Our New Court Filing For University of California PR Strategy Emails in 2014 Ted Agu Football Conditioning Death Challenges Attorney-Client Privilege Claim on Deputy Athletic Director Fulp’s Message to His Father

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Full Text of Concussion Inc.’s Brief in Alameda County Superior Court Challenging Attorney-Client Privilege of Cal Deputy Athletic Director Solly Fulp’s 17-Page Email to His Father About Ted Agu Football Conditioning Death
October 31, 2019

by Irvin Muchnick

Concussion Inc. has asked Alameda County Superior Court Judge Jeffrey S. Brand to order the production of a 2014 email in which Solly Fulp, the former University of California-Berkeley deputy director of athletics and chief operating officer, sends to “Dad” a string of 17 pages of emails regarding Golden Bears player Ted Agu, who had died two months earlier of an exertional collapse associated with sickle cell trait during an offseason conditioning drill.

In an October 3 deposition in San Francisco, Fulp — now senior vice president at the sports marketing firm Learfield IMG College — admitted that “Dad” was his father, Ian Fulp, a retiree in Alaska who is not a lawyer and has no association with the university. Solly Fulp also did not deny that he sent the message, though he answered variations of “I cannot recall” to almost all questions.

(We earlier uploaded the Fulp-Fulp email chain that is the subject of the court motion. The document can be viewed at http://muchnick.net/sollyfulptodad.pdf.)

At the deposition, Fulp’s memory lapse even extended to the scope of his responsibilities as a high-ranking executive, with a total annual compensation package of more than $300,000, who was part of an email discussion that included then director Sandy Barbour and other Cal Athletics officials; central administration executives, including the chancellor’s public spokesperson Dan Mogulof; and the chief and a lieutenant of the campus police.

Yet the UC Regents, in the latest round of a California Public Records Act (CPRA) case near the end of its third year of litigation, almost fully redacted the Solly Fulp-to-Ian Fulp email on the grounds that it is protected by attorney-client privilege.

In a brief filed today, our attorney Roy S. Gordet told the court: “Respondent cannot meet their statutory burdens to demonstrate that [this email chain] was communicated in confidence, served a function related to legal advice, and that it should be cloaked with any justifiable privilege.”

In my declaration supporting the motion, I pointed out that the Fulp-to-Fulp pere email chain also included two figures whose roles raise, in my journalistic estimation, questions of malfeasance by this public institution — upping the ante in my quest for additional investigative grist via CPRA.

One is Dr. Casey Batten, then the football team head physician, who is documented as having lobbied the Alameda County coroner for a finding of generic heart failure, rather than a sickling attack, in Agu’s death. Batten withheld from the medical examiner at the time, Dr. Thomas Beaver, the university’s knowledge that Agu was a carrier of sickle cell trait. Batten also is shown in other emails, and at a press conference the day of the death, adhering to the PR talking points of declining to address the subject of Agu’s sickle cell trait status out of respect for the late student-athlete’s privacy. (In emails most recently disclosed by UC and explained as having been earlier “inadvertently” omitted, Batten also is shown consulting with the late Christopher Patti, the chief Berkeley campus lawyer.)

A year after what he conceded were inaccurate initial autopsy findings, Beaver, the former coroner, was confronted with the sickle cell trait evidence at a deposition in the Agu family’s wrongful death lawsuit against the university, and revised the findings to reflect that it was a sickling collapse. UC and the Agus then settled the lawsuit for $4.75 million.

Another figure in the Fulp email chain was Marc DeCoulode, the campus police lieutenant who engineered a “do-over” interrogation of Damon Harrington, the strength and conditioning assistant under then head football coach Sonny Dykes, shortly after the Agu death. As the designer and director of the unorthodox February 7, 2014, drill in which Agu perished — along with being the assistant football coach responsible for punishment drills and a program culture that led to the criminal battery of one player by another — Harrington is at the center of the controversy over Agu’s death, and in the coverage by HBO’s Real Sports of the national issue of the pandemic of fatalities in non-contact offseason college football conditioning.

In the transcript of the second campus police interrogation of Harrington, DeCoulode coaches Harrington to give a better answer to a question about whether Agu had a preexisting medical condition; the cop tells Harrington it would look bad if he were perceived as “not telling the truth or being deceptive.” The transcript is part of a secret 141-page binder of campus police reports in the Agu death, which Judge Brand refused to order released in our case. However, I acquired the document independently.

The next posts will have full texts of our brief and of my and attorney Gordet’s supporting declarations.

Comprehensive headline links to our nearly six years of Ted Agu death coverage: https://concussioninc.net/?p=10877

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Concussion Inc. - Author Irvin Muchnick