Judge in football discrimination lawsuit directs University of Iowa to issue reports on coaches

In an Oct. 28, 2017 photo, then-Iowa Hawkeyes running back Akrum Wadley touches the helmet of the Nile Kinnick statue as he arrives with the team at Kinnick Stadium before their football game. Wadley is among former players who have sued the University of Iowa over racial prejudice in its football program. (The newspaper)

IOWA CITY — University of Iowa Athletics must turn over all materials former players have requested from an “independent and outside review” of the Hawkeye football program — including reports on specific coaches — despite UI’s claims that the records belong to “attorney’s privilege.” “ subject. and should be private.

“It is undisputed that the investigation (by the law firm of Husch Blackwell) was not conducted and the report was not prepared because of the potential for litigation,” Chief Justice Helen Adams’ June 24 order read in the federal lawsuit , that several former Hawkeye football players filed lawsuits against UI, the Iowa Board of Regents, head football coach Kirk Ferentz and others in October 2020.

Referring to UI’s decision to hire national law firm Husch Blackwell LLP to conduct an independent and external review of the program, Adams ordered UI to publish all of its findings — not just the parts it wanted.

“The documents (by Husch Blackwell) predate the plaintiffs’ lawsuit,” she wrote. “Defendants could not possibly have prepared the HB documents in anticipation of litigation if there were no such prospects of litigation. As such, the HB documents are not privileged.”

UI hired the firm to investigate the culture of the football program in early 2020 after numerous former players went public with allegations of racism and discrimination – including among those accused of breaking UI’s $1.3 million separation agreement led with former strength coach Chris Doyle.

As part of his review, Husch Blackwell interviewed current and former players and staff and produced a report that confirmed the program “perpetuated racial or cultural prejudice and diminished the value of cultural diversity.”

The university released a report on the findings in July 2020, and a group of former players subsequently filed a federal lawsuit, raising allegations of harassment, willful delay and bad faith from one side or the other.

In seeking documents to build their case, player attorneys have asked UI to turn over hundreds of thousands of pages of records, including all documents related to the Husch Blackwell investigation. The university has argued in withholding records that they either do not exist or are protected by privilege and privacy laws.

Documents players want include Doyle’s performance reviews and Husch Blackwell’s staff reports on Ferentz, assistant coaches Brian Ferentz and Seth Wallace, and Doyle.

Regarding the university’s argument about “attorney-client” privilege, Adams wrote that it “is a long-established rule that confidential communications between an attorney and his client are absolutely privileged to be disclosed against the client’s wishes.”

However, according to Adams’ order, attorney-client privilege applies “only to disclosures necessary to obtain sound legal advice that might not have been made without the privilege.”

“For attorney-client privilege to apply, the parties to the communication in question must bear the attorney-client relationship,” the order reads. “A communication is not privileged just because it is made by or to a person who happens to be an attorney.”

Noting that UI could not prove that it hired Husch Blackwell to provide legal services, Adams wrote that the fact that the investigation was conducted by a lawyer “is irrelevant.”

“There is nothing on record to support the argument … (that) the HB law firm advised Iowa for the purpose of a legal opinion, in anticipation of litigation, in preparation for a court proceeding, or any other service that only an attorney is authorized to perform,” she wrote. Also, she said, if the UI published any part of Husch Blackwell’s work, it would have to publish all of its reports.

“This court believes that Iowa waived attorney-client privilege when it voluntarily released the report to the public,” its order read.

And because UI has indicated it will use the report as part of its defense, the judge found that “it would be unfair to allow the defendants to use the HB materials as both a sword and a shield.”

Under the judge’s orders, UI must provide much of the requested documents – including Husch Blackwell’s reports – to players’ attorneys by July 11.

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