Why did Doug Park go wacko over the Presidential Archives release?

4/20/2015 update: Please see the retractions posted at http://uomatters.com/2015/04/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html

Update: Meanwhile Gov. Kate Brown has sent an email to all state workers, praising the DAS employees who refused to delete the emails between Kitzhaber and his attorney – and then leaked them to Willamette Week. WWeek report here. Quite a difference from how Park and Coltrane handled the “unlawful release” of UO Presidential Archives.

3/24/2015: Because it could have cost the HLGR law firm, and Park’s former boss and friend Randy Geller, a lucrative contract?

Geller was fired by Mike Gottfredson in April 2014, apparently over his handling of the alleged basketball gang rape. Geller then went to work for the Harrang, Long, Gary and Rudnick law firm.

On Jan 4th 2015, I posted Geller’s “attorney-client confidential and privileged” advice on how to dissolve the UO Senate, which I got from UO’s Presidential Archives:

Screen Shot 2015-03-24 at 10.36.17 AM

Screen Shot 2015-03-24 at 10.36.50 AM

Pretty bad stuff. After I made this public, the UO administration quickly repudiated Geller’s plan. Dave Hubin even offered to share the admin’s emails rejecting this plan. It’s funny-sad how Hubin is so puppy-dog eager to provide public records that might make his bosses look good, while at the same time he’s using fees and delays to hide public records that might make them look bad.

After Geller got hired at HLGR, he brought in a contract to provide legal advice to the new Boards of Trustees for Oregon’s “Regional and Technical Universities”: Eastern Oregon, Southern Oregon, Western Oregon, and the Oregon Institute of Technology. In response to a PR request, OUS quickly provided the basic billing information:

The OUS Chancellor’s Office has paid $20,260.32 to the Harrang Long firm for work Randy Geller has done under this contract. This piece of your records request is being provided at no charge. If you would still like a copy of the contract and billing invoices, kindly remit the estimated charge and I will start work on that as other pending work and time allow.

Thank you.

Ginger Shaw, Executive Assistant
OUS Chancellor’s Office

If you were a new TRU board member, would you want your legal advice about your board and shared governance to come from Randy Geller, knowing he wrote this? If you were an administrator who wanted the faculty to believe you had a commitment to shared governance, would you hire he guy who tried to dissolve UO’s, if this document was out in public?

And if you were Randy Geller, or a partner at HLGR, would you be worried about what other damaging documents from Geller might be in the Presidential Archives?

So did HLGR’s concerns about Geller drive Interim President Scott Coltrane’s over-the-top reaction to the release of the Presidential Archives, including his prejudicial email calling this an “unlawful release” of documents? I don’t know, and I’m guessing UO will never release the public records that might show what really happened.

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28 Responses to Why did Doug Park go wacko over the Presidential Archives release?

  1. Anonymous says:

    This sounds like a nutty conspiracy theory. But it’s Johnson Hall so it’s probably worse than you think.

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    • Licensed in Oregon says:

      They recently added names – check the tabs at top

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  2. Who is overblown? says:

    Either confidential documents deserve protection or they do not. They do by the way. However, this blog finds a difference. Why, your personal involvement in one uomatter. One set of rules applies.

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    • uomatters says:

      Why should the UO admins be allowed to keep a proposal to dissolve the UO Senate secret from the UO faculty?

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      • Grand Inquisitor says:

        If your question is sincere, why did you ask President Coltrane to waive the attorney-client privilege during the January 28 Senate meeting? If you did nothing improper, then why ask? Was that what your lawyer advised you to do? Wonder why?

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        • Ben says:

          I just assumed it was a sarcastic response to an idiotic legal claim.

          “If you honestly think that you have that privilege, can you just waive in the name of garnering our trust?”

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        • Federal Litigator says:

          Grand Inquisitor is onto something regarding the law of privilege. Privileged communications exist because society values the privacy or purpose of certain relationships, e.g. psychotherapist-patient and attorney-client. Many posts/comments highlight concerns about confidentiality and privilege. Stahl noted the “bedrock principle of confidentiality for medical files” and Youngin opined about the psychotherapist-patient privilege in Jaffee v. Redmond (1996). Yet few blog comments express concern with the breach of confidentiality and violation of the attorney-client privilege that occurred when UO Archivists released presidential material to the owner of this private blog. Why the inconsistency?

          Whether right or wrong, FERPA provides an exception “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” 34 CFR 99.31(a)(9)(iii)(B). Numerous courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue. However, UO has not placed Geller’s representation at issue in a public lawsuit. There is no exception for the breach of confidentiality and violation of the attorney-client privilege that occurred when UO Archivists released presidential material to the owner of this private blog, until he asked and was granted a waiver by President Coltrane, after-the-fact.

          For Youngin, the UO counseling records matter is easily distinguishable from Jaffee v. Redmond, because Redmond (the defendant) never placed her mental state at issue, yet the plaintiff wanted her psychotherapy records to help prepare for cross-examination. In Jane Doe v. UO, the plaintiff knowingly, intelligently, and voluntarily placed her mental state at issue in a public complaint and directed her attorney to ask Park to secure and produce records relevant to her claim. Jaffee v. Redmond is distinguishable on facts and it simply does not apply to Jane Doe.

          Truth is, there is no excuse for the wrongful December 3, 2014 transfer of 25,000 un-processed electronic records and the January 4, 2015 public release of the now infamous May 17, 2012 Geller memo, even as it is noteworthy that one of the archivists who “resigned” is the UO Faculty Union secretary. Regardless of how you may feel about the advice provided therein, the release of the Geller memo was illegal when it occurred. The release of an “attorney-client communication confidential and privileged” violated a special relationship that is even more strongly protected than the psychotherapist-patient relationship, but then this is not the first time that UO faculty exercise personal preference over which laws they choose to follow and those they choose to ignore.

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          • uomatters says:

            Interesting – can you cite the law that says it was illegal for me to post Randy Geller’s memo on the web?

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          • it gets bigger says:

            Are you really asking Federal Litigator to provide the legal basis for attorney client privilege? Let me save him/her the time: http://googleitfor.me/?q=the+legal+basis+for+attorney+client+privilege

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          • It's tiny says:

            Dear “It gets bigger.” Really? Legal advice to UOM based on Google?

            Dear “Federal Litigator.” Really? Attorney-client privilege is relevant to a journalist or blogger? I though it served to prevent compelling a client of an attorney from being compelled by the courts to reveal something. What does it have to do with a journalist or private citizen publishing a memo that he or she comes across? Nothing. But I’m no Federal litigator, so maybe you know something I don’t. And you, even though may litigate, don’t appear to be a lawyer. I hope that UOM readers don’t rely either on Google or blog comments for legal advice.

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          • just different says:

            Federal Litigator: I initially posted this question here, but I’ll re-ask on this thread because I’m hoping you know the answer:

            What are “faculty records” and why are they exempt from disclosure? I can’t find anything in the Oregon statutes; is there a federal law to back this up?

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          • Youngin' says:

            I heard my name.

            Numerous courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue

            No, a patient does not necessarily “waive” her privilege by placing her medical condition at issue. And even if she did, the *presumption* is of privilege absent a court order. Here are three cases, just in the federal district of Oregon, where the court ruled that therapy records were privileged even though a plaintiff made his or her mental state “an issue”

            Gallagher v. Lincoln County—no waiver of privilege in the case of “general emotional distress” absent “negligent infliction of emotional distress” “unusually severe emotional distress in light of her allegation” or “specific psychiatric injury or disorder”

            Thomas v. UPS Ground Freight—no waiver when plaintiff did not allege a specific psychiatric disorder.

            Kinnee v. Shack—no waiver in cases of allegation of “general emotion distress”

            The Second Circuit court of appeals explains why “garden variety” emotional distress claims do not waive Jaffee privilege elegantly in Sims v Blot

            Finally, we reject respondents’ contentions that “anybody” who requests damages for “pain and suffering has waived the psychiatric privilege” “because the psychiatric records might conceivably disprove the experiencing of the pain and suffering” (Oral Arg. Tr. 19), that any claim of “even . . . ‘garden variety’ injury waives the psychotherapist-patient privilege” (respondents’ brief on appeal at 42), and that a plaintiff’s mental health is placed in issue whenever the plaintiff’s claim for “unspecified damages” may “include[] some sort of mental injury” (respondents’ brief on appeal at 21). In reality respondents simply seek to have the privilege breached whenever there is a possibility that the psychiatric records may be useful in testing the plaintiff’s credibility or may have some other probative value. To accept these contentions would inject the balancing component that Jaffee foreclosed, and would disregard the principle that “[p]arties . . . do not forfeit [a privilege] merely by taking a position that the evidence might contradict,” Salerno, 505 U.S. at 323. If this principle were not the rule, then in virtually every case a forfeiture might be found, as in virtually every case the party opposing the privilege could argue that the psychological record might reveal evidence that the party asserting the privilege is testifying falsely.

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          • Dumbing down says:

            I also look forward to the next “Federal Litigator” installment, who seems to be saying that most blog comments take a very expansive and protective view of the psychotherapist-patient privilege, but a very narrow view that attacks the attorney-client privilege – nicely contrasted by the entries “it gets bigger” and “it’s tiny.” That inconsistency is interesting, given that they are based on the same legal concept of protecting a special relationship. Never knew that. Also, looks like the filing of a lawsuit impacts the nature of privilege.

            I found this in the Oregonian from January 29,

            “Responding to a nervous request from Harbaugh, Coltrane agreed to waive attorney-client privilege that might have made the 55-year-old professor liable for releasing privileged information in a UO lawyer’s 2012 memo advocating dissolution of the Faculty Senate.”

            Would like to read UOM responses to the interesting “Grand Inquisitor” questions.

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          • Federal Litigator says:

            Youngin, setting aside the misapplication of Jaffe, most of your other cases appear in Kinnee v. Shack, suggesting you may not have reviewed facts in those cases. Kinnee allegedly “suffered severe emotional distress during her employment and for a period of several months thereafter, through approximately February 1, 2006.” Doe pleads a wider range of mental complaints with no time limitations, “…damages for past, present, and future emotional pain and suffering, ongoing and severe mental anguish, and loss of past, present, and future enjoyment of life” (p. 17). Kinnee “expressly represented that she does not intend to rely on the testimony of a psychotherapist and that she does not claim any specific disabilities or medical conditions” from defendants alleged actions. Thus far, Doe has offered no similar limitations. Kinnee is distinguishable on facts and claims – it does not apply to Doe in the way you are attempting.

            Sims never intended to place his mental state at issue, Doe has. Sims’ suit arose from the prisoner’s fears while “struggling to cover up from being either kicked or punched in a vital area, my feet was grabbed and held by someone while C.O. M. Blot placed his knee in my side and kept punching me in my head. C.O. F. Carabello, [sic] shouted, ‘You hit a f—ing officer, you piece of s—, we’ll kill you.’ At this time, C.O. F. Carabello, [sic] pulled his pocket knife and swung down in a stabbing motion. I twisted away as best I could but was cut by his knife anyway. . . .” Sims is also noteworthy for his “withdrawal of any claims for emotional injury damages beyond those ordinarily associated with a conventional claim for pain and suffering resulting from an assault and physical injury.” Doe has not withdrawn her claim, but even if she does, her counsel asked Park to secure and produce records last August. Park did his job.

            Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.

            Briefly, the absurd comment “What does it have to do with a journalist or private citizen publishing a memo that he or she comes across?” begs the question whether UOM would publish Doe’s records if he came across them. Of course not, but there are other forms of confidentiality and privilege that UOM disregards. The Geller memo was confidential and protected by attorney client privilege, until Harbaugh made his “nervous request” after-the-fact and Coltrane waived the attorney-client privilege. Doe knowingly, intelligently, and voluntarily engaged her attorneys to request records relevant to her claim arising from the poor judgment and egregious conduct of three young men after a basketball game on March 9, 2014. We disrespect Doe when we distract away from the facts, or deny the horror, of what she endured that night.

            Finally, for Dumbing down, on the advice of counsel, UOM may decline to answer those questions and remain silent. Probably good advice.

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            • uomatters says:

              Thanks for this legal advice, FedLit. Between you and Bill Gary, I’m sure getting a lot of that lately, and all for free.

              I’ll let Youngin explain again the finer points of just what docs Jane Doe’s lawyers asked Doug Park to hold, and why it was not a good idea for Park to wait 6 months, then finally ask Shelly Kerr for Doe’s counseling records, then scan them to pdf, and then store them on a General Counsel’s Office server.

              UO has said the paper originals are now back in their sealed envelope, but electronic files have a way of migrating around. Presumably Park can produce server logs showing who accessed them when, but what if someone in the GC’s office put them on a “zip drive”? Who would ever know who had then accessed that blue thing?

              As for my posting of Randy Geller’s memo about dissolving the UO Senate, you still haven’t explained what was illegal about that. You still don’t have any cites on that, do you?

              The get out of jail thing was Coltrane’s joke, in reaction to my off hand response to a statement in the Senate, asking if I’d really done anything wrong by posting it. UO has told me I’m not under investigation for posting this “confidential” document. If I was, they’d have to give me a copy of Amanda Walkup’s report on her investigation.

              As for FERPA protected records and me: I know that if I’d made any of these public, I’d be in disciplinary trouble. I’m not, as explained above. As I’ve also explained, I was given the digital Presidential Archives only after agreeing to keep confidential documents confidential. This is standard procedure for the UO Archives, as Associate Dean Andrew Bonamici told the University Library Committee several weeks ago, and as I’ve also explained.

              In short – nice try, but please respond thoroughly to the referees’ concerns before resubmitting again.

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          • Federal Litigator says:

            That dialog begins with the definition of confidential communication under Oregon Law, but first we need a few ground rules. Will you answer my questions directly and respond thoroughly to the concerns of your readers?

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          • What dialog? says:

            He asked you to cite some cases. You need ground rules to do that?

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          • Federal Litigator says:

            I appreciate and respect that this is Bill’s private blog where he can demand answers from commenters. I am prepared to provide answers, but would appreciate some reasonable reciprocity. Hence, a dialog. Until then, I accept that the Oregonian was reasonably accurate about this matter on January 29,

            [Responding to a nervous request from Harbaugh, Coltrane agreed to waive attorney-client privilege that might have made the 55-year-old professor liable for releasing privileged information in a UO lawyer’s 2012 memo advocating dissolution of the Faculty Senate.

            “I think attorney-client privilege is important,” Coltrane said.

            “I can guarantee I’m a better muckraker than I would be a university president,” said Harbaugh, granting that administrators have difficult jobs.]

            If we accept the “Doug Park go Wacko” UOM headline, surely we can also accept the Oregonian reference to UOM liability.

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          • dog says:

            Independent of taking sides (UOmatters, Doug Park, Coltrane’s, others) the basic issue that this illuminates, once again, is the
            general and often tremendous over-reaction to problems and issues at the UO that then, inevitably, lead to more finger pointing, blamestorming and polarization. This seems to happen everywhere these days at the UO.

            Our ability to apply convergence principles and common sense to resolving issues appears now to be just dust in the wind.

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          • senate watcher says:

            Federal Litigator: “I appreciate and respect that this is Bill’s private blog where he can demand answers from commenters. I am prepared to provide answers, but would appreciate some reasonable reciprocity. Hence, a dialog. Until then, I accept that the Oregonian was reasonably accurate about this matter on January 29, …”

            Instead of depending on the Oregonian’s accuracy on January 29th, why not go back and watch the Senate meeting of January 28th and decide for yourself.

            http://senate.uoregon.edu/content/2014-2015-senate-meetings

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          • What dialog? says:

            FedLit, I think asking for cases was intended to establish your credibility, not the Oregonians. You can either back your opinions up with cases or not.

            In short, I doubt anyone cares about the demands of an anonymous poster on some blog.

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    • Ben says:

      If that were the case, anyone could just slap the word “confidential” on anything that they want to illegally hide from public records law and suddenly be legal.

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  3. Anonymous says:

    Library archivists won’t be allowed back, in any capacity.

    Nice to do this during spring break.

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  4. bird_dog says:

    i will pitch in $50 to get a glimpse at the Dean Lim memos and the external report that explains the lack of policy guidance from the office of the president regarding the archival and management protocol for presidential records. Did the president’s office comply? Did General Counsel improperly remove materials before sending to archives? It looks like a policy problem, not a librarian problem. Admins are scapegoating to protect their lawyers.

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