publish research photographs—involving photographic quality review and transfer of copyright—a process Elmore admittedly did not follow."  If you read the above "Photography Agreement" you will see that no such process is outlined in the document.  A further, though perhaps minor point, is that "photographic policies" is not capitalized in the Permission to Photograph form, though they are always capitalized "Photographic Policies" when mentioned by Harvard.  Capitalizing these words conveys that there are actual named documents with this title.  Even such a small detail as this might have prompted Mr. Elmore to wonder about and ask for these documents. 

The crux of the matter here is that there are other photographic policies than the ones on this signed contract.  Mr. Elmore was never told about, referred to, or given these policies and so was completely unaware of their existence before publishing his book.  Harvard writes:

"Mr. Elmore admitted he has internet access but never looked for the policies".  Elsewhere they write:  "The Museum’s Photographic Policies were available to Elmore online. As they existed at the time, they provided:  In rare circumstances, the Museum will allow a researcher to publish his or her own photograph of a Peabody Museum object. The procedure for seeking permission involved a review of the photograph quality and the transfer of copyright for that photo to the Peabody Museum. For information on seeking permission to publish your own photographs, click here."

Harvard argues that they were on the Peabody Museum website and since Mr. Elmore was aware of the website, he had an obligation to look through every page, and if he had, he would eventually have found the page which refers to these policies and the link to the email address he needed to write to in order to officially submit his photographs for review.  I have used websites in which users had to agree to follow all guidelines and policies before they could access the site, but the Peabody Museum site was not one of these until recently.  I'm rather sure that this change and others were triggered by the present litigation.  The Peabody Museum has updated its website to be more in line with what is typically done on other museum websites.  This change indicates their realization that their website previously lacked clarity on this issue.  You can now find the following statement in red in the beginning of their  "Terms of Use" page:

Use of the website www.peabody.harvard.edu (the "Site") is subject to the following terms and conditions and all applicable laws. By using the Site, you accept and agree to be bound by these Terms of Use. If any of these Terms of Use are unacceptable to you, do not use the Site.

An additional legal question is whether a person can be held responsible for following the terms of a contract that he never signed, or even knew existed.  Harvard emphasizes the need to transfer copyright of personal photographs to the Peabody Museum before permission to use personal photographs is granted.  The contract pictured above, that Mr. Elmore signed, only states "I agree to provide the Peabody Museum with copies of these photographs free of charge upon request at any date".  The copyright transfer provision is present in the Contract for Permission to Use or Publish Photographs, a four page contract that Mr. Elmore neither saw nor signed.  Does the Peabody Museum have any obligation to provide the policies researchers are expected to follow?  Harvard argues that they do not.  They also hold Mr. Elmore liable for violating the terms of a contract that he did not sign, or even see.

Not only did the Peabody Museum fail to inform Mr. Elmore of the policies, but Peabody Museum Press editor Joan O'Donnell purposely concealed the existence of these policies from him.  As the Permission to Photograph form was a contract with the Peabody Museum, not its Press, I would expect that the Museum would administer its own contracts. However, they did not and instead left the administration of their contract to Joan O'Donnell.   After Mr. Elmore sent out a pre-publication announcement for In Search of Nampeyo, Ms.O'Donnell sent Museum staff a draft letter on January 12, 2015 that she intended to send to Mr Elmore.  This email message included a reference to  Museum's Photographic Policies cited above and the website link.  On that day and the next she got feedback from Museum staff, none of whom recommended that she remove the reference to the Policies and the website link.  In fact, Kara Schneiderman, the Director of Collections wrote "...it sounds like we do need to clarify what he may have been told or if pertinent policies were communicated."  As you can see by looking at this email chain Ms. O'Donnell removed the Photographic Policies reference and website link before sending an email to Mr. Elmore, only referencing the Permission to Photograph Collections form in her letter.  Thus, Mr. Elmore was left to go back to the contract he had signed and was left wondering what Harvard meant when they said he did not have permission to use his photographs. 

I will write more about what I perceive as Harvard's abuse of the legal system in another blog entry, but here is a taste of how they have conducted themselves throughout this lawsuit.  Prior to the first hearing in this case, the hearing in which Harvard was granted a temporary injunction against In Search of Nampeyo,  Mr. Elmore answered many interrogatories (written questions put to one party by the other party and that must be answered), delivered all requested discovery documents to Harvard, and was deposed for seven hours.  Although Mr. Elmore had submitted interrogatories to Harvard and requested many discovery documents needed to defend himself, he had not one document prior to the injunction hearing.  Why?  Because Harvard asked the judge for an extension until after the hearing date, claiming that editor Joan O'Donnell was having "cancer surgery" and was not well enough to gather documents.  Ms O'Donnell did not, in fact, have cancer and did not need the long extension granted her.  Harvard now uses testimony Mr. Elmore gave in this hearing against him, quoting answers that would have been much different had he had the benefits of discovery and deposition that Harvard enjoyed.  For instance, Harvard states "At the preliminary injunction hearing, Elmore admitted he did not follow this process and never even looked at the policy" as if he purposely ignored them.  In reality, he first learned of the existence of these policies at the injunction hearing.  

For this Motion For Summary Judgement, the judge must decide if the facts and the law are clear and unambiguous such that he feels confident making a ruling without a trial, or whether there are substantive unresolved questions that must be submitted to a jury.  In making this decision, the judge is to construe the evidence in favor of Mr. Elmore.  I have discussed above one of the issues under dispute.  Here are some other points of contention argued by both sides in these  documents:

*Whether the Formal Notification Letter is an Accord.

*Whether Promissory Estoppel applies.

*Whether the free offer of 10 - 15 existing photographs from the Peabody Museum has the clear meaning that Mr. Elmore could not use his own photographs.

*Whether the substitution in Mr. Elmore's published text of a slightly different view, taken in the same photo shoot, of the "jack-in-the-box" is excluded from the return of "all rights".

*Whether Mr. Elmore's manuscript is actually a "work made for hire" as the Letter of Agreement states.

*Whether all the provisions of the Letter of Agreement Mr. Elmore signed with the Peabody Museum Press, that set out the terms under which the book would be produced and published, remain in effect after the book is rejected and "all rights" are returned to Mr. Elmore.

*Whether the fact that the editor herself submitted some of Mr.  Elmore's photographs for approval and they were approved in terms of publication quality has a bearing on the case.  Along with this is a question as to whether the Advisory Board's stated desire to "be very liberal" with letting Mr. Elmore use his own photographs has a bearing on this case.
 
Here are Mr. Elmore's Reply to Harvard's Motion and Harvard's Response to Mr. Elmore's Reply. 

We expect a ruling within the next few months.  There is a settlement hearing scheduled for the end of August in which the two sides can try to come to a mutually agreeable settlement of the case.


If you haven't already, please sign this petition on change.org asking Harvard to drop charges against Steve Elmore and to stop suppressing In Search of Nampeyo:  Free Nampeyo Petition

 This is the seventh in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with photography and publication of museum artifacts,  abuse of the legal system, and estoppel.

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