NEW TED AGU PAPERS: As Public Records Act Case Awaits Court Moves on 141-Page Campus Police Report in 2014 Football Death, A New Outline of Internal University of California Emails Is Revealed

by Irvin Muchnick

Last week Concussion Inc. analyzed University of California emails that were released in August in our Public Records Act lawsuit for additional documents arising from the 2014 conditioning drill death of football player Ted Agu.

Today I turn to another batch of emails — totaling nearly 400 pages — that UC produced earlier this month.

As noted here three days ago, an important case management conference is set for next Thursday before Judge Jeffrey S. Brand. We are asking the court to set a briefing schedule for the question of whether UC should be forced to produce a 141-page Berkeley campus police report, or collection of reports, generated in the wake of the Agu fatality. We have informed the court, as we earlier did the university, that we independently obtained the text of the table of contents of that document. There will be another report here on this prior to next week’s hearing.

The September document release, the subject of this story — part of an earlier order by Judge Brand for the respondent to disclose additional material “on a rolling basis,” as it is identified and cleared — is the potential subject of a future dispute in the case. This is because, in almost all the emails offered up, the university has given up only the date/time, “from,” “to,” “cc,” “subject,” and (where applicable) “attachments” fields at the tops of emails, with the claim that all or the bulk of their text content is subject to attorney-client privilege. But for right now, since we have requested the court’s focus on the 141 pages of campus police documents and to suspend all other activity in the case, we are simply analyzing what we received.

The volume of the production is not as large as it sounds. These are group emails with a lot of non-substantive forwarding and concatenating. By my crude count, there is a total of 55 base emails from two broadly defined periods:

• anticipation of the Alameda County medical examiner’s findings of cause of death in the Agu autopsy, and the development of talking points and public relations as the coroner’s report gets released to the public;
• the end game of the Agu family’s wrongful death lawsuit against UC, which resulted in a $4.75 million settlement — communications laying the groundwork for approval of the settlement at an “interim” (and hence non-public) meeting of the board of regents, and coordinating the announcement and messaging with the plaintiffs and their attorneys.

As I said, there is almost no text in this production below the subject lines. In one exception, on April 21, 2014, Cal athletic director Sandy Barbour writes to aide Ryan Cobb and football team physician Dr. Casey Batten, “Not sure what this means for how we handle the team.” The subject line is “Ted Agu – Cause of Death.”

Later the same day, John Wilton, then the vice chancellor for finance and administration, writes to campus police chief Margo Bennett and another recipient, “I wonder if we should bring Dan M into the picture?” Dan Mogulof is Cal’s assistant vice chancellor for public affairs — the chief campus media relations person.

All told, there are around 40 total recipients of the collection of emails: athletic department and central administration officials (including the late chief campus counsel, Christopher Patti, whose presence is undoubtedly central to the claim of attorney-client privilege), others at the UC office of the president, and outside lawyers and consultants.

Of keen interest to the Agu narrative are the emails involving athletic director Barbour and team physician Batten. What happened before and after Agu’s death has long been exposed as a cover-up in at least three aspects.

Chronologically, the first of these was the cover-up of the November 1, 2013, criminal beating of player Fabiano Hale by teammate J.D. Hinnant, on the watch of Damon Harrington, the assistant coach for strength and conditioning under then head coach Sonny Dykes. Harrington also designed and supervised the February 7, 2014, punishment drill that killed Agu, and whistleblower testimony ties the two events to Harrington’s intentional shift in the culture of his conditioning program.

The second cover-up was Batten’s misleading of the medical examiner with respect to Agu’s status as a sickle cell trait carrier; this caused, for more than a year, an official finding of cause of death as generic heart failure when it was actually an exertional collapse associated with the sickle cell trait.

The third cover-up was the concealment from the county sheriff (and I would argue, the district attorney as well) of the bulk of the 141 pages of campus police reports that are now the focus of my CPRA case.

What we learned from the university’s August “rolling basis” document production is that there is no longer a shadow of a doubt regarding Batten’s misconduct. At the exact time the team physician was, in adherance to a university scripted Q&A, warding off media questions on the known fact that Agu was a sickle cell trait carrier, Batten was lobbying on the phone with coroner Thomas Beaver to nudge him toward a quick finding of “hypertrophic cardiomyopathy” — and not enlightening Beaver that Agu carried the trait.

On September 12, I wrote, “Cal Football Doc Casey Batten Spun, Lobbied, Misled Coroner in Ted Agu Death. Only Question Is: Did Batten Do This on His Own?”, https://concussioninc.net/?p=13240.

This new email batch could bring us closer to answering that question — that is, a better understanding of any level of institutional coordination or collusion or conspiracy.

Again by my crude count, Barbour is involved in 10 of the newly revealed 55 emails. She was possibly in an additional 25, if the recipient “Athletic Departmental” refers either to Barbour personally or to a email distribution to a group of department staffers. (Barbour is now the athletic director at Penn State.)

Batten is found in 32 emails. (He is now on the medical staff of the Los Angeles Rams.)

On April 22, 2014, deputy athletic director Phil Esten emailed Dr. Batten, “Can you give me a call when you have a second? Cell is best — thanks.”

On  June 9, 2014, Batten initiated emails to Mark DeCoulode, a campus cop, and to Barbour, campus counsel Patti, police chief Bennett, and Dr. Brad Buchman of University Health Services.

On February 9, 2016, at the start of the family lawsuit settlement end game, Batten initiated an email to Buchman, with cc’s to a host of Berkeley campus and office of the president officials, with the subject “Agu – Draft Media FAQs – CONFIDENTIAL/ATTORNEY-CLIENT PRIVILEGED.”

On March 30, 2016 — just prior to the settlement announcement — Batten sent an email to lawyer Patti only with the subject “ATTORNEY-CLIENT PRIVILEGED INFORMATION TIME SENSITIVE: Fwd: TIME SENSITIVE: Agu / Press Release.”

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2017 op-ed article for the Daily Californian on my Public Records Act lawsuit: http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/

Second op-ed article for the Daily Californian (published May 4): http://www.dailycal.org/2018/05/03/years-later-questions-remain-regarding-football-player-ted-agus-death/

“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,” https://concussioninc.net/?p=10931

Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877