by Irvin Muchnick
In the latest of a series of contorted rulings in my California Public Records Act (CPRA) case in the 2014 Ted Agu football death cover-up at the University of California-Berkeley, Alameda County Superior Court Judge Jeffrey S. Brand has decided that an email by former deputy athletic director Solly Fulp to his father, evidently containing 17 pages of drafts and comments by other administrators on public relations talking points, is attorney-client privileged and thus exempt from disclosure.
We published the redacted version of this document at http://muchnick.net/sollyfulptodad.pdf. Therein, Solly Fulp prefaces his forward of the long email string to Ian Fulp — a retired parks and recreation director in Alaska who has no affiliation with the university — by writing “See below.”
“Petitioner has demonstrated that Fulp was a high level employee of the Regents and that Fulp intentionally and purposefully forwarded the email to his father,” the judge wrote in a decision issued on Wednesday. “Petitioner has not, however, demonstrated that Fulp was acting within the scope of his membership, agency, office or employment when he disclosed the email to his father.”
Brand left mostly intact the reasoning behind a tentative decision issued last month — including a typographical error accompanying what he then called a “reasonable inference” from the evidence on the record: “The court finds that Fulp forwarded the email to his father intending it to be a confidential intra-family communication in the nature of ‘Dad, this why [sic] I’ve been so busy at work.’”
(Concussion Inc. has uploaded a facsimile of the ruling to http://muchnick.net/fulpemailruling.pdf.)
The fleshed-out tautology of this decision, which I consider vulnerable to appellate scrutiny, goes like this: (1) Fulp, as a $300,000+-a-year executive, had the authority to waive privilege. Furthermore, (2) he purposefully and intentionally did so. But (3) he wasn’t supposed to! Thus, an outsider is out of luck when he wants CPRA to fulfill its statutory role of giving equal access to what administrators, flacks, the football team doctor, and the campus cops were saying to each other, in writing, about Ted Agu’s wrongful death.
The judge, who also happens to be a Cal undergraduate and law school alumnus, implicitly rejected a preposterous, Five Pinocchios-worthy declaration by the chief counsel for the office of the UC system president, in which Charles F. Robinson swore under penalty of perjury that “I understand” the evidence “demonstrates Mr. Fulp may not have sent the disputed email, and his father may not have received it.” The Robinson statement achieved the trifecta of being hearsay, self-serving, and a lie.
Brand, however, ignored the transcript of a two-hour deposition of the junior Fulp on October 3, in which he offered only a litany of “I cannot recalls” to every question posed by Concussion Inc.’s attorney, Roy Gordet, regarding the email’s creation and transmission. The judge did not explain how he managed to ventriloquize “I cannot recall” into “Dad, this why I’ve been so busy at work.” The court simply concocted a protective factual finding of its own.
In addition, Brand found that, even though the respondent UC had the burden of establishing an exemption under CPRA, the journalist-petitioner had the burden of “proving” that this exemption, attorney-client privilege, had been waived here. Such supersedence mix-and-match shopping has characterized the upside-down rulings throughout our case. They add up to enabling the University of California to remain a private corporate fortress rather than an accountable public agency.
It’s worthwhile noting again that in the course of Brand’s serial scales-tipping, he has not yet been able to bring himself to utter one word regarding the underlying narrative and public purpose of our action. That would be the approximately two-a-year death toll in college football conditioning, of which the Agu death and cover-up are key data points — not only for Concussion Inc. but also for national investigative platforms such as HBO’s Real Sports.
Analysis of the new opinion gets even worse when you consider that our briefs by lawyer Gordet plausibly argued that by the standards of Evidentiary Code 954, the Fulp-to-Fulp email could even be construed as not privileged from the get-go, regardless of whether privilege was waived. Arrogantly and with a now-rewarded confidence, UC lodged no rebuttal argument in this area. In ruling against us, the judge blew past the principle that our adversary had defaulted on this and other basics of the motion briefing.
Comprehensive headline links to our six years of Ted Agu death coverage: https://concussioninc.net/?p=10877