Michigan State University says it’s entering a new era, one defined by greater transparency and accountability. Former interim president John Engler is out, along with his general counsel, Bob Young. A new healing fund for survivors is in the works.
Listen above to hear Kate Wells interview with Stateside about the missing documents.
But the school is still refusing to hand over some 6,000 internal documents to special investigators, saying they’re protected under attorney-client privilege. Ironically, those are the same investigators the trustees actually requested to come look into the Nassar case last year.
“Only a review by your office can resolve the questions in a way that the victims, their families, and the public will deem satisfactory and that will help all those affected by Nassar’s horrible crimes to heal,” the trustees said in a letter last January to then-Michigan Attorney General Bill Schuette. “...We stand fully ready to cooperate with your review.”
Well, not so much, according to the man who did that investigation. Not when trustees are denying investigators access to those 6,000 internal documents.
“Sometimes in life, in my mind, things are more important than money and finances,” prosecutor Bill Forsyth told reporters in December, when he was wrapping up his job as the AG’s independent special counsel who looked into MSU for nearly a year. “And in this case, the survivors and the public, I think, deserve to know what happened here.”
One reporter asked Forsyth: so, what if MSU never waives attorney-client privilege and releases the documents? We just never find out what happened?
“You’re never going to know,” Forsyth said. “It’s very simple. There is nothing you can do to change that.”
What’s in these documents?
So what’s so special about these 6,000 documents that MSU won’t turn them over to investigators?
That’s what we asked Trustee Dan Kelly at a January board meeting.
His answer: those documents don’t have anything to do with the facts of the Nassar case.
“First of all, when we assert the attorney-client privilege, it’s with regard to the opinions of the [school’s] attorneys,” Kelly says. “It’s not with regard to the factual basis. We turned over the factual documentation, we certainly turned over all of our digital information, cell phones and so forth.”
Let’s break that down.
Legally, only documents where a client is seeking legal advice, or the attorney is actually providing legal advice, are covered under attorney-client privilege.
So Kelly’s saying that those 6,000 documents are just a bunch of legal discussions, not anything “factual” or specifically related to who knew what about Larry Nassar, and when.
But if there’s nothing to hide, why not just be fully transparent and release them to the special investigators?
Two words: insurance litigation.
“Well, when we’re suing, when we’re in litigation with an insurance company, I don’t believe the insurance company is entitled to the legal opinions of our attorneys,” Kelly said. “I don’t believe they are.”
MSU’s high stakes legal battle
Ok, “insurance litigation” is not the sexiest reason. But go with this, because it gets interesting.
Remember last spring, when MSU settled with more than 300 of Nassar’s survivors for $500 million? And then everybody wondered, where the heck was MSU going to get that kind of money, not to mention the millions of dollars in ongoing legal bills?
Well, Michigan State University sure hopes the answer is: insurance. Specifically, its insurance for sexual assault cases.
Did you know Michigan State carries sexual assault insurance? It sure does. Also insured: drones. Athletes with traumatic brain injuries? You bet. Terrorism? Sure.
And, right there on page 11 of MSU’s policy with insurer United Educators, it lists “sexual molestation, sexual assault, or rape” in its coverage.
Except, according to MSU’s lawsuit, none of its insurance carriers are paying a dime for the Larry Nassar cases thus far.
“No Defendant Insurer has paid any amounts whatsoever to reimburse MSU for costs incurred in connection with the defense and settlement of MSU’s liability arising out of Nassar’s conduct,” the school’s attorneys argued in the suit filed in July.
So this lawsuit is MSU’s way of saying: pay up, insurance companies.
If MSU didn’t report Nassar, then no insurance money
But, like all insurance policies, there’s some fine print in the school’s sexual assault policies. If you look at the United Educators policy, there are two crucial loopholes.
Loophole #1: If a school leader or mandatory reporter knew about Larry Nassar’s sexual abuse, but didn’t report it to the “proper authorities,” then the insurance carrier is off the hook. MSU is “excluded” from coverage in this case.
Loophole #2: If the school finds out about Larry Nassar’s sexual abuse, but they don’t tell the insurance carrier right away, then, the same thing: the insurance carrier doesn’t have to pay a dime.
In other words, insurers lose a lot of money if they have to cover MSU’s legal bills in the Nassar case. So they have a lot of motivation to prove MSU either hid Larry Nassar’s abuse from authorities, or from insurers.
Just like Michigan State University would also have a lot of motivation to try keep that kind of evidence from insurers. Which is where the 6,000 internal documents come back into play.
“Unless there are things they’re hiding…”
If there is no cover-up, no smoking gun, then why would these documents hurt the school in its insurance lawsuit?
“I guess I don’t quite understand that,” newly-elected MSU Trustee Kelly Tebay said last month. “Unless, like you said, there are things they’re hiding. Which I haven’t seen yet, but those are really things that we, as an institution, as leadership, need to look at.
“I feel very strongly about setting a tone that...if you’re part of that culture of, you know, you have an employee that files a complaint, and you somehow find a way to cover that up? If that’s found out, you’re out,” Tebay said. “If there’s a way for us to clean house, if you don’t want to be part of this new Michigan State, then it’s time for you to go.”
But how much money is transparency worth?
Here’s the conundrum, though: if there is no cover-up, and the 6,000 documents really are just a bunch of legal advice that might give the insurers a leg up in court, is it worth MSU releasing them and potentially losing millions of dollars?
That’s what Brianna Scott is trying to figure out. Like Tebay, she’s also a newly elected MSU trustee.
“I just met with Rachael Denhollander, and she was saying the same thing: short of releasing these things, people are probably never going to be completely satisfied,” Scott said in January.
“But we also have a fiduciary duty to not do that, at the risk that we lose the money to keep the school going. If we were to be excluded [by the insurance companies] based on some exclusionary requirements that MSU maybe didn’t do, or people they needed to contact at a certain time, or little tiny technicalities like that - if we were to lose $500 million because of things like that, we have to weigh whether or not that’s worth it.”
Scott is hoping there’s a third option: maybe the three new trustees could go through the 6,000 internal documents themselves, and assure the public that “it has nothing to do with any of the things they think...are being hidden.”
Scott says she knows that’s not a perfect solution. Even if survivors felt they could trust the new trustees, they may not know what to look for. Only the independent special counsel (the investigator in the AG’s office) knows what a smoking gun would look like, because only the special counsel has done a year-long investigation involving hundreds of interviews and thousands of documents.
So far, those investigators have built criminal cases against former MSU employees, including former president Lou Anna Simon, with evidence that might seem totally innocuous out of context: emails or meeting agendas with a few handwritten notes, for instance.
Scott says that’s why MSU may want to hire a special investigator. That way, as an MSU employee, the investigator could examine those 6,000 documents without MSU having to waive attorney-client privilege. Maybe, Scott says, the former special investigator himself, Bill Forsyth, would be willing to take the job?
“Maybe it is bringing in Bill Forsyth! Or maybe it’s bringing in somebody who worked with him,” Scott says. “But I’m just trying to find a happy medium, because I don’t think, as much as you may wish that they would completely waive privilege, I don’t see that happening.”