Full Text of Our Reply Brief on University of California’s Arrogant Refusal to Produce a Substantive Legal Response in Public Records Act Litigation Over Ted Agu Football Death Cover-Up Documents

The previous post explained the latest development in my California Public Records Act lawsuit.  Below is the full text of today’s brief by my attorney Roy Gordet, followed by Gordet’s supporting declaration. A facsimile of the brief is viewable at http://muchnick.net/cpraprivacymotionreply.pdf; the declaration is at http://muchnick.net/gordetprivacyreplydec.pdf.

The opening brief of this motion was published and linked on June 12 at https://concussioninc.net/?p=13003.

The university’s non-response “response brief” can be viewed at http://muchnick.net/ucprivacyresponse.pdf.

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I. Introduction and Relief Requested

Respondent mocks Petitioner and this Court’s procedures by unilaterally deciding that Respondent has the right to set the schedule for how this case should proceed notwithstanding Petitioner’s properly noticed Motion. Respondent has intentionally and in bad faith refused to respond on the merits to Petitioner’s Motion. The purpose for formulating a list of categories was to enable Respondent to more efficiently search for responsive documents. Once a document is located, like the 141-page campus police report that admittedly cannot be protected under FERPA, the category it may fall into is irrelevant to any privacy issues related to that document. In any case, Respondent does not have the right to dictate the substance, the timing, or the structure of a motion filed by Petitioner. For the reasons stated, Petitioner requests that the Court order Respondent to immediately produce to Petitioner the 141-page campus police report, to immediately produce to Petitioner all non-privileged documents related to the Agu litigation settlement agreement, and to file and serve the overdue response on the merits to Petitioner’s Motion within nine court days of the Court’s Order thereon. Depending on Respondent’s imminent actions, Petitioner reserves the right to seek further remedies, including sanctions, for Respondent’s contempt of the Court’s procedures.

II. Respondent’s Unjustified Refusal to Respond on the Merits Permits the Court to Grant Petitioner’s Motion

A. Timeline of this Motion

This Motion was filed on June 11, 2018. As expressly stated in the Motion, the Court in its Tentative Ruling had invited either party to file a motion addressing certain privacy issues. In open Court, the Court assented that Petitioner’s Motion could also specifically demand the disclosure of the 141-page campus police report that Respondent has until very recently claimed no certain knowledge of. The parties also agreed in open Court, again with the Court’s assent, that as Respondent came across additional documents to disclose, Respondent would disclose same to Petitioner on a “rolling basis” prior to the next scheduled Case Management Conference on August 1. (Gordet Declaration ¶ 8) As of the date of filing this Reply Memorandum, Respondent has not disclosed a single additional document. (Gordet Declaration ¶ 9)

As set forth in the email correspondence submitted as Exhibit 1 with Respondent’s unjustified request for postponement of this Motion, inaccurately captioned by Respondent as a “Response,” Respondent requested that Petitioner withdraw its Motion on June 21, 2018. Respondent sat on its hands until July 19, 2018. On the afternoon of the last day under CCP Section 1005 that its Response was due, Respondent served its “Response”.

B. Respondent’s Decision to Not Move for a Continuance or for a Protective Order Establishes Respondent’s Continued Bad Faith Dilatory Tactics

As noted previously by the Court, Respondent has an affirmative obligation under Gov. Section 6253.1(a) to work collaboratively with Petitioner to meet the goals of the California Public Records Act in furtherance of Petitioner’s legitimate investigative journalism goals. Instead, as has been demonstrated in earlier pleadings, Respondent prefers to put up roadblocks and to delay at every turn. At the last hearing, the Court acknowledged that further delay diminishes and undercuts what Petitioner seeks to achieve, and this Petition should proceed at a more rapid pace. (Gordet Declaration ¶ 10) Notwithstanding, although it appeared to be of dubious justification, in line with previous dubious similar claims of short staffing etc. in the Public Records Department of Respondent, Petitioner begrudgingly assented to having the next deadline for disclosures set for August 1. (Gordet Declaration ¶ 7) Respondent’s delay and concomitant refusal to respond to this Motion on the merits was an abuse of Petitioner’s cooperation.

If Respondent were genuinely motivated to move this case forward, and if Respondent sincerely believed these purported reasons it has offered up in lieu of responding on the merits, Respondent had well-established and superior alternatives to waiting until the very last day to file its nonresponse. Respondent had the following alternatives:

i. Ex Parte Application for a Continuance

California Rules of Court Rule 3.1103(b) [Rules 1.10 and 2.20 apply in law and motion proceedings] provides that a party may make application for good cause for a continuance to take any action required under the Rules of Civil Procedure. To gain its strategic advantage, Respondent elected to eschew this more efficient approach for the obvious reason that it may have resulted in the Court rejecting Respondent’s illogical interpretation of the Order vis-à-vis the Tentative Rulings. And it would probably have had the result of requiring Respondent to file a response on the merits in advance of the August 1 hearing date, as required under CCP Section 1005.

ii. Ex Parte Motion for Protective Order

Alternatively, under California Rules of Court Rule 3.1201, Respondent could have promptly brought this matter to the Court ex parte to vindicate those reasons espoused in the email correspondence attached with Respondent’s non-response to this Motion as Respondent’s Exhibit 1. Instead, by taking no action for more than five weeks, Respondent guaranteed that it will have significantly more time to respond on the merits and continue its well-honed obstructionist tactics of weaving staggered issues as described in this Motion’s opening Memorandum. These delay tactics go back to Petitioner’s original Public Records Act requests beginning in April of 2016. (See Paragraphs 6 – 9 of Petition.) By granting the relief Petitioner seeks by this Motion, specifically the disclosure of the 141-page campus police report and all non-privileged correspondence surrounding the Agu Settlement Agreement, the Court will allow Petitioner to promptly resume his investigation and reporting on the underlying events and will also enable both parties and the Court to see what other documents may need to be disclosed and to see what other documents may have been wrongfully withheld.

III. Production of the 141-Page Campus Police Report Is in Keeping with Respondent’s General Public Records Act Disclosure Practice

A. Respondent Has Already Disclosed a Campus Police Report to Petitioner Related to this Petition

Submitted as Exhibit H with the original Petition is a UC campus police report related to the altercation between Hinnant and Hale. As noted from the face of the document and as alleged in Paragraph 8 of the Petition, this campus police report was disclosed by Respondent’s PRA department to the Daily Cal months before it was disclosed to Petitioner. In any case, it is clear that Respondent discloses campus police reports without suffering substantial harm. Moreover, basing a refusal to disclose on a ground that actually contradicts a pattern of practice of disclosure under the CPRA has been held to be obstructionist conduct. See State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1193. Respondent accepted this possibility (of forced disclosure) when Respondent took the strategic step of refusing to move ex parte for either a continuance or a protective order, and ultimately refusing to respond on the merits under CCP Section 1005. Moreover, Respondent’s position stated in open Court that it was uncertain of the existence of this campus police report is perplexing. But this is in keeping with Respondent’s tactics of feints, diversions, new theories, newly found documents, etc. as set forth in this Motion’s Memorandum. Respondent’s delay in producing the 141-page report is prejudicing Petitioner in reporting on these events in a timely manner. The campus police report should be disclosed immediately.

B. In Camera Review is an Acceptable Alternative in the Interim

Alternatively, as a way of moving this matter forward without further delay and if the Court has concerns about a disclosure detrimental to Respondent, the Court should order Respondent to lodge the 141-page campus police report with the Court for an in camera review pursuant to Government Code Section 6259(a) To be clear, Petitioner is not advocating, at least not yet, that the Court undertake an in camera review of all the documents that Respondent claims or may eventually claim are exempt. Rather, this in camera review could immediately resolve to some degree a main issue of Petitioner’s pending Motion and, if the Court agrees that the campus police report should be disclosed, will allow Petitioner to move forward because it appears that this report will be significant to Petitioner’s investigation. It will also demonstrate to Respondent there are consequences for abusing and undermining the procedures on which Petitioner and the Court rely.

Petitioner’s counsel informed Respondent on June 25, 2018 that Petitioner’s counsel set the return date of the Motion to coincide with the previously set August 1 Case Management Hearing. in order to consolidate and make the motion and hearing procedure more efficient for all concerned, including the mere setting of the return date (Gordet Declaration ¶¶ 3 and 4) Moreover, Respondent’s counsel was also informed on June 25, 2018 as noted in the email correspondence submitted by Respondent, Petitioner would be severely prejudiced by a continuance of the August 1 hearing date for the reason that Petitioner’s counsel, in reliance on the August 1 hearing date set by the Court, purchased tickets to Sydney, Australia for a combined business and vacation trip from August 4 to August 26. (Gordet Declaration ¶ 5) Petitioner was entitled to set this date. It was not for Respondent to override this scheduling of the Motion without seeking leave of Court. As a consequence of Respondent’s brazen and manipulative conduct, and it order that Petitioner not be further prejudiced, it is reasonable for the Court at a minimum to order the immediate disclosure of the campus police report for the Court’s in camera review and eventually order disclosure of the report to Petitioner as soon as the Court completes its in camera review.

IV. Correspondence Surrounding the Agu Litigation Settlement Agreement Should Be Disclosed

For virtually the same reasons set forth in the preceding section, Respondent should either produce immediately all documents related to the Agu Settlement Agreement (itself a document that Petitioner has inexplicably withheld until recently), or should produce these associated documents for immediate in camera review by the Court. The Agu Settlement Agreement could not have existed in a vacuum, i.e. there must be correspondence documents, internal emails, etc. If there are attorney client privileged documents, the Court should order that Respondent immediately confirm the existence of such attorney client privileged documents and further order Respondent to prepare and serve a privilege log within 30 days of the date of the Court’s Order.

V. The Weak Reasons for Refusing to File a Response on the Merits Demonstrate Respondent’s Bad Faith

A. Respondent Incredibly Claims It Needs to Determine Categories Before Responding to the Privacy Arguments Surrounding the Campus Police Report

Respondent claims that it should be excused from responding to the privacy issue arguments because this will be part of its report on categories requested by the Court that it has until August 1 to complete. But the Court’s original Tentative Rulings made very clear, and as was made even clearer in colloquy in open Court, the privacy issues are separate from the category issues. The Court specifically requested clarification from both parties about the privacy issues by separate motion. As for the privacy issues, it matters not which specific categories or list of categories are devised by the Court, by Respondent or by Petitioner. As suggested by the Court, devising categories is only a means to assist all concerned to determine what Respondent should be searching for and to determine if a document is covered by a FERPA exemption. Despite Respondent’s obfuscations and concealments, everyone at long last now knows that the campus police report exists. No one needs to put it in a category in order to search for it, this because we already know it exists. In other words, it does not matter what category the campus police report falls under in order to determine if the privacy arguments and the other arguments set forth in Petitioner’s Motion provide Respondent with a safe harbor for its refusal to disclose this report much earlier. The campus police report is a campus police report – let it be its own category for all Petitioner cares, or part of any category Respondent desires: the issue is, as framed by the Court and as discussed in Petitioner’s Motion: are there privacy issues that prevent its disclosure, or not? Petitioner’s Motion could not have been clearer on this point.

B. Respondent Had No Basis to Claim that It Was Necessary to Complete the Categorization and Production Before Responding

Thus, as demonstrated in the preceding section, there is no need for Respondent to assemble or for the parties to collaboratively finalize the “categories” report before responding to the privacy issues of this Motion. The privacy issues, particularly as discussed in open Court and in the Tentative Rulings, are not dependent on the finalization of the categories or categorizations. Demonstrating how Respondent is wont to shift its positions as suits its purposes, in the email correspondence submitted as Respondent’s Exhibit 1, Respondent argued that the Motion was premature because Respondent will not have completed its document searching until the Court-imposed deadline of August 1. That frivolous argument has fallen away in the “non-response” to Petitioner’s Motion because as of the date of filing this Reply, Respondent has disclosed zero additional documents to Petitioner since the last Court hearing. If there are no further disclosures, or if there are but meager because as of the date of filing of this Reply, Respondent has disclosed zero additional documents to Petitioner since the last Court hearing. If there are no further disclosures, or if there are but meager disclosures, prior to August 1, Respondent is further exposed as merely attempting to stymie and delay Petitioner at every opportunity. Respondent claimed staffing issues for seeking the August 1 due date for its report on categorizations and for further disclosures. (Gordet Declaration ¶ 5) In light of this pending Motion, if Respondent deemed it so vital to complete the search before filing its Response on the merits and to make the Case Management Hearing more meaningful, then Respondent should have sought to speed up the search process, which, it should be emphasized, has so far returned no documents. Respondent is all about adhering to court scheduling when it suits its own purposes, not at all when it does not.

C. The Court’s Order Never Stated or Implied that Petitioner Should Not File this Motion

In the email correspondence submitted as Respondent’s Exhibit 1, Respondent claimed that by omitting from the eventual Order the Tentative Ruling’s invitation to file a motion on privacy, the Court “revoked” its prior invitation. This “revoke” terminology did not make it into Respondent’s non-response to the Motion after Petitiioner exposed in the email correspondence how illogical it is, but a slight modification persists, equally with merit. If Respondent believed its illogical contention that the use of “or” was a pronouncement that the Court no longer wished to hear promptly from the parties on the issue of privacy or the disclosure of the 141-page campus police report, the Court could have easily so stated. There was no reason for the Court to repeat in the eventual final Order the Court’s invitation concerning a possible privacy motion when it was never stated in the Tentative Ruling as a mandate, so there was no reason for it to be included in the final Order.

VI. Conclusion

Respondent has delayed response and downplayed Petitioner’s PRA requests from the outset and has now unilaterally decided it did not have to respond on the merits to Petitioner’s Motion on privacy. Petitioner observes the Rules of Civil Procedure and Respondent has not. The Court must force Respondent to meet its obligations for the reasons set forth. A proposed Order is being submitted.

Dated: July 24, 2018

Respectfully submitted,

Roy S. Gordet

Attorney for Petitioner Irvin Muchnick

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I, Roy S. Gordet, under penalty of perjury, under the laws of the State of California, states as follows:

1. I am a Member of the Bar of California and admitted to practice before all state and Federal courts in California.

2. I am counsel of record to Petitioner Irvin Muchnick in the above-captioned lawsuit. I make these statements based on my personal knowledge, unless otherwise noted.

3. I informed Mr. Goldstein by email on June 25, 2018 that I intentionally set the return date of the Motion to coincide with the previously set August 1 Case Management Hearing.

4. This scheduling was done in order to consolidate and make the motion and hearing procedure more efficient for all concerned, including the mere setting of the return date.

5. I also informed Mr. Goldstein on June 25, 2018 that our side would be prejudiced by a continuance of the August 1 hearing date for the reason that in reliance on the Court’s scheduling of the Case Management Hearing date I had purchased tickets to Sydney, Australia for a combined business and vacation trip from August 4 to August 26.

6. I am a sole practitioner and actually had intended to take this trip in June or July but postponed it in light of the Court’s setting of the Case Management Hearing in this case for August 1, 2018.

7. Respondent in open Court claimed staffing issues for seeking the extended August 1 due date for its report on categorization and further disclosures, and Petitioner assented in a spirit of cooperation.

8. The parties also agreed in open Court, again with the Court’s assent, that as Respondent came across additional documents to disclose, Respondent would disclose same to Petitioner on a “rolling basis” prior to the next scheduled Case Management Conference on August 1.

9. As of the date of filing this Reply Memorandum, Respondent has not disclosed a single additional document.

10. At the last hearing, the Court acknowledged that further delay diminishes and undercuts what Petitioner seeks to achieve, and this Petition should proceed at a more rapid pace.

Executed on July 24, 2018 in Daly City, California

Roy S. Gordet

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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