Hints of Developments in the Belfast Project Case

There are hints of new developments in the Belfast Project case in an article published yesterday in The Heights, a student newspaper at BC.

First, BC’s spokesman says that the College is still deciding whether to appeal. This is somewhat surprising to me, given that BC did not seek a stay of the judge’s order. On the other hand, BC may just be trying to ensure that its appeal doesn’t get heard together with Moloney & McIntyre’s, since there is obviously no love lost between the two camps.

The rules provide 60 days to appeal (the usual thirty-day rule does not apply, because the United States is a party to the case). Judge Young’s first order—the order on the first subpoena, requiring production of the Dolours Price interviews—was entered on December 27, 2011, so BC has until February 27 to appeal. An appeal of this order, however, seems unlikely. Judge Young’s second order—the order requiring production of a broader range of documents responsive to the second subpoena—entered on January 20, so BC does not have to decide on an appeal until March 20.

Second, in the food fight between BC and Moloney & McIntyre about who made what promises to whom, there seems to be an interesting new nuance. Recall that there are two relevant contracts: one contract between BC and Moloney, the other between BC and the interviewees. The BC/Moloney contract expressly notes that the promise of confidentiality may be limited by US law. The BC/interviewee agreement does not. Let’s leave aside the point about whether that omission matters, or whether, on the other hand, a reasonable person would have known that the promise of confidentiality would have to yield to a subpoena. Why is the reference to US law in one agreement and not the other?

BC’s spokesman says that the BC/interviewee agreement was written by Moloney. McIntyre, on the other hand, says the BC/interviewee agreement was written by BC.

“The interviewees were given a contract drawn up by Boston College that stated that they had the ultimate power of release,” McIntyre said in an interview.

On the other hand, Dunn stated that the University made no such promises, and in fact informed Moloney and McIntyre of the risk of subpoena and the danger such a situation could pose to the archives. He admitted that the language “to the extent that American law provides” was not found exactly in the donor agreement, but stated his belief that the contract was drawn up by Moloney, not BC.

“BC warned Moloney and McIntyre explicitly of the threat of a subpoena,” Dunn said. “However, BC could not extend the warning to the interviewees because we did not interview them, and we never met them.”

So which is it? I don’t know that it makes any difference to the pending litigations, but it is clearly a point of contention for the parties themselves. I should add that I would be surprised if BC would allow a BC researcher to draft a contract that binds the University without putting it through a legal review.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012.

5 thoughts on “Hints of Developments in the Belfast Project Case

  1. Ted,

    Always good to read your thoughts on these subpoenas, and on that food fight surrounding them. The other thing to consider about this new claim from BC — that Moloney wrote the donor contracts — is that it’s a new claim in an area that BC has discussed before. The article you’re writing about here was published on Feb. 15, but look how the same reporter summarized Dunn’s claims in an article published in the same student newspaper ten days earlier:

    “Though participants signed contracts that promised them privacy ‘to the extent that American law allows,’ project supervisors Ed Moloney, an Irish journalist, and Anthony McIntyre, a former IRA member, have been harshly critical of the University’s stance in international media.”

    So on Feb. 5, maintaining that Belfast Project interviewees were given a warning about the possibility of a breach of confidentiality due to legal proceedings, Dunn apparently made no mention of this claim that BC had nothing to do with interviewee contracts. The Feb. 5 story doesn’t describe a claim that Moloney wrote those contracts; the Feb. 15 story does, and does so after Dunn was forced to admit that the contracts didn’t say what he claimed they said.

    And as you say, how plausible is it that BC consented to a process that bound them to a contract they hadn’t seen, created, or reviewed?

    Very strange stuff.

    1. Chris, thanks for the comment. I continue to think this is an interesting sideshow, though ultimately irrelevant to the issues being litigated. And I still think that if the question is who is to blame for the fiasco, the facts show that both Ed Moloney and BC share some of the blame for the interviewees’ misunderstanding (as, in my view, do the interviewees themselves).

  2. Ted,

    I disagree. BC made it very specific – as you can see from the loyalist input to the Heights article – that the material was beyond court order. How Ed Moloney or the interviewees can be blamed for that is beyond me. Of course it can now be argued that an institution clearly unworthy of trust – which Jack Dunn is the personification of – was trusted. I think you make a crucial poiont in your article – what university will allow researchers to draw up a contract in its name?

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