MSU fights search warrant in Nassar inquiry

Kim Kozlowski
The Detroit News
Robert Young

Michigan State University has filed a motion to quash a search warrant served against it by the Michigan Attorney General's Office as part of an investigation into the school's handling of sexual abuse allegations against disgraced sports doctor Larry Nassar.

The search warrant was served Tuesday, days after special prosecutor William Forsyth alleged that MSU is blocking his investigation by failing to turn over documents.

MSU officials counter they are cooperating with the investigation launched Jan. 27, and have turned over to the AG reams of documents and witnesses for interview. But they are not turning over some documents the university classifies as privileged communication with an attorney.

In MSU's motion to quash, filed Thursday in Ingham County's 54-B District Court, it says that while the university has reached a $500 million settlement in principle with over 300 accusers of Nassar, the settlement is not final and litigants continue to file claims. Additionally, the university anticipates litigation with insurance carriers.

"The Attorney General must understand that the university cannot waive these protections," according to the motion.

Andrea Bitely, spokeswoman for the AG's office, declined to comment, citing the ongoing investigation.

A hearing on the MSU's motion to quash will be held July 13 before Judge Richard Ball.

The legal battle comes during the same week that the White House said President Donald Trump would choose the replacement for retiring Supreme Court Justice Anthony Kennedy from a list that includes MSU General Counsel Robert Young. 

“We stand behind our previous position on this issue, that the attorney general is not entitled to examine our lawyer’s communication and legal advice to the university," Young said in a statement. 

The search warrant specifically asked for "all files prepared and maintained by Kristine Zayko related to meetings with MSU staff about matters within the scope of this investigation, including meetings with or about William Strampel and Larry Nassar." 

Zayko was MSU’s deputy general counsel until stepping down in May. Strampel was Nassar's boss and dean of the osteopathic medical school.

The search warrant also asked for all email, text messages, instant messages and documents identified as privileged by Michigan State, including Zayko's files.

"After the court receives the documents, the Department of Attorney General is asking the court to review these materials for the proper assertion of privilege," the search warrant says. "Moreover, the department is asking that all items found to be privileged be returned to the university and all items that are found not to be privileged be provided to the Department of Attorney General."

In MSU's motion to quash, attorney Scott Elderidge of Miller Canfield, Paddock and Stone wrote that the warrant "in no uncertain terms, demands that the university produce records protected by the attorney-client and attorney work product privileges."

"No exception to these privileges has been identified or applies," Elderidge wrote.

MSU's Board of Trustees requested the investigation in January, as Nassar was in the middle of nine days of victim impact statement from more than 200 young women who accused him of sexual assault under the guise of medical treatments. He is now incarcerated in a federal prison in Tucson, Arizona.

Forsyth has charged Strampel with using his position  to harass, discriminate, proposition, intimidate and sexually assault female students. A judge bound Strampel over for trial this month for fourth-degree criminal sexual conduct, misconduct in office and two misdemeanor counts of willful neglect of duty.

.MSU spokeswoman Emily Guerrant said the university is willing to share "all of the privilege material with the judge and allow him to determine, case by case, if the materials are protected by privilege."   

“We have been cooperating with the attorney general’s investigation, and will continue to do so," Young said. "We are willing to share the documents in question with the judge if he wishes to individually review our privileged communications and make an independent opinion on the issue. This continues our cooperation in the investigation and also does not waive our attorney-client privilege.”