Concussion Inc. Tells Court ‘Further Delaying Tactics’ in California Public Records Act Case For Documents in 2014 Death of Cal Football Player Ted Agu ‘Are Unacceptable’

by Irvin Muchnick

After months of meeting and conferring, my attorney Roy Gordet and lawyers for the respondent University of California Board of Regents are submitting separate case management statements to Alameda County Superior Court in my now nearly year-old California Public Records Act lawsuit for withheld internal university documents related to the 2014 death of UC Berkeley football player Ted Agu.

As this article was being published, UC had not yet filed its case management statement. The full text of ours (dated last Friday, February 16) is below. (The reference to FERPA is the Federal Educational Records Privacy Act.)

As stated in the previously filed Joint Case Management Statement: “The parties have agreed to stage discovery, including preliminary preparation by Respondent of a partial or complete Vaughn Index or other measures to provide Petitioner with sufficient discovery concerning basis for claimed exemptions. Additional written or oral discovery as deemed necessary in light of the foregoing. All designed to conduct discovery as efficiently as possible.”

Respondent has now decided to retract this promised undertaking and refuse to prepare and serve an index or log with information about the allegedly exempted documents because allegedly it will violate FERPA. The CPRA and case law support the preparation of such an index in this case.

Approximately one week ago, the parties conferred and it was decided that the parties would file a Joint Case Management Statement with each side providing its own insert…. On Tuesday, February 13, Petitioner provided to Respondent the following insert:

Petitioner’s Portion

Any possibility for preliminary production of a partial or complete Vaughn Index, as stated in the Initial Joint Case Management Report of November 8, 2017, collapsed when Respondent failed to meet their own stated deadline for communicating a proposal, and also failed to return follow-up messages. Further discussion of this matter between the parties no longer holds any promise of serving efficient adjudication of the dispute.

Petitioner requests that the Court compel Respondent to prepare and serve a Vaughn Index, identical in format to similar productions in California Public Records Act and Federal Freedom of Information Act cases. Petitioner respectfully requests that the Court promptly issue an Order to this effect. If requested by Respondent or it is the Court’s preference, the parties can submit papers addressing any issues that the Court would like to have briefing on.

In setting a deadline for the production of a Vaughn Index, Petitioner does not believe that the Court should weigh the complex bureaucracy of the University of California as an acceptable excuse for further delay. The multiple sign-off parties for the Vaughn Index are the same administrators who already have been extensively involved in this matter, both from the April 6, 2016, date of Petitioner’s original CPRA request and in the now ten (10) months since the Petition was filed before this Court, during which time there has been no progress. Therefore, Petitioner respectfully asks the Court to require that Respondent have a deadline of thirty (30) days from the date of the Court’s Order for production and service of the Vaughn Index.

***

Respondent represented that Respondent would provide Respondent’s proposed insert for the CM Statement by Thursday, February 15. On Friday, February 16, Respondent sent a message that it wished to delay the filing of the Case Management Statement due to a potential new development that Respondent believed could potentially “impact” the case. Petitioner requested that the parties proceed with the planned filing of the Joint Statement. If important information surfaces before or after the Case Management Conference, Respondent could so inform the Court, but the Statement needed to be filed without delay.

Respondent replied that if Petitioner was so concerned about the delayed filing of a Statement that Petitioner should file its own Case Management Statement. And so Petitioner is filing this Statement on its behalf only.

This case needs to move forward. Further delaying tactics are unacceptable.

==========

Concussion Inc.’s ebook THE TED AGU PAPERS: A Black Life That Mattered — And the Secret History of a Covered-Up Death in University of California Football is available on Kindle-compatible devices at http://amzn.to/2aA2LDl. All royalties are being donated to sickle cell trait research and education.

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/

“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