We’ve Been Assigned Our Third Judge in Three Years in the California Public Records Act Litigation For UC Berkeley’s Ted Agu Football Death Cover-Up Documents

by Irvin Muchnick

The Alameda County Superior Court is scheduled to rule next month on our motion for the internal public relations strategy memos in the 2014 Ted Agu football conditioning death cover-up that Solly Fulp, then the deputy athletic director at the University of California-Berkeley, sent, for no known reason, to his father Ian Fulp.

In Concussion Inc.’s California Public Records Act lawsuit against the UC Regents, the university is claiming that the Fulp email is protected by attorney-client privilege.

Yesterday the parties learned of a new development: Judge Jeffrey Brand will not be ruling on the motion because the case has been moved to the docket of another judge. The motion and the remainder of the case are now in the hands of Judge Patrick McKinney. The court explained that earlier this month Judge Brand moved from the Hayward to the Oakland courthouse.

This marks the second midstream reassignment of the litigation, which we filed in April 2017. Late that year we were seeking UC’s production of what is known in public information law as a Vaughn Index — a comprehensive listing of withheld documents and the public agency’s claims for exemption from disclosure. The university argued that the Federal Educational Records Privacy Act prevented a Vaughn Index, or even a ballpark estimate of the number of pages of concealed records. From the bench, the judge at the time, Kimberly Colwell, expressed skepticism about this position but ordered full briefing of the issue.

That briefing wound up being reviewed and ruled upon by a new judge, Brand. The court gave no explanation for the change in judges. Brand decided in UC’s favor and there was no Vaughn Index.

This year Brand issued a second major ruling against our side when he decided — after a second go-around of briefs because he still couldn’t decide in the original briefing — that the university didn’t have to release a 141-page binder of Berkeley campus police reports surrounding the Agu death and aftermath. According to the judge, the binder constituted records of a police criminal investigation, which are exempt under the Public Records Act. Concussion Inc. proceeded to acquire some of the secret binder documents from unnamed campus sources, and published them.

Now a third jurist, Judge McKinney, will be ruling on the status of the so far almost completely redacted email from Solly Fulp to Ian Fulp.

LINKS TO THE BRIEFING IN THIS MOTION

October 31, article about the motion and our opening brief: https://concussioninc.net/?p=14045

FULL TEXT OF THE BRIEF: https://concussioninc.net/?p=14039 (facsimile at http://muchnick.net/attorneyclientmotion.pdf)

MUCHNICK DECLARATION: https://concussioninc.net/?p=14041

GORDET DECLARATION: https://concussioninc.net/?p=14043

November 14, facsimile of UC’s response brief: http://muchnick.net/CPRAucresponse11-14-19.pdf

November 21, facsimile of our reply brief and package: http://muchnick.net/CPRAreply11-21-19.pdf

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