Washington U to Pay Hefty Attorney Fees

7/5/2011 3:51:00 AM, Jack Bouboushian
     (CN) - Litigation over a University of Washington study criticizing the Baby Einstein video series came to an end last week with attorneys, including Rachel Matteo-Boehm of Holme Roberts and Owen, winning $175,000 in fees for work required to make the university comply with Washington's public records act.

     The saga began in 2007, when University of Washington researchers conducted a study that, according to the complaint, led some to argue that Baby Einstein videos were not merely useless, but "cause harm to young children."
The multimillion-dollar franchise, now controlled by Walt Disney Co., sells videos intended to expose very young children to arts and sciences. It has weathered complaints of false advertising as well as academic criticism.
     On the heels of a slew of negative publicity from the UW study, Clark and his wife and co-founder Julie Aigner-Clark asked that UW provide them with the raw data, statistical methods, and other information underlying the study. Their requests were made under Washington's Public Records Act.
     However, according to the complaint in the case, "The University failed to provide most of the data, thereby depriving the Clarks of the information needed to test the conclusions reached in the article."
     The university alleged time and again that the files requested fell within certain exceptions to the Act, but never fully clarified the legal basis of this contention.
     For example, it pointed to privacy concerns regarding data gleaned from human subjects, but at times took "months to provide records that should have taken only a few days at most to redact and copy," according to the complaint.
     At the end of May, after roughly a year and a half of litigation, Matteo-Boehm and her co-counsel obtained a settlement promising broad access to the data behind the study, in addition to their attorney's fees. Matteo-Boehm and her office worked with Greg Overstreet of Washington's Allied Law Group.
     The settlement requires the university to "provide to Clark an electronic version of the 2007 study data ... except that the data fields showing each individual study participant's month of birth, day of birth, and date of birth shall be left unredacted. The University may also redact telephone numbers."
Clark "agrees [to] maintain the birth dates ... as confidential" and will make "no efforts to contact study participants."
     A June 8th letter prepared by Matteo-Boehm indicates that important revelations have come to light now that UW's evasion of the Public Records Act has come to an end.
     According to the letter, there are discrepancies between raw data received under the settlement and a version of the data provided by the university in 2009.
     "In light of these discrepancies," Matteo-Boehm wrote, "it appears that the University and/or its researchers may not only have breached their obligations under the Settlement Agreement, but may have engaged in other improper conduct, including but not limited to perjury and/or tampering with public records and spoliation of evidence.
     "Suffice it to say, the settlement between the parties is very much in jeopardy. As a matter of sound scientific principles, the three copies of the raw data should be identical."
     In its response, UW merely called the discrepancies "regrettable."
     The struggle is continuing, as Matteo-Boehm followed up on June 20. Among other critiques of UW's apparently continuing evasiveness, Matteo-Boehm wrote that "the University's assertion that it 'has only one set of raw data for the 2007 Study' flies in the face of the reality that Mr. Clark now has two data sets in his possession."
     Though the letter requests reimbursement for some of Clark's out-of-pocket expenses, Matteo-Boehm notes that "despite the University's shocking conduct during this entire matter ... our client has decided to comply with the terms of the settlement and move on."
     Updates and relevant documents prepared by Matteo-Boehm and her co-counsel are available here.