ESPN v. Ohio State Update: Ohio State Submits Documents to the Court

Submitted by BlueNote on October 11th, 2011 at 10:57 PM

 

As many of you know, ESPN is suing OSU in the Ohio Supreme Court.  ESPN claims that OSU rejected perfectly fine FOIA requests from ESPN asking for emails and other stuff related to some of the recent scandals.  The media company survived the first couple legal obstacles erected by OSU and now they are starting to get into the substance of the case.

Today Ohio State filed several documents with the Ohio Supreme Court that anyone can view online.  The first portion can be found here:

http://www.sconet.state.oh.us/tempx/695281.pdf

This first portion consists of affidavits from OSU staff, some letters, and other random stuff.  One interesting tidbit came in an October 4 letter to ESPN’s lawyers:

“In particular, is ESPN seeking records regarding the specific NCAA investigation that led to Coach Tressel leaving the University? Or is ESPN seeking records related to any NCAA investigation involving Jim Tressel since January 1, 2010 (i.e. investigations of all matters, which involved the NCAA and, for which Jim Tressel had some involvement)? That distinction is important because the January 1, 2010, date significantly precedes the investigation that has been ESPN's primary focus. Further, as you can see from the records produced in response to ESPN's past violations request, several investigations since then did examine Coach Tressel's actions in the course of investigating matters completely unrelated to the investigation leading to Tressel's separation from OSU.”

Another interesting revelation came in Exhibit A to Sandra Anderson’s affidavit (about 3/4 of the way through the document).  The exhibit shows that OSU has held back 51 documents containing the word, “Sarniak.”  Considering that many of those are probably different emails within the same email thread, my guess is that this amounts to approximately 10 or 15 email threads.  That’s a complete shot in the dark based simply on being involved in various court cases involving emails.

Finally, it appears from the affidavits in this first portion that OSU is putting all of its eggs in the FERPA (federal student privacy law) basket.  OSU thinks it will be allowed to ignore these FOIA requests from ESPN based on the federal student privacy law.  That battle will be played out over the coming weeks before the court.

The second portion of documents submitted by OSU are comprised of all the emails and attachments they have already produced to ESPN.  There are lots of pages – I’m guessing hundreds.  I couldn’t read through it all but if you are suddenly fueled by an urge to read volumes of emails that ESPN found uninteresting, then go for it:

http://www.sconet.state.oh.us/tempx/695282.pdf     

Within the next 24 hours, we might also see some documents from ESPN.

What happens then?

Oct 21: ESPN files a brief with its legal arguments.

Nov. 10: OSU files a brief trying to debunk ESPN’s legal arguments.

Nov. 17: ESPN files a smaller brief trying to debunk the debunking of its arguments.

Somewhere in the distant future:  the Ohio Supreme Court makes a decision.

Comments

BlueNote

October 11th, 2011 at 11:16 PM ^

Some of the FOIA requests are vague.  They ask for things like "anything related to an NCAA investigation . . ."  OSU could spend hundreds of man hours conducting a search that broad.

ESPN has an interesting counterargument though.  Under the Ohio Open Records Act (basically, Ohio's FOIA law), OSU is supposed to work with ESPN to make the request more manageable.  Specifically, OSU is supposed to tell ESPN how it organizes its records so that ESPN can make its request more focused.  ESPN claims that OSU never provided that clarification about how it organizes its records, and therefore OSU is ignoring its responsibilities under the law.

BlueNote

October 11th, 2011 at 11:11 PM ^

is elected.  It looks like there will be slots for 4 of the 7 positions open for the 2012 election.  

I've posted about this before and have thought about it a bit since then.

Honestly I'm not sure how much this case will factor into a justice's decision if he or she were only worried about getting reelected.  There are legitimate hot-button legal issues that people care about more than FOIA.  I suppose if the well-heeled OSU supporters got together and threatened to work against the justices' campaign efforts, that could have an impact.  I'm just not sure how realistic it is to expect that kind of coordinated behind-the-scenes effort to sway the outcome of this case.

74polSKA

October 12th, 2011 at 7:42 AM ^

But seriously, where did you hear this?  My daughter is really starting to like rides and I was planning a visit next summer.  BTW, the Hocking Hills are a pretty nice natural area, although about 3 hours further into Ohio for those up North, thus requiring more airing out to get the stink off upon return to Meeechigan.

justingoblue

October 11th, 2011 at 11:27 PM ^

If Wikipedia is correct, it looks like three: Brown, Cupp, O'Donnel.

As for the second part, that's a good part of my degree and I definitely agree with what you say. On top of what you said, the money from pro-OSU sources is going to be a lot less than any other PAC's that they're likely to come across. With the amount of money that a group like the NRA or AARP is going to spend, even someone like Wexner probably won't put enough money on the line to top those donations. The added part is that nobody (or very few people) is/are going to let the OSU decision affect their predetermined political allegiances. Think about it, if Obama or Boehner were the worlds biggest OSU fans, would they vote for a Republican or Democrat for a position of that importance based on their favorite football team?

BlueNote

October 11th, 2011 at 11:30 PM ^

I looked at the same Wikipedia page but was still confused.  It looks like with an additional forced resignation due to age, there will be four vacancies at the end of 2012.  But I'm not sure when those vacancies will be slotted for election.  Some this year?  All next year?  I have no idea.

03 Blue 07

October 12th, 2011 at 1:02 AM ^

In camera inspection a possiblity? It seems that if tOSU is claiming the documents aren't responsive, or are protected by FERPA, at the very least, if ESPN loses its battle to have them produced outright, the prospect of an in camera inspection should be raised either in the prayer for relief at the end of ESPN's motion (which "and for such further and other relief as this Honorable Court deems just," which is standard language, would encompass) or during oral argument. For the non-lawyers: in camera is where the judges themselves look at the "privileged" documents to assist in determining if the privilege even applies. In this case, the judges, I assume are going to ultimately have to decide two things: 1.) whether the "privilege" (FERPA) applies, and 2.) if it does or does not apply, whether it does or does not apply to these specific documents that tOSU is seeking to withhold.

VicVal

October 12th, 2011 at 2:27 AM ^

In camera review seems likely to me if the court doesn't rule directly for ESPN--just from what's been reported, er, relayed, here, there seem to be ample grounds to demand that the court at least have an opportunity to review the documents and force the university to justify its calls.  Every document sent to Sarniak (or received from him) sets off red flags for me.

I'm wondering if the university is putting far too much weight on FERPA.  Their arguments consistently strike me as over-reaching, especially given the genuine public interest in the information.  And not just popcorn-loving Michigan fan interest; any taxpayer in that state (hi Mom and Dad, tell me again why you moved there?) should care about the fact that the university would more efficiently use its funds by setting fire to them instead of paying its compliance staff. Or its AD.  Or its president, come to think of it.

BlueNote

October 12th, 2011 at 12:58 PM ^

There will absolutely be in camera review.  For non-lawyers, that means that Ohio State will give the court all of the documents it refused to give to ESPN.  The court will then look at the documents (mainly emails I think) to see if they should be turned over.

In fact, OSU has already given those documents to the court under seal (ESPN and the public can't see them).  It happened yesterday.

It makes it harder for OSU to BS about things when the court has the documents.

Caveat: this assumes that OSU gave all the documents ESPN wants to the court.  OSU presumably took the narrowest interpretation of ESPN's records requests, and then gathered a small number of documents.  From those documents, they held some back (which are now with the court).  If ESPN wins, it gets the small number of documents with the court.  ESPN might later argue that OSU should have been more expansive in their interpretation of the records requests, which means OSU should have searched for more stuff, which means OSU would have found more stuff, which means OSU would have submitted even more documents to the court.

 

ChiBlueBoy

October 12th, 2011 at 1:19 AM ^

From what I know of FERPA, if all their eggs are in that basket, expect broken eggs. FERPA protects students' personal information, not information about coaches and faculty. Documents relating to particular student-athletes (in the case of tOSU /s) will be protected (perhaps sanitized to remove names, etc), but my guess is that everything else eventually gets turned over. One possibility, should this become a political football (forgive me) is that the Sup Ct. gives a per curiam decision (basically, unanimous without any one justice signing the opinion) or just gives a decision with no real opinion attached. (It's been a while since I've done litigation, and my knowledge of FERPA is tangential, so feel free to correct me if I'm way off here).

Long time listener, first time caller. Can I order the steak knives?

BlueNote

October 12th, 2011 at 12:51 PM ^

Good question.  That's basically ESPN's argument (as well as the argument that FERPA is not an exception to Ohio's FOIA law).  I will do something a bit later and more involved as the two sides file their legal briefs.

74polSKA

October 12th, 2011 at 7:51 AM ^

It seems juvenile, but I think a judge up for reelection would consider that fact when making a ruling that could further damage Ohio.  I don't really look into how a judge voted on different cases when I'm casting my ballot.  I haven't even heard of the people running in most cases.  I wouldn't want people to recognize my name as "that guy that screwed the buckeyes".  And I know that everyone would know the names after the way the local media tried to throw Cicero and Talbott under the bus when their stories broke.

74polSKA

October 12th, 2011 at 8:01 AM ^

I know there are a lot of legal minded posters in these threads so help me on this one.  Is it normal for a university to pay all the legal fees for their athletes in cases before the NCAA?  Ohio has paid nearly $142,000 out of the department's general operations fund so far.   The article mentions Auburn paying $170,000 in Newton's defense.  I guess Ohio is getting the group rate considering how many players they have involved.  We had the Tat 5 and now the SI 9.  Classic.

ChiBlueBoy

October 12th, 2011 at 3:16 PM ^

If a player is having to defend himself relating to participation in football, the university can pick up the bill, apparently. I would imagine this is typical. One nice way of looking at this is that the attorney ethically must protect the interests of the client and not the person paying her. For that reason, Ohio could end up paying an attorney for arguing that it was the school, and not the student, who acted inappropriately. In other words, Gee may say they were off the reservation, but he's paying attorneys to perhaps prove him wrong.

SchrodingersCat

October 12th, 2011 at 8:01 AM ^

How can there be 50 documents that contain the keyword sarniak without 1 of them being available to gee or smith? My understanding was that Tressel recieved 3 or 4 emails and responded with 3 or 4. What are the other emails about and to whom are they addressed?

BlueNote

October 12th, 2011 at 12:43 PM ^

If you reply to or forward someone's email, you start a thread (meaning an email with the previous message(s) below the immediate message).  If you reply back and forth with someone 8 times, that creates a long thread.  There are 8 separate emails, but only one "email thread."  Forwarding an email does the same thing. 

 

BlueNote

October 12th, 2011 at 1:12 PM ^

All we can divine at this point is that there are approximately 50 emails to or from certain individuals (I think it was Gee, Smith, Tressel or something like that) containing the word "Sarniak" during a certain time period.  If Tressel received 3 or 4 and responded with 3 or 4, that makes 6-8 emails of the 51. 

 

Indiana Blue

October 12th, 2011 at 8:57 AM ^

when tsio enrolls Sarniak as a student and then proclaims that those emails are now protected by FERPA.

BTW ... do you think tressel is still texting psalms to the tsio coaches and staff ? /s

Go Blue!