Falsifiability and perjury

Oh dear. Someone claimed to be an expert in a trial, but refused to back it up.

Over the course of three days, the Court heard testimony from multiple expert witnesses who touted WPATH as the leading authority responsible for developing the prevailing guidelines and standards of care for physicians treating children with gender dysphoria. In an affidavit, one of the Plaintiffs' medical experts stated that WPATH "has been recognized as the standard-setting organization for the treatment of gender dysphoria for more than forty years." [Further details omitted. -EV] ... In other words, the Plaintiffs and many of the amici believe that WPATH is the preeminent leader in the field of transgender medicine for children.

Unsurprisingly, the Defendants sought discovery from WPATH regarding, among other things, the evidence it used to develop its guidelines and standards of care. But surprisingly, the organization allegedly responsible for creating the benchmark for gender dysphoria treatment was not so keen on turning over the evidence it used to develop that standard. WPATH resisted the Defendants' subpoena at every turn. Given its own characterization of its guidelines and standards, one would expect WPATH to welcome the opportunity to put the supporting evidence on display.

That's about as dumb as you can get in Chartertopia. Even objecting to turning over their records is bad enough, malingering at best for wasting everybody's time. But everyone's entitled to a little delay, it's just human nature. "I'm 6'1" tall." — "OK, here's a tape measure." Maybe he's not wearing the lifts he used for his dating profile. But this refusal stretches into defective testimony. All testimony has to be falsifiable — there must be some way to disprove it. Testimony has to be complete. You can't withhold bits and pieces and cherry pick what you say. So it would all have to be thrown out, every single statement bragging on WPATH, leaving them with nothing.

If they kept on insisting on that incomplete unfalsifiable testimony, and insisting that WPATH was the best ever, I don't think it would ever rise to the level of perjury, but it would be malingering, and the other party would shun them — ignore them, write their own verdict, documenting how WPATH refused to cooperate, and that would be the end of it.

In this real world legacy case, WPATH kept digging that hole, and veered into perjury territory.

WPATH initially filed a motion to quash the subpoena arguing, among other things, that the information the Defendants sought was somehow not relevant to the case. Given that "WPATH's guidelines are part and parcel of Plaintiffs' proposed constitutional standard in this case" this Court found that argument preposterous and denied the motion. WPATH then moved to certify that order for an interlocutory appeal and to stay its obligation to produce any discovery until that appeal was resolved. When those motions were denied, WPATH unsuccessfully petitioned the United States Court of Appeals for the Eleventh Circuit for mandamus relief. In denying the petition for a writ of mandamus, the Eleventh Circuit found that the Defendants "demonstrated a compelling need for the information" WPATH sought to suppress.

Although this Court denied WPATH's motion to stay, WPATH nevertheless delayed production, prompting the Court to remind its counsel of that fact at a hearing three months after the motion to quash was denied. ("I also hear you say, hey, Judge, you know, the minute you tell us to start producing, we will. I really have already said to start producing.").

The lines between the instinctive "Say what? Why?", passively stalling to drag things out, and actively trying to obstruct a case, are not always clear, and because these two parties have to negotiate face-to-face, they're going to go back and forth quite a lot. But three months? No, that is clear perjury, hoping to make the other side give up. A few minutes, a lunch break, even overnight or over a three day weekend, that's aggravating but reasonable. A week is too much, and no one should have to wait three months. All that really does is tell everybody you don't have the proof you need. Don't claim that person is on vacation — surely these documents should be readily available to everyone in the office.

Depending on how obnoxious WPATH was about this, it could even rise to compounded perjury. All that testimony, over and over, knowing it was not true and they could not back it up — all individual cases of perjury for those witnesses, with each one owing the full restitution as the issue at stake. Then when the three month malingering turns into perjury, is WPATH's issue at stake all those witnesses' perjuries, piled up, or just the single full restitution? It could, if they were obnoxious enough about it and the winning party thought the public would back him.

Or perhaps all those witnesses had taken WPATH's word for it, and all their testimony was just hearsay, not a lie. That would be interesting. WPATH refuses to back up their testimony, they all realize the danger they are in, and change their testimony to "WPATH says ..." which is hearsay and useless. They'd lose, but at least they and WPATH would never be found guilty of perjury.

In a third step, WPATH did produce "hundreds of video recordings produced by WPATH", and now wanted them all destroyed after the dispute was over. Can't do that. The public can only enforce what it knows, and that includes all evidence. Destroy some of the evidence, and that can no longer be part of the verdict. This real world legacy verdict discusses various rules which require preserving the evidence.

The court noted that the materials were discovery materials that weren't filed in court, so there was no public right of access to them. But there was still the question whether defendants, who had gotten the documents through discovery, should continue to be legally barred from disclosing them. And the court said no ...

Hard to say how this case would play out in Chartertopia, since the whole procedure doesn't map over easily. But WPATH would lose.