STATE OF MICHIGAN

DEPARTMENT OF ATTORNEY GENERAL

raft,

P.O. Box 30212

LANSING, MICHIGAN 48909

BILL SCHUETTE
ATTORNEY GENERAL

April 11, 2018

Justice Robert Young

Dickinson Wright
215 W. Washington Square
Suite 200
Lansing, MI 48933-1816

Re: University Response to Department of Attorney General Investigation

Dear Justice Young:

I write to address a concern that I have related to the University's response to

informational requests from the Department of Attorney General. On April 6, 2018,
MSU produced a Privilege Log listing documents that have been redacted or
withheld based On an assertion of the attorney-client and/or attorney work product
privilege. Currently, the University's Privilege Log is twenty-six pages long and
contains hundreds of entries. It is my understanding that this log is a work in-
progress and will be supplemented as additional documents are reviewed by MSU
attorneys.

First, as a general matter, I find the Board of Trustees' assertion of privilege to be

both inconsistent with its public representations and legally unsound. As you may
recall, the Board sent a letter to Attorney General Schuette on January 19, 2018,
requesting that this Office undertake a review "of the events surrounding the Larry
Nassar matter" and explaining that the review was necessary in order "to answer
the public's questions concerning MSU's handling of the Nassar situation." In its
letter, the Board also pledged that they "stand ready to fully cooperate" in the
Attorney General's review.

In addition to this public pledge, the Board's duty to fully cooperate with the
Attorney General's review is mandated by law. The Board is a public corporation
created under the Michigan Constitution. Const. 1963, art. 8, sec. 5. Its purpose is
to carry out the will of the people and it cannot use its independence to thwart
clearly established public policy. Branum v State, 5 Mich App 134, 138 (1966).
Moreover, the Trustees have a fiduciary obligation to the people of the State. As
fiduciaries, they have a duty to act in good faith and are barred from acting for their
own benefit at the people's expense. Prentis Family Foundation u Barbara Ann
Robert Young
Page 2
April 11, 2018

Karmanos Cancer Institute, 266 Mich App 39, 43-44 (2005). These important legal
obligations have been recognized and enshrined in the University's Bylaws.' The
Board's decision to assert the attorney-client privilege and the attorney work
product privilege in response to requests for information from the Department of
Attorney General clearly run afoul of these legal duties.

Second, beyond just wrongfully withholding information, the manner that the
University has communicated its withholding impedes this Office's ability to fully
evaluate the propriety of the University's assertions of privilege. As written, the
Privilege Log fails to specifically identify those individuals on University
communications who are attorneys rendering legal advice. Additionally, MSU has
chosen to log emails by "chain" rather than by each individual communication
which obfuscates our review. For example, the Privilege Log states that Document
MSU-AG-0132987 has been withheld based on the "attorney-client privilege." The
document is described as an "email chain requesting information to assist in
rendering legal advice regarding Nassar litigation." The email chain is between
Kathy Klagas and Tracy Leahy (dated December 13, 2016). While no job title has
been provided for Ms. Leahy, her LinkedIn profile indicates that she has been the
Senior Institutional Equity Investigator and Deputy ADA Coordinator for
Grievances at Michigan State University since 2015. Based on her job title, it's
unclear how Ms. Leahy could have rendered legal advice to Ms. Klagas in 2016.
Moreover, the attorney-client privilege does not protect from release the facts
underlying a person's communications with his or her attorney. Upjohn Company v
United States, 449 US 383, 395 (1981). Thus, in this instance, the Privilege Log
either lacks sufficient information to substantiate the assertion of privilege or the
communication is not privileged and has been improperly withheld by the
University.

These concerns are of critical import because the Privilege Log reflects that
numerous emails involving key individuals in our investigation (for example,
members of the Board of Trustees, former President Simon, Vice President Bill
Beekman, Provost June Youatt, and Associate Provost Terry Curry) have been
withheld.2 The University's decision to withhold and redact information involving
these key individuals substantially interferes with this Office's ability to conduct a
complete and thorough investigation of the University's handling of the Nassar
matter.

'See Preamble to the Michigan State University Bylaws which says that the
University is "obligated to serve the best interest of the people who support it."
2 In fact, it appears the University has even decided to assert privilege and withhold
or redact emails sent to or from (convicted felon) Larry Nassar.
Robert Young
Page 3
April 11, 2018

Furthermore, it appears that emails involving the former Dean of the College of
Osteopathic Medicine, William Strampel, have been withheld or redacted. As you
know, this Office has recently filed both felony and misdemeanor criminal charges
against former Dean Strampel. Our investigation into his conduct is on-going. By
withholding communications involving the former Dean of the College of
Osteopathic Medicine, the University is impeding our ability to investigate the full
scope of Strampel's illegal conduct and clearly thwarts "the will of the people of the
State."

In light of the foregoing, I am asking that the Board reconsider its decision to so
liberally assert the attorney-client privilege and the attorney work product privilege
in response to requests for information from this Office. If the Board will not
reconsider its decision, then I am requesting that MSU agree to the appointment of
a third-party to conduct a review of the communications that the University has
asserted are protected by privilege so that the propriety of those assertions can be
evaluated.

A response to my proposal by April 20, 2018, would be appreciated. In the interim,

if you have any questions or concerns, please do not hesitate to contact me. Thank
you for your time and consideration.

Sincerely,

William A. Forsyth
Independent Special Counsel
 215 S. WASHINGTON SQUARE, SUITE 200
LANSING, MI 48933-1816
DICKINSON RIGHTpuc TELEPHONE: (517) 371-1730
FACSIMILE: (844) 670-6009
hop://www.dickinsonwrightcom

ROBERT P YOUNG
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April 20, 2018

Staitettli ege:10

VIA E-MAIL AND U.S. MAIL

William A. Forsyth
Independent Special Counsel
State of Michigan
Department of the Attorney General
P.O. Box 30212
Lansing, Michigan 48909

Re: Information Request to Michigan State University

Dear Mr. !Forsyth:. .'

I arn..in receipt.of your letter dated April 11, 2018. First, I am .disappointed that you
chose to write such a letter rather than picking up the phone and calling me. I thought I
Made Clear when.we met that I was committed to cooperating with your investigation and
wanted a directrelationship with you so we could avoid and resolve problems. Instead,
you chose to is'SUe an aocusatbry letter.

That said, after serving 18 years on the Michigan Supreme Court I had thought it
unlikely that I would be surprised by any legal argument. But your assertions that
protecting the University's attorney-client privileged communications is "legally unsound,"
constitutes a "refusal to cooperate," and is a repudiation of the Michigan State University
Trustees' "fiduciary duty to the public" are shocking because they are predicated on a
fundamentally flawed understanding of the law and a serious lack of respect for why the
attorney-client privilege is such a hallowed American legal right.

The fact is we are and have been cooperating. To date, MSU has produced
46,245 documents to your office. Of these, only 256 documents have been fully withheld
as privileged, and another 176 have been produced partially redacted for privileged
communications: fewer than one percent. More important, at your request we have
provided you with a "privilege log" listing every document that we consider protected by
the attorney-client privilege.

Additionally, in order to facilitate your investigation,,on February 15, 2018, MSU

counsel, Patrick Fitzgerald, Scott Eldridge, and Amy Van Gelder, met in person with' you,
Chief Deputy Attorney General Laura Moody, and Assistant Attorney General Christina

ARIZONA , CALIFORNIA FLORIDA KENTUCKY MICHIGAN

NEVADA ' OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC

 DICKINSON WRIGHT PLLC
William A. Forsyth
April 20, 2018
Page 2

Grossi at the office of the Attorney General. MSU counsel Al Hogan participated by phone.
During that meeting, Mr. Fitzgerald explained the scope of Skadden Arps' and Miller
Canfield's representation of MSU, including the parameters of the defense team's
privileged internal review of University documents and interviews of University
employees. Mr. Fitzgerald offered to orally proffer non-privileged facts learned during the
review to your team so as not to waive the privilege. Significantly, your office has so far
declined that offer

Nearly all of the entries on MSU's privilege log post-date September 1, 2016, and
thus are communications made after Nassar's misconduct was exposed and when MSU
was anticipating or subject to active litigation. (More than 250 "Nassar" plaintiffs have filed
lawsuits.) Indeed only five of the entries on the log pre-date September 2016 (three of
these documents were fully withheld, and two were produced redacted). Even a cursory
review of the log reveals that the overwhelming majority of documents withheld or
redacted are legal defense communications.

In any event, attempting to invade the University's privilege, whether related to the
Nassar litigation or not, is wholly improper and not supported by law. You claim that our
assertion of these privileges—which are virtually sacrosanct in the American legal
system—is somehow "inconsistent" with the MSU Board of Trustees' public commitment
to cooperate with your ongoing investigation and "legally unsound." Because you are an
experienced, long-serving prosecutor, I know that you know that this is incorrect.

You certainly understand that the attorney-client privilege creates a privacy

between attorney and client that is integral to the proper functioning of the legal system.
The United States Supreme Court has explained that "Whe attorney-client privilege is the
oldest of the privileges for confidential communications known to the common law."
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Invoking this privilege is not an
admission of wrongdoing, and it is not designed to interfere with investigations. Rather,
according to the Supreme Court, the privilege serves the important purpose "to encourage
full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice." Id. ("The
privilege recognizes that sound legal advice or advocacy serves public ends ....). Thus,
contrary to your suggestion that the University has "run afoul of [its] legal duties" to the
public, preservation of the attorney-client privilege serves the public interest. Absent very
limited circumstances not applicable here, the attorney-client privilege does not yield to a
governmental investigation.

Thus waiver of the privilege is not a prerequisite to cooperation; rather, the

disclosure of facts is what is needed to advance legitimate law enforcement interests. The
United States Department of Justice has expressly recognized this and directed its
prosecutors not to even ask for attorney-client communications or attorney work product.

ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN

NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC

 DICKINSON WRIGHT PLLC

William A. Forsyth
April 20, 2018
Page 3

See U.S. Attorneys' Manual § 9-28.710; see also id. § 9-28.720 ("Eligibility for cooperation
credit is not predicated upon the waiver of attorney-client privilege or work product
protection. Instead, the sort of cooperation that is most valuable . . . is disclosure of the
relevant facts.").

Moreover, as I am sure you are well aware, a party cannot selectively waive
privileges to government agencies during an investigation but continue to assert those
privileges as to others. In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293
F.3d 289, 302 (6th Cir. 2002). The law is clear that a voluntary waiver of the University's
attorney-client privilege to you would effect a general waiver of the privilege, including in
the pending civil litigation. For the Board of Trustees to do this would be irresponsible and
set a dangerous precedent that would chill candor between the Trustees, University
personnel, and the University's lawyers. For this reason, we also must decline your
invitation to volunteer our privileged communications for third-party review.

By properly asserting privilege, the University is not attempting to "thwart clearly

established public policy," as you contend. To the contrary, this State's clearly established
public policy protects the privileges of public institutions. For example, information and
records subject to the attorney-client privilege are protected from disclosure under
Michigan's Freedom of Information Act. MCL 15.243(1)(h). Similarly, the Open Meetings
Act allows a public body to meet in a closed session to discuss attorney-client
communications. See MCL 15.268(h); see also Open Meetings Act Handbook, Attorney
General Bill Schuette, at 11 (acknowledging same). The University, like any other public
institution, enjoys these protections.

Notably, the Office of Attorney General, of which you are a part, equally benefits
from the attorney-client privilege. It has certainly invoked it countless times. See, e.g.,
McCartney v Attorney General, 231 Mich. App. 722; 587 N.W.2d 824 (1998) (where
Attorney General invoked attorney-client privilege while refusing to produce letters from
the Governor's office seeking legal advice). Instead of recognizing this established body
of law, your letter rather stunningly relies on the entirely inapplicable decision in Branum
v. State, 5 Mich. App. 134 (1966), which did not address attorney-client privilege issues
at all.

I also disagree with your assertion that the privilege log we provided at your request
is somehow deficient. Even though it is questionable whether such a log was even
required, the University voluntarily and timely produced it to you, and it includes all of the
information customarily provided. Nevertheless, we are willing to discuss the matter with
you so that you can better understand any individual log entries, including the role of
Tracy Leahy, who was temporarily assigned to the Office of the General Counsel during
the fall of 2016.

ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN

NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC

 DICKINSON WRIGHT PLLC
William A. Forsyth
April 20, 2018
Page 4

In short, the University's assertion of privilege is not improper. Rather, your

suggestion that MSU waive its privilege is what is improper. We have not shielded any
relevant facts from you. To the contrary, we have gone to great lengths to provide you
with all facts, -including producing voluminous amounts of information to your office on a
weekly basis, providing a privilege log, offering oral proffers, making witnesses available,
timely.responding to all your questions, and adjusting production priorities at your request.
And, as I previously assured you, we will continue to cooperate in earnest through the
conclusion of this.matter.

Let's stop this silly exchange of letters. Please give me a call if you would like to
discuss this in more detail.

RPY:lmp

ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN

NEVADA OHIO TENNESSEE TEXAS TORONTO ' WASHINGTON DC

 STATE OF MICHIGAN
• DEPARTMENT OF ATTORNEY GENERAL
desoraset,

P.O. Box 30212

LANSING, MICHIGAN 48909

BILL SCHUETTE
ATTORNEY GENERAL

May 24, 2018

Justice Robert Young

Dickinson Wright PLLC

Dear Justice Young:

At the outset, I would like to congratulate you on your recent appointment to

the position of Vice President and General Counsel for Michigan State University
and to thank you for your willingness to facilitate our office's interactions with
Skadden.

In that regard, Christina Grossi received an email from a Skadden attorney,

Amy VanGelder, yesterday morning, May 23, in which Ms. VanGelder indicated
that "we (Skadden) are working to add additional information to our privilege log to
address your concerns."

In an attempt to determine what "additional information" Skadden intends to

incorporate, I asked Ms. Grossi to contact Ms. VanGelder by phone. Based on their
conversation, it is my understanding that Skadden intends to disclose all parties
involved in the email chains that have been or will be withheld or redacted. While
this is a significant improvement, it will nonetheless not resolve our fundamental
issue; i.e., absent a waiver of the attorney-client privilege, we will not really know
the content of the emails provided by the some of the key participants at the
University in responding to the Nassar and Strampel matters.

Without this information, we will be unable to conduct the review that the
Board requested of us. Consequently, I am asking you to please forward the
enclosed letter to the Board of Trustees.

Thank you for your time and consideration. If you have any questions or
concerns, please feel free to contact me.

Sincerely,

William A. Forsyt,
Special Independent Prosecutor
 STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
ostesuargtz

P.O. Box 30212

LANSING, MICHIGAN 48909

BILL SCHUETTE
ATTORNEY GENERAL

May 24, 2018

Michigan State Board of Trustees

Michigan State University

To the Board of Trustees:

On January 19, 2018; this Board sent a letter to the Attorney General asking
that his Department undertake "a review of the events surrounding the Larry
Nassar matter." In urging their request, the Trustees declared that "only a review
by [the Department of Attorney General] can resolve the questions in a Way that the
victims, their families, and the public will deem satisfactory and that will help all
those affected by Nassar's horrible crimes to heal." That letter, signed by each
individual Board member, ended with a pledge that the Trustees "stand ready to
fully cooperate with your review."

On January 27, 2018, Attorney General Schuette answered your Call and
announced publicly that a full and complete investigation would be done. I was
charged with leading that investigation — a responsibility that I take very seriously.
The crimes perpetrated by Nassar, and the events surrounding his crimes, are
unparalleled in our time. Regardless of your vantage point, Michigan State
University stands at the very center of those events. Because of that, a full and
complete accounting of what happened at the University is imperative.

Despite my best efforts, I have not received the necessary documents to

complete this review. The initial response of the University was to provide
documents that were almost entirely irrelevant, providing us tens of thousands of
documents that obviously played no role in the investigation, such as the Bed Bug
Management-Infection Control Policy.

On March 28th, in an attempt to address our concerns, we met with MSU

attorney, Justice Robert Young. While the meeting was beneficial, many documents
continue to be withheld or significantly redacted.

At present, we have received almost 75,000 documents. MSU, however,

continues to withhold potentially relevant information from my investigatory team
based on its assertion of the attorney-client privilege and the attorney work product
privilege.

MSU's attorneys send a Privilege Log each week that itemizes responsive
documents that have either been withheld or redacted by the University. At
Michigan Board of Trustees
Page 2
May 24, 2018

present, the log is already 111 pages long and includes over 1,500 emails, many of
which involve key persons of interest in our investigation. For example, emails to
and from William Strampel (who has recently been charged criminally for his role
in the Nassar matter) are included in those email communications that the
University refuses to release.

On April 11th, as a follow-up to our meeting, I sent a letter to Justice Young

asking that the University reconsider its assertion of privilege in response to
requests from this office. In the alternative, I asked that an independent third-
party review the documents that have been withheld or redacted in an attempt to
verify the University's assertion of privilege.

In response, Justice Young declined both our request to waive the privilege'
and for an independent review of the relevant documents. In his letter, Justice
Young correctly points out that "the University, like any other public institution,
enjoys the protections of privilege." The question in my mind, however, is not
whether MSU can assert privilege; the question is whether MSU should assert
privilege.

It is this Board that can waive the privilege, not MSU's attorneys.
Consequently, you must decide whether it best serves the interest of the people of
the State of Michigan- to whom you owe a fiduciary duty- to withhold information in
response to an inquiry by the State's Attorney General. If you decline to waive the
University's privilege, it will be virtually impossible to determine MSU's role in the
events surrounding the Nassar matter. In other words, we will be unable to
conduct "a review of the events surrounding the Larry Nassar matter"; a review
that you requested and to which you pledged your full cooperation.

In light of the aforementioned, I am asking that you waive any claims of

privilege and direct your attorneys to produce all documents withheld or redacted on
that basis. If you decline, I am requesting that you agree to the appointment of an
independent third-party to evaluate and verify the University's assertion of privilege.

Because Michigan State University, the survivors and the public are poorly
served by a protracted investigation, a response in writing to this letter by June 8
would be appreciated.

Sincerely,

William A. Forsyt
Special Independent Prosecutor

cc: Justice Robert Young

 STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
ossoEmsratz

P.O. Box 30212

LANSING, MICHIGAN 48909

BILL SCHUETTE
ATTORNEY GENERAL

June 15, 2018

Robert P. Young, Jr.

Vice President for Legal Affairs & General Counsel
Michigan State University
Hannah Administration Building
426 Auditorium Road, Room 494
East Lansing, Michigan 48224

Dear Mr. Young:

In reviewing your letter dated June 8, 2018, I wish to clarify several points for
you and any others with whom you have chosen to share your response.

Having been a prosecuting attorney for over 40 years, and the elected Kent
County Prosecutor for 30 years, I am very familiar with the "sacred American legal
principle" of attorney-client privilege. Notwithstanding your April 20, 2018, letter, it
is your client, the Board of Trustees, that can ultimately waive the privilege, not its
attorney.

Related to that point, when asking the Attorney General to investigate, the
Board •of Trustees pledged that it would cooperate with our review. While I
understand the Board may have legitimate legal reasons for not waiving its attorney-
client privilege, without complete information, I will not be able to conduct a thorough
investigation. Because the University's attorneys have to date withheld or redacted
over 1,500 emails identified as "attorney-client privileged," I requested to meet with
you before asking the Board to waive its privilege or, in the alternative, agree to an
independent third-party review of the documents that the University's attorneys are
claiming to be privileged. Consequently, we met in your offices at Dickinson Wright
on May 11, 2018.

I sought that meeting to discuss my request to the Board — your

characterization aside, it was a request, not a demand — because I believed that even
though the Trustees asked the Attorney General to investigate, it was best not to
communicate with them directly since they are represented by legal counsel After I
explained my request, I was told to put it in writing with the assurance that you
would forward it to the Board of Trustees. By any reasonable interpretation, I did
Robert Young
Page 2
June 15, 2018

not engage in an "end run around" you or any other attorney who may represent the
Trustees.

More significantly, your letter contends that it was inappropriate ("shameful")

to request that the Board waive its privilege. This point, which is repeatedly asserted
in your letter, appears to rest, in part, on a lack of familiarity with the criminal
investigatory process. It is a common investigative tool for a prosecutor to ask a
criminal defendant to waive the attorney-client privilege. For example, it is a protocol
often followed by prosecutors when entertaining claims by convicted criminal
defendants asserting their innocence and by the federal government when conducting
a corporate investigation.

Even apart from that, I must be sure that the University is not improperly
shielding documents from the investigation under the guise of privilege. In that
regard, the Privilege Log is already almost 200 pages long and, as noted, includes
over 1,500 emails, many of which involve key persons of interest in our investigation.
For example, there 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. Furthermore, our concern that MSU might be improperly
withholding information was heightened by an email produced by the University from
Chairperson Breslin to his fellow Trustees discussing non-privileged information but
directing them to copy legal counsel on their response in order to "protect client
privilege."

As I indicated at our May meeting, in the event the Board chose to deny my
request for an independent third-party review, I would have no recourse but to seek
a search warrant for the documents withheld or redacted by the University. It is not
my intention, however, to physically seize the documents. Rather, I will be requesting
that the University turn the documents at issue over to the Judge who signs the
search warrant so that the Judge, or a person appointed by the Judge, can review
them to determine whether they have been legitimately withheld or redacted. If the
documents are determined to be protected by the attorney-client privilege, they will
be returned to the University without this office viewing them.

One final point. In your letter, you suggest that the investigation seeks to
obtain the "legal advice" provided by the University to its employees. Not true. You
misunderstand what I am trying to obtain. 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. What
was known, by whom and when. For a variety of reasons, no investigator relies on
the target's own factual "summaries."
Robert Young
Page 3
June 15, 2018

As I mentioned in our meeting, I will call you once I have obtained the search
warrant to enable you to take what action you believe is appropriate. In the
meantime, if you have any questions or concerns, please feel free to contact me.

Sincerely yours,

William A. Forsyth
Special Independent Prosecutor

cc: John Engler, President

Bill Beekman, Secretary to the Board
Brian Breslin, Trustee
Joel Ferguson, Trustee
Dianne Byrum, Trustee
Melanie Foster, Trustee
Dan Kelly, Trustee
Mitch Lyons, Trustee
Brian Mossallam, Trustee
George Perles, Trustee
Bill Schuette, Attorney General