I, Irvin Muchnick, under penalty of perjury, declare as follows:
1. As explained to the Court in earlier declarations, I am the Petitioner in this action, and a published journalist and book author.
2. At the October 3, 2019, deposition of Solomon Fulp (“Fulp”) in this case (“Fulp 2019 Deposition”), Fulp stated that he had been deposed on September 23, 2015 in the civil lawsuit brought by the family of the late Ted Agu (“Agu”) against Respondent. I obtained a copy of that earlier deposition transcript (“Fulp 2015 Deposition”). Exhibit 3 submitted herewith consists of discrete pages from the Fulp 2015 Deposition.
3. Exhibit 4 consists of pages from the Fulp 2019 Deposition transcript. Though Fulp stated in the Fulp 2019 Deposition that he did not recall the scope or specifics of his duties as University of California-Berkeley Deputy Athletics Director and Chief Operating Officer at the time of the Agu death, Fulp did elaborate on these responsibilities during the Fulp 2015 Deposition. These included being the executive to whom then head football coach Sonny Dykes (“Dykes”) reported (Fulp 2015 Deposition, pp. 10-11, Exhibit 3), as well as being one of the executives who approved the hiring of Damon Harrington (“Harrington”), the strength and conditioning coach under Dykes and the central figure in the public controversy over the circumstances of the Agu death (Exhibit 3 Fulp 2015 Deposition, p. 9). Fulp had significant responsibility concerning many of UC-Berkeley’s actions in the wake of the Agu death. Fulp appeared to be a central executive in all of this and evidently was entrusted with sensitive information for a purpose related to whatever UC-Berkeley expected to accomplish that motivated these persons in the email thread in Exhibit 1 to generate such an extensive communications dialogue among so many persons with high responsibility within the UC-Berkeley administration. It is fair to conclude that Fulp was participating precisely because he was a part of the executive team.
4. In addition, in the Fulp 2015 Deposition (Exhibit 3), Fulp:
5. The facts in preceding paragraphs 3 and 4 are critical to my journalistic investigations of what I have described as cover-ups in the Agu death, and of what I characterize as a pandemic of non-contact conditioning deaths in college football. As referenced earlier in this case with the submission of the report on this subject on the HBO magazine program Real Sports, the Agu death is an integral part of a national public issue.
6. In turn, the 17-page chain of redacted emails that is the subject of this Motion (“Exhibit 1”) potentially sheds crucial light on this subject, in general, and on the specific aspects of the subject outlined above in particular. The redacted contents of Exhibit 1, on their face, are at the very heart of the purpose of this Petition.
7. Accordingly, I reviewed Fulp’s message (Exhibit 1) in an attempt, to the best of my interpretive abilities, to break down for the Court’s consideration areas where a favorable ruling in this Motion is likely to serve to enhance public understanding of the circumstances of the Agu death and the background of the subsequent civil lawsuit payout by Respondent of $4.75 million in public funds. Information plausibly contained in the redactions has tremendous potential relevance to my investigative journalism.
8. In my review of Fulp’s message (Exhibit 1), the senders and recipients appear to include, in addition to Fulp and his father, the following:
Athletic Departmental — On information and belief, this was a distribution list of employees of Cal Athletics, although Fulp at in the 2019 Fulp Deposition testified that he did not know who or what this referred to.
Sandy Barbour (“Barbour”) — At that time, the Director of Athletics.
Herb Benenson, Kyle McRae, and Wesley Arnold Mallette — Public relations officials of Cal Athletics
Phillip L. Esten and Ryan Cobb — Like Fulp, executives under Barbour at Cal Athletics.
Brad Buchman — Director of University Health Services.
Casey Batten, M.D. (“Batten”) — Head football team physician.
Dan Mogulof — Campus Assistant Vice Chancellor, Executive Communications.
Margo Bennett and Marc DeCoulode (“DeCoulode”) — Respectively, the Chief and a Lieutenant of the campus police department.
Christopher Patti, Campus General Counsel
9. The predominant subject lines the emails within Exhibit 1 which were dated April 21 through April 23, 2014, “Ted Agu – Cause of Death (Statement, Talking Points and Q&A),” appears to indicate, in the pattern of other, unredacted emails produced elsewhere by Respondent, a discussion and edits of a public relations message in anticipation of the upcoming release of the Agu autopsy findings by the Alameda County Medical Examiner.
10. My ongoing investigative journalism on the Agu death, and on surrounding events before and after — some of such reporting based on documents produced by Respondent both before and after the filing of the Petition, and some based on documents independently acquired by me — implicate football team physician Batten and campus police lieutenant DeCoulode in possible public agency malfeasance.
11. Batten, ostensibly, lobbied the Alameda County Medical Examiner for a false finding of hypertrophic cardiomyopathy in the Ted Agu death, while at the same time failing to disclose to the Medical Examiner the university’s knowledge that Ted Agu was a carrier of sickle cell trait. Batten also had participated with other university spokespersons in the delivery of “talking points,” immediately following the Ted Agu death, which deflected questions about the deceased student-athlete’s sickle cell trait status. The Medical Examiner at the time, Thomas Beaver (“Beaver”), was presented with new evidence during his deposition in the Agu family lawsuit, whereupon Beaver conceded that he had not been aware that Agu was a sickle cell trait carrier and agreed to undertake the extraordinary procedural step of revising the already official and finalized autopsy report to reflect that the death was, in fact, from “ECAST”: exertional collapse associated with sickle cell trait. I have discussed these important issues in “TED AGU PAPERS: County Coroner Testified That Cal Doctor’s First-Day Spin, Plus Concealment of Players’ Police Statements, Impeded Death Investigation,” May 29, 2016, https://concussioninc.net/?p=11127; “Cal Football Doc Casey Batten Spun, Lobbied, Misled Coroner in Ted Agu Death. Only Question Is: Did Batten Do This on His Own?”, September 12, 2018, https://concussioninc.net/?p=13240; “See It Now — Full Transcripts of the Depositions Showing That University of California Football Team Doc Casey Batten Misled the Alameda County Coroner on the Cause of the 2014 Death of Ted Agu,” September 13, 2018, https://concussioninc.net/?p=13247.
12. In the investigation in the aftermath of the Agu death by the Berkeley campus police, DeCoulode ostensibly directed and “coached” strength and conditioning coach Harrington in a second interrogation to elicit responses less potentially damaging to the university. Campus police reports document immediate references, including in the very first line of the very first response call, to Agu’s “pre-existing medical condition” and sickle cell trait status. I discussed these issues in “Berkeley Campus Police Lieutenant’s Second ‘Clarifying’ Interrogation of Conditioning Coach Damon Harrington Adds to Evidence of Role in Ted Agu Football Death Cover-Up,” March 12, 2019, https://concussioninc.net/?p=13691; “See It Now: In ‘Do-Over’ Interrogation, Berkeley Campus Cops Lead Football Strength and Conditioning Coach Damon Harrington to Answers About Ted Agu’s Sickle Cell Trait That Avoid ‘Not Telling the Truth or Being Deceptive’,” March 13, 2019, https://concussioninc.net/?p=13696; “Ted Agu’s ‘Pre-Existing Medical Condition’ Was in First Sentence of Berkeley Campus Police Incident Report — New Find From University of California’s 141-Page Collection of Cover-Up Documents,” March 19, 2019, https://concussioninc.net/?p=13712.
13. Accordingly, having access to the unredacted content of the emails in Exhibit 1will probably shed light on important issues related to how UC Berkeley acted in the aftermath of the Agu death and why it was eventually decided to make the substantial payment to the Agu family. These are issues at the heart of what I have been investigating and reporting on over the past five years.
14. On June 1, 2018, Respondent produced Bates page numbers UC0085-UC0090, consisting of a copy of the entire 2016 settlement agreement in the Agu family’s wrongful death lawsuit against Respondent. True and correct copies of the first two pages of that document showing the Section 1542 waivers by both parties are submitted as Exhibit 5.
Executed at Berkeley, California on October 30, 2019