MSU obstructing probe, prosecutor says
A special prosecutor has threatened to seek a search warrant against Michigan State University for documents investigators believe are “critical” in determining how school officials handled allegations surrounding disgraced sports doctor Larry Nassar.
The attorney general's office said MSU is "wrongfully withholding information" as well as constructing its communications in a way that obscures them for review. But the university countered that it is cooperating while asserting attorney-client privilege in withholding some documents and redacting parts of others.
The accusations are made in a series of letters exchanged beginning in April between William Forsyth, who was appointed in January by Attorney General Bill Schuette to oversee the independent Nassar investigation at MSU, and Robert Young, a former state Supreme Court chief justice who now serves as general counsel for the university.
Schuette named Forsyth in response to a request from the MSU trustees for an independent investigation of the school's actions regarding Nassar, a former MSU physician who is serving a de facto life term after pleading guilty to sexual assault and child pornography charges.
The Detroit News obtained the letters through a Freedom of Information request to the Attorney General's Office.
Andrea Bitely, a spokeswoman for the Attorney General’s office, said she could not comment on whether Forsyth had obtained the search warrant he threatened in the June 15 letter. Forsyth said he has not received the documents he needs to do his review, alleging that the university's initial response was to provide scores of "irrelevant" documents, such as the school's bedbug control policy.
Reached Wednesday night, Emily Guerrant, an MSU spokeswoman, defended the school's response to the investigation but declined to discuss Forsyth's statements.
"Without knowing more specifics on what exactly MSU is accused of withholding, it's hard for me to comment," she said. "We have handed over more than 75,000 documents to the AG's office, and have been thoroughly cooperating with their investigation."
The dispute between the special prosecutor and Young, Interim President John Engler's hand-picked legal counsel, comes amid growing calls for Engler's ouster. At least two trustees and multiple political leaders have called on Engler to resign for insensitivity toward Nassar's victims, and one trustee has implied he would try to convince colleagues to fire the former governor at Friday's meeting of the Board of Trustees.
Joel Ferguson, vice chairman of the board, declined to comment on the letters Wednesday night. The other members of the board did not immediately respond to requests for comment.
Though Forsyth said he met with Young in late March, in an April 11 letter to Young, he accused the university of continuing to block his investigation by behaving in a manner that "impedes this office's ability to fully evaluate the propriety of the university's assertions of privilege."
At the heart of the issue is the university's privilege log, which lists the documents MSU claims it can legally withhold. According to Forsyth, the log totaled nearly 200 pages as of June 15 and covers more than 1,500 emails. Forsyth questions whether all of those documents qualify for protection.
In a May 24 letter to the MSU Board of Trustees, Forsyth asked the university to reconsider its assertion of privilege, saying the Nassar case is "unparalleled in our time" and the university "stands at the very center of those events."
"You must decide whether it best serves the interest of the people of the State of Michigan — to whom you owe a fiduciary duty — to withhold information in response to an inquiry by the State's Attorney General," Forsyth wrote "If you decline to waive the university's privilege, it will be virtually impossible to determine MSU's role in the events surrounding the Nassar matter."
In a June 8 letter, Young responded that Forsyth is overstepping his authority.
"It is shameful for the Attorney General to demand access to the university's legal advice because we both understand that you are not entitled to that advice and no court in the country would ever compel the university to give you access," the MSU lawyer wrote.
Young added that the university is working closely with the state, and only a small fraction of documents have been held back as privileged.
"The fact is we are and have been cooperating," Young wrote. "To date, MSU has produced 46,245 documents to your office. Of these, only 256 documents have been fully withheld as privileged and another 176 have been produced partially redacted for privileged communications: fewer than one percent."
Forsyth wrote back June 15, saying his concern that the university was trying to circumvent the investigation had been heightened because of a communication between trustees chairman Brian Breslin and other board members.
"Our concern that MSU might be improperly withholding information was heightened by an email produced by the university from Chairperson Breslin to his fellow trustees discussing non-privileged information but directing them to copy legal counsel on their response in order to 'protect client privilege.'"
Young’s reluctance to release the communications runs counter to the university’s promise to cooperate with law enforcement, said John Manly, a lawyer who represents the majority of women and girls who sued MSU, USAG Gymnastics and other institutions for failing to protect them from Nassar's sexual abuse.
Manly added that Breslin's advice to trustees to copy attorneys on their communication to avoid its disclosure is evidence of further “obfuscation and stonewalling.”
“If you wonder how Larry Nassar happened under this board, well, that’s your answer,” Manly said.
The special prosecutor asked in April for a judge to review of documents for which MSU claims attorney-client privilege to determine whether they should be revealed or protected.
"These concerns are of critical import because the Privilege Log reflects that numerous emails involving key individuals in our investigation (for example, members of the Board of Trustees, former President Simon, Vice President Bill Beekman, Provost June Youatt, and Associate Provost Terry Curry) have been withheld," Forsyth wrote Young on April 11.
One document involving former MSU gymnastics coach Kathie Klages is specifically called into question.
"For example, the Privilege Log states that Document MSU-AG-0132987 has been withheld based on the 'attorney-client privilege,' Forsyth writes. "The document is described as an 'email chain requesting information to assist in rendering legal advice regarding Nassar litigation.'
"The email chain is between Kathy Klagas (sic) and Tracy Leahy (dated December 13, 2016). While no job title has been provided for Ms. Leahy, her LinkedIn profile indicates that she has been the Senior Institutional Equity Investigator and Deputy ADA Coordinator for Grievances at Michigan State University since 2015. Based on her job title, it's unclear how Ms. Leahy could have rendered legal advice to Ms. Klagas in 2016."
In his June 8 letter, Young said Forsyth had improperly sought privileged information from MSU and "coupled that demand with the implicit and tawdry threat that the Attorney General will publicly and politically embarrass the board if it fails to give into your demand."
"On so many levels, this latest demand brings shame on you, the Attorney General and our legal profession that is expected to model and show respect for the Rule of Law," Young wrote. "It is hard to think of a more sacred American legal principle than that a party is entitled to the honest advice of its lawyers and the inviolate assurance that that advice will be confidential and protected.
"That privilege is, as the United State Supreme Court has said, 'the oldest of the privileges for confidential communications known to the common law ...," Young wrote.
The decision to waive attorney-client privilege is not an easy one, said Peter Henning, a Wayne State University constitutional law expert. Once that privilege is waived for one group, it's waived for any other lawyer, journalist or citizen who requests the same information, he said.
“The problem isn’t so much Forsyth as everyone else who might sue MSU,” Henning said.
Attorney-client privilege covers anyone who works for the organization, even communications between two employees, as long as the subject matter encompasses legal advice, Henning said.
On the other hand, he said, “just putting an attorney on the cc list does not make it privileged.”
Henning said a search warrant like the one proposed by Forsyth — in which a judge sorts through the contested information to exclude the privileged pieces — is a way to speed up the process while still maintaining MSU’s privilege.
The letters were released on the heels of a meeting Friday at which the MSU Board of Trustees will consider appointing Young as permanent general counsel.
Engler appointed Young, a longtime political ally, in February as the lead counsel assigned to coordinate the numerous investigations involving MSU’s handling of the allegations against Nassar and Title IX lawsuits that have been filed against the school.
Critics questioned Young's rulings on sexual assault cases while a high court justice after he was appointed.
He went on to serve as the university's chief negotiator of a $500 million settlement between the university and Nassar's accusers.
Staff Writer Jonathan Oosting contributed