MSU says Nassar investigators getting all the "facts." Judge disagrees.
Michigan State University says the public doesn’t need to worry about the 6,000 documents the school’s withholding from investigators in the Larry Nassar sexual abuse case. University officials say that’s because a judge reviewing those documents will turn over any “factual information” about the Nassar case to those investigators.
But, in an unusual move, that judge spoke to Michigan Radio about his review of MSU’s internal documents. And his comments don’t appear to support the university’s claims, which leaves investigators saying they could still be missing critical information about how the university handled the Nassar case.
A legal battle between MSU and the attorney general’s office
The big question in this case is pretty simple: Did Michigan State University cover up evidence that former sports doctor Larry Nassar was sexually abusing patients? And if so, how high up did it go?
Last year, in an effort to finally lay those questions to rest, MSU’s trustees publicly asked the Michigan attorney general’s office to investigate, and pledged their “full cooperation.”
But investigators say they have not received full cooperation.
While MSU has allowed the special investigators to review more than 105,000 documents, former special prosecutor William Forsythsays many of those were “irrelevant documents” meant to “drown” the investigators, “such as the University’s Bed Bug … policy, various restaurant coupons” and other “unresponsive” materials.
MSU also refused to release thousands of documents, claiming they were protected under attorney-client privilege. So investigators got a search warrant. MSU objected, and the fight over those “privileged” documents went to court.
MSU says, don’t worry: all the Nassar evidence will be turned over
Enter Judge Richard Ball of District Court 54B in East Lansing. He’s no stranger to the Larry Nassar case: last March, he presided over the arraignment of Nassar’s former boss, William Strampel, on charges of sexual misconduct, willful neglect of duty, and felony misconduct in office.
But in this case, Judge Ball isn’t determining whether somebody’s guilty of a crime. He’s like the umpire, calling balls and strikes: Yes, MSU can legally withhold this document under attorney-client privilege, or no, that one can't be withheld.
And attorney-client privilege isn’t as broad as most folks think. When it comes to documents, it’s not enough to just cc your attorney on an email and assume that makes it privileged (although MSU did try that, the attorney general’s office says.) Legally, it’s only privileged if it’s 1) between a client and their attorney, 2) is seeking or offering legal advice and 3) isn’t carrying out a crime.
But according to MSU spokeswoman Emily Guerrant, Judge Ball’s review will also ensure anything “factually related to the AG investigation” is “turned over” to investigators.
That’s because only the legal advice in these MSU documents is privileged, Guerrant says.
“It can’t be both – it’s either legal advice or facts,” she wrote in an email last week. “If it’s one document/email/whatever that has facts in it and then later has legal advice – just the legal advice would be redacted out. So if it’s facts – then Judge Ball can give it to the AG.”
And that’s why the public can trust MSU isn’t withholding information about the Nassar case from investigators, Guerrant says.
But the attorney general’s office says, there’s plenty of reason to worry. Just because a document is privileged, investigators say, doesn’t mean there aren’t important facts in it as well.
“Anytime you seek legal advice, legal opinions are based on facts, and when you ask me for an opinion, those are part of our attorney-client information,” Assistant Attorney General Christina Grossi said Monday. “For them [MSU] to say there’s never a fact that’s not going to get out [is wrong.]”
Judge Ball settles the debate on one issue
If anybody knows what Judge Ball deems privileged, it’s Judge Ball.
Surprisingly, he took my call.
“[I’m] not looking for whether there’s information that might be of interest to the AG,” Judge Ball said, adding that he’s just determining whether a document can, legally, be withheld under attorney-client privilege.
Right. Everybody agrees on that. Problem is, what's privileged?
So I ran a hypothetical past the judge: Let’s say I’ve got a long email chain, and in one part of that chain I’m definitely seeking or offering legal advice. But in another part of that chain, I’m talking about facts in the Nassar case. Would he allow the whole chain to be withheld from investigators?
Probably, he says.
“If MSU had claimed privilege on the entire document, it wouldn’t be unusual for me to approve that whole document [as privileged] and approve not handing over the whole document,” Ball explained.
In other words, the judge seems to be saying, if any part of an MSU document is privileged, he’ll often allow MSU to withhold the whole thing - even if it includes facts about the Nassar case.
But how many documents are actually being turned over?
While Judge Ball said he was a little “foggy” on the exact numbers, he said he had reviewed “thousands of documents, email chains, email messages, and text messages” from MSU.
But a lot of those didn’t even need to go through the “privileged or not privileged” test, he said.
“Before I did that, the attorneys for MSU had determined that a good many of those [documents] would be voluntarily turned over,” he said.
Yet according to the AG’s office, MSU has released just 1,000 of the 7,000 documents the university initially claimed as privileged.
Judge Ball said he thought MSU had turned over more documents than that, but that those numbers could be in the right ballpark.
Later, the judge again indicated that many of the MSU documents he received had voluntarily been given to investigators by the university - so he didn't have to look at them too closely.
“By the time I got those documents, the [MSU] lawyers had turned over a good portion of them, so I did not make the determination of whether the [privilege] assertion was properly asserted,” he said.
Judge Ball also repeatedly recommended that Michigan Radio seek out MSU’s attorney in this case, Scott Eldridge, as a knowledgeable expert in this legal area.
Reached by phone, Eldridge says while he’s flattered by Judge Ball’s high opinion, he can’t comment on the case.
AG’s office concerned, but MSU stands firm
The attorney general’s office expressed surprise and concern about the judge’s statements - especially if he was “way off” on how many documents were actually being released.
“It’s extremely unusual for a judge to talk to a reporter about a matter that’s still before the judge,” said Kelly Rossman-McKinney, the spokeswoman for Attorney General Dana Nessel, told Michigan Radio on Monday in a conference call with the AG’s Chief of Staff Laura Moody and Assistant Attorney General Christina Grossi.
Before Judge Ball began his review, Grossi said, MSU voluntarily produced about 1,000 documents it had initially claimed were privileged. But Grossi says according to the university’s own court filings, it’s withholding some 6,492 documents.
Rossman-McKinney said their office would be following up with the court on these numbers.
MSU spokeswoman Emily Guerrant said the university “can’t weigh in here on the numbers” of documents that are being voluntarily turned over to investigators, since that is “constantly changing and being updated.”
But she said the university’s general counsel was still firm on one point: Judge Ball will give any facts about the Nassar case to the AG’s investigators.
Even if that’s not what Judge Ball says.
“If there are facts in there that are related to the [Nassar] case, he [Judge Ball] will hand those over to the attorney general, that’s my understanding,” Guerrant said Tuesday.
Attorney-client privilege “doesn’t protect facts, and it doesn’t protect underlying information in the document,” Guerrant said. “So we’re standing by the theme that he’s going through and reviewing to make sure those documents meet the definition of privileged.”
What the public is missing in this debate, Guerrant says, is that a neutral third party is already reviewing MSU’s privileged documents - something she says people have been asking for at recent board meetings.
But according to Judge Ball, his review may not mean investigators will necessarily get all the information they want.