Complete headline links to our series on the wrongful death lawsuit by the family of Cal football’s Ted Agu: https://concussioninc.net/?p=10877
by Irvin Muchnick
We’ve been exploring why the San Francisco Chronicle’s lead Page 1 story on January 30, “UC admits liability in death of athlete,” failed to examine an obviously relevant parallel incident in the history of Cal football’s out-of-control strength and conditioning coach, Damon Harrington. Just three months prior to Ted Agu’s February 2014 fatal collapse during an extreme conditioning drill directed by Harrington, the coach had been at minimum a bit player, and at maximum a contributory instigator, in the beatdown of another player, Fabiano Hale, by teammate J.D. Hinnant after Hale skipped a weightlifting session — giving rise to collective punishment by Harrington.
According to the Chronicle article, depositions in the Agu case were “obtained by UC Berkeley’s Investigative Reporting Program and shared with The Chronicle.”
I told Lowell Bergman, director of the Investigative Reporting Program, that it is not intuitive that at least some depositions, in examining Cal football’s conditioning program, didn’t focus on the Hinnant-Hale incident. Indeed, the Agu family’s attorneys should be sued for malpractice if they didn’t aggressively investigate this angle, since it establishes a pattern of coaching staff irresponsibility.
In an email exchange, Bergman said, “We suggest that while we provided certain information and editorial guidance, the reporting and editing was done by a Chronicle writer and editor.”
Jim Bouton, the pitcher-turned-author, once edited an anthology of baseball pieces entitled I Managed Good, But They Sure Played Bad. I’m not sure the Berkeley graduate school is imparting a good lesson to aspiring journalists by saying, in effect, “We leaked good, but the Chronicle sure wrote bad.”
In my view, the Investigative Reporting Program has an obligation to publish in full the Agu case depositions in its possession, so that we can all see what the Chronicle left out. The background to all this is almost surely a gambit by the plaintiffs’ attorneys to get into circulation embarrassing information about the defendant, in service of the goals of this private litigation. It’s possible that, at the same time, the recipients of the information treaded carefully on more ambitious information that goes to the larger public interest — either in their independent judgment or, more likely, as a condition of using the information.
Bergman said he would take “under advisement” the notion of releasing the full depositions.
Lowell Bergman, of course, is the famed investigative journalist who was portrayed by Al Pacino in the tobacco industry thriller The Insider. His brother Martin Bergman is another story.
Marty was the “fixer” who is alleged to have suborned the testimony of a star witness in the federal government’s unsuccessful 1994 prosecution of WWE mogul Vince McMahon on charges of conspiracy to distribute steroids. Bergman, a freelance tabloid TV producer, had recently married McMahon’s lead defense lawyer, Laura Brevetti, in a ceremony officiated at City Hall by then-mayor Rudy Giuliani. In 2013 Brevetti would become general counsel of WWE, now a publicly traded company on the New York Stock Exchange. See the section “The Defense Lawyer, the ‘Fixer,’ and the Playboy Model” in “Linda McMahon’s Husband Vince Fought the Law, and the Law Lost,” December 28, 2009, https://concussioninc.net/?p=4644.
As for the law on public availability of depositions in civil lawsuits, it is gray. Depositions that become exhibits in filed motions to the court get loaded into the court record. A review of the record in Agu v. The Regents of the University of California shows that there are no such documents here.
But absent a protective order, depositions aren’t exactly private, either: parties to the action “may” share them with others. That almost certainly explains how these depositions came into the possession of the Investigative Journalism Program. Plaintiffs’ lawyers often feed material of this sort to sympathetic journalists, but the gambit went awry here with the Chronicle’s half-assed account of the odious Harrington. (As this story was being published, Bergman, managing editor Tim McGirk, and senior reporter/lecturer Abbie Van Sickle had not commented on our speculation as to how they got the depositions.)
Should there prove to be impediments to official release of the depositions down the road, rest assured that I am prepared to argue, in state court if necessary, that a compelling public interest in their content trumps their ambiguous privacy. Especially since — as we now know — the depositions were already selectively leaked.