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Ag's Office: Msu "Wrongfully Withholding" Documents and Impeding Inquiry of Nassar Matter

By Matt Mencarini
Lansing State Journal
June 20, 2018

https://www.freep.com/story/news/local/2018/06/20/michigan-state-larry-nassar-investigation-search-warrant/719912002/

The special prosecutor investigating sexual misconduct at Michigan State University in the wake of the Larry Nassar scandal has accused MSU’s lawyers of interfering with his investigation by withholding documents and last week told the university he will seek a search warrant.

The move followed two months of increasingly terse letters between William Forsyth, who is leading the investigation for the Michigan Attorney General’s Office, and Robert Young Jr., the university’s new general counsel and former Michigan Supreme Court Justice.

Forsyth told Young in a June 15 letter that he also will request a judge or an appointed third party to review the documents and determine what is protected by attorney client privilege and work product doctrine.

MSU's Board of Trustees requested the AG's investigation in late January, amid two sentencing hearings for Nassar, the former MSU and USA Gymnastics doctor who sexually abused hundreds of women and girls. Attorney General Bill Schuette then announced that Forsyth, a retired Kent County prosecutor, would lead the investigation. Although the board sought an independent inquiry into the handling of the Nassar matter, Schuette's office said it would investigate sexual misconduct at the university.

The Lansing State Journal received the the Forsyth-Young correspondence Wednesday in response to a public records request. In five letters over the course of two months, Forsyth and Young sparred over the university's assertion of attorney-client privilege and attorney work product privilege.

(You can read the letters at the bottom of this story.)

Attorney-client privilege keeps communication regarding legal advice between an attorney and client confidential. Attorney work product privilege protects materials prepared in anticipation of litigation.

Forsyth initiated the correspondence in an April 11 letter to Young, requesting that MSU "reconsider its decision to so liberally assert" privilege. Later, he sent a letter to Young to be passed along to university trustees asking them to waive the privilege.

Young wrote back that on his advice the trustees declined. He added that Forsyth's pursuit of a waiver directly from MSU's Board of Trustees "brings shame upon you, the Attorney General and our legal profession that is expected to model and show respect for the Rule of Law."

The request, Young wrote, had been coupled with the "implicit and tawdry threat" to publicly and politically embarrass the board if it failed to waive privilege.

Young maintained that MSU's assertion of privilege has been appropriate and necessary due to the lawsuits by more than 300 of Larry Nassar's victims and the potential of future litigation with its insurance companies. In May, the university reached an agreement with Nassar's victims to settle for $500 million.

Forsyth wrote that Young, who served 18 years on the state Supreme Court, took the position that it's "shameful" to request a waiver of privilege due to "a lack of familiarity with the criminal investigatory process."

In the final letter of the exchange, Forsyth told Young he will be seeking a search warrant.

"I must be sure that the University is not improperly shielding documents from the investigation under the guise of privilege," Forsyth wrote. "...(T)here are emails between William Strampel and Larry Nassar that have been identified as 'attorney-client privileged,' despite not having an attorney included on the email."

Forsyth's investigation produced charges against Strampel, one of Nassar's former bosses, related to his actions during and after a 2014 MSU Title IX investigation of Nassar and for alleged sexual misconduct as dean of the College of Osteopathic Medicine.

"Furthermore," Forsyth wrote, "our concern that MSU might be improperly withholding information was heightened by an email produced by the University from Chairperson (Brian) Breslin to his fellow Trustees discussing non-privileged information and directing them to copy legal counsel on their response in order to 'protect client privilege.'"

Over the course of the correspondence, April 11 to June 15, MSU's Privilege Log that tracks documents it is withholding from the AG's investigators increased from 26 pages to nearly 200 pages and 1,500 emails, "many of which involve key persons of interest in our investigation," Forsyth wrote in his final letter.

In his first letter, Forsyth had noted that it appeared the university "decided to assert privilege and withhold or redact emails sent to or from" Nassar.

Andrea Bitely, a spokeswoman for the AG's Office, declined to comment on whether a search warrant has been obtained or the whether documents have been provided, citing the ongoing investigation.

Emily Guerrant, a spokeswoman for the university, said she disagreed with Forsyth's characterization that the university was impeding the investigation.

"I know we have handed over more than 75,000 documents," she said. "We have been cooperating fully with the investigation."

Forsyth, in a May 24 letter to Young, said MSU sent "tens of thousands" of "obviously" irrelevant documents, including the "Bed Bug Management-Infection Control Policy."

On April 20, Young told Forsyth that nearly all of the documents turned over to the AG's Office investigators weren't redacted. Of the first 45,245, Young wrote, only 256 documents were completely withheld and another 176 were partially redacted.

"We even offered to provide you with summaries of the facts our attorneys found in investigating Nassar's crimes but you have repeatedly declined that offer because you want to know what our lawyers thought about those facts," Young wrote on June 8.

"Indeed the whole purpose of an outside investigation — the reason the Board asked the Attorney General to investigate — is to have an independent assessment of the facts, not crib on our attorneys' assessment."

Forsyth, in his final letter, told Young his investigation isn't seeking legal advice provided to MSU or its employees.

"I need the factual information underlying the communications for purposes of my investigation as well as all relevant communications and emails between University officials and other employees," he wrote. "What was known, by whom and when. For a variety of reasons, no investigator relies on the target's own factual 'summaries.'"

Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com . Follow him on Twitter @MattMencarini.

 

 

 

 

 




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