Judge questions independence of UM's investigation into doctor

Four months after the University of Michigan hired an outside law firm to conduct an inquiry into alleged sexual abuse by the late Dr. Robert E. Anderson, the independence of the investigation is being questioned by a judge.

On Friday, U.S. District Judge Victoria Roberts ordered lawyers representing alleged victims of Anderson and the university to work out parameters of the investigation by the firm UM hired, WilmerHale, so it does not interfere with the proceedings of lawsuits pending against the university.

She expressed skepticism that WilmerHale is independent from the work being done by Jones Day, the law firm UM hired to defend it in the lawsuits against the university, due to an agreement UM made with WilmerHale about the scope of its work.

Roberts said she has never in 23 years on the bench had a lawyer refuse a request to have a party join a hearing to sort through legal issues. She was referring to her request that UM President Mark Schlissel join a status conference to explain a letter he sent to potential victims and the roles of the two law firms in dealing with the issues involving Anderson, who allegedly assaulted hundreds of former students during his decades of work at the university.

"There is a need to get a better handle on the independent investigation and how it fits into this litigation," Roberts said, noting that information-gathering is currently suspended in the case.

"The independent investigation is potentially going to cover a number of matters that are at issue here," she continued. "With the stay of discovery in place here, I just have a question whether the independent investigation is going to allow the university, despite the stay of discovery, to engage in a form of discovery that could benefit it in this litigation. That is a question, among others, that is worthy of consideration."

UM spokesman Rick FItzgerald said the university would address the concerns.

"We will carefully consider the discussion from today’s hearing and work with the mediator to identify a mutually agreeable path forward in this matter," FItzgerald said.  "The university has confidence in the integrity of WilmerHale’s investigation and hopes that the parties can swiftly reach an agreement that will allow that important work to resume."

The issue arose last month when plaintiffs' lawyers expressed concerns about UM contacting potential victims of the doctor in the middle of litigation against the university — and without the university alerting possible victims that lawyers are available to represent their interests, and that they can join the judicial proceedings.

Some of the alleged victims contacted by WilmerHale included those who are already represented by lawyers, but they did not have them present during questioning, attorneys said during the hearing.

Anderson had a career that spanned more than three decades at UM as a physician, which included stints as director of the university health service and athletic team doctor. He retired from UM in 2003 and died in 2008. Sexual abuse allegations against Anderson emerged in February and since then scores of men have come forward, along with a few women.

More than 80 lawsuits have been filed against UM by former Attorney General Mike Cox, and several other lawyers have also filed suits. At least one of the filings seeks class-action certification, and several other lawyers say they represent hundreds of victims still intending to sue.

UM has acknowledged his crimes and said it intends to settle with the victims.

Mediation in the cases is expected to begin in September.

Advocates for sexual abuse victims lobbied UM in March to ask Michigan Attorney General Dana Nessel to investigate what happened that allowed Anderson to allegedly abuse so many victims. But Nessel said she would not conduct an investigation unless the university waives attorney-client privilege. 

UM hired WilmerHale, a move that was blasted by victim advocates even though the university said the firm would produce a non-privileged report that would be delivered to the public and Board of Regents simultaneously. 

The March 21 letter of engagement between UM and WilmerHale noted that its work would be done under attorney-client privilege, Roberts said during the hearing.

"Any communication that it has with not only the university but with attorneys for the boards are privileged, and so a question: What prohibits a discussion from WilmerHale and Jones Day from occurring that WilmerHale can say is covered by the attorney-client privilege that is set forth in that engagement letter?" Roberts said.

It is important to resolve the issues around the independent investigation sooner rather than later, she said, because the credibility of that investigation is crucial.

"It would be unfortunate if, when (the report) is released in October, the issues surrounding the independence of it have not been resolved such that the underpinning of whatever recommendations are made are challenged," Roberts said.

She also said: "It does trigger some responsibility to put guardrails around that investigation."

In June, UM reached out to 300,000 alumni who attended the school during Anderson's tenure and asked them to speak to officials from WilmerHale about any inappropriate behavior by Anderson. The letter was signed by Schlissel. In April, the university made a similar move by sending out communications to 7,000 athletes.

"President Schlissel authored a letter that his attorneys cannot address in this case, making it perfectly legitimate for this court to request his presence in ... a status conference," Roberts said.

She added that her request is different than a request for the UM president to be present at a public settlement conference; he prevailed in arguments that he should not have to attend such a meeting in a case last year involving sex abuse allegations against a student.

"This is a simply, early in the litigation status conference that the court would like someone with knowledge to appear," Roberts said. 

Roberts also asked Stephen Cowen, a lawyer with Jones Day, whether he thought the WilmerHale investigation was a "totally independent and neutral investigation."

It is "absolutely" independent from the work that Jones Day is doing, Cowen said.

"(WilmerHale) has sole discretion and control over what they are doing and certainly we are not involved in that at all," Cowen said.

Roberts countered: "But not independent from the University of Michigan and Board of Regents."

Cowen countered that under the terms of the agreement, the Regents play no role in the investigation.

"The Board of Regents does not direct or influence or control the investigation," he said.

Cowen also added that he did not think it was necessary for Schlissel to attend a status conference.

"We are completely on board with trying to work this out," he said.

Lawyers such as Rochester-based attorney E. Powell Miller have expressed concern over UM's independent investigation.

UM is conveying a message to potential victims that they don't need the judicial process since the university is going to give them counseling and an investigation, he said, calling the university's move a way to "discourage participation in the judicial process."

But Fitzgerald pointed to a court filing by a lead investigator of WilmerHale, declaring the firm "has taken care to maintain its independence from any litigation relating to Dr. Anderson’s alleged conduct."

"To that end, we have had no contact with the University’s outside litigation counsel, including Jones Day, about the investigation WilmerHale is conducting or about any litigation against the University relating to Dr. Anderson," the document said.

Roberts said she had the authority to subpoena individuals to her courtroom to address unanswered questions but asked the parties to work it out among themselves. A follow-up hearing is scheduled for July 29.

"We are pleased that Judge Roberts is actively overseeing the case and ensuring that the rights of all victims are protected," Annika K. Martin of Lieff Cabraser Heimann & Bernstein LLP, interim class counsel in the Anderson case, said in a statement afterward. "Our goal as always is to provide all victims an opportunity to be heard and obtain justice, while creating lasting change at the University of Michigan to prevent this type of abuse from ever occurring again.”

kkozlowski@detroitnews.com