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Davis' Lawyers Move To Quash The Subpoena

*Insert the Law and Order sound here*

Attorneys representing former UNC coach Butch Davis have moved to quash the subpoena requesting Davis' personal cell phone records.

Davis’ lawyer, Jon Sasser of Ellis & Winters LLP, wants a judge to quash the subpoena and enter a protective order, calling the subpoena “unduly burdensome, unreasonable and oppressive.”

Sasser argues that the subpoena seeks production of information that is no longer relevant in the case and that the phone records sought do not constitute a public record.

In May, Wake County Judge Howard Manning Jr. granted the media coalition’s request for UNC turn over phone records of Davis, former associate head coach John Blake and athletic director Dick Baddour.

The media coalition later subpoenaed Davis’ “personal” cell phone records. Communications conducted on behalf of a public entity on personal phones are not exempted from public review under the North Carolina public records law.

In an affidavit, Davis said the media’s handling of previous records requests has caused “an extreme amount of suffering and embarrassment” for him. He objected to his home address – albeit his former address – appearing in court papers that were posted online by media outlets.

He also said that in June of 2011, after UNC “produced certain records,” someone revealed his cell phone number to “unscrupulous individuals.” He said the same thing happened to the cell phone numbers of his teen-age son and wife.

Davis said his family received unsolicited calls from media outlets and “crank calls” from fans of other college football programs. According to his affidavit, Davis and his family were forced to change their contact information.

“As a former NFL head coach, and head coach of two college teams, I am well aware of the intense scrutiny directed at my profession,” Davis said in the affidavit. “However, as a private citizen, I also believe that I have a right to protect my own privacy as well as a duty to protect the privacy of my family, friends and business associates.”

Davis' concerns are well founded and completely understandable. Especially given how obsessed our lupine brethren have been about this whole scandal. The idea of crazies on Pack Pride getting Davis' phone records probably scares the crap out of him, his family and anyone who ever talked to him on the phone. The counter argument here is Davis had access to a phone issued by UNC for the purpose of doing his job and chose to conduct that business on his personal phone. Doing so opens that phone up to possible access via state sunshine laws. In other words, Davis made his bed so he may very well have to lie in it now, assuming the court sides with the media.

Speaking of the 216 records, according to the deposition offered by UNC associate AD of compliance Amy Herman in the media lawsuit the NCAA only asked for one coach's phone records, those belonging to John Blake.

"This was a joint investigation that was conducted by the NCAA and the institutional staff together. Ultimately, the way the process works is that the institution submits violations to the NCAA. The NCAA never submits violations to itself. So it's a self-governing organization, so we work together to determine when violations existed, and then we would self-report them, essentially to the NCAA," she said.

Herman said the university compliance office did not record those interviews or keep written records. As the start of the 2010 season approached, UNC was working quickly to determine which players would take the field. "We were dealing with those student athletes on a minute-by-minute basis. ... It was pretty much in our heads which student athletes were involved," she said.

After the first round of interviews was complete, the NCAA asked the university to search student-athlete email accounts for certain key words. In reviewing the emails identified in the search, Herman said, the compliance office noticed a possible academic problem. It then scheduled a second round of interviews with the implicated players.

UNC also wanted to talk to tutor Jennifer Wiley, but she declined. Since the compliance office has no standing over the academic support staff, they could not compel her to cooperate.

Herman said neither Dick Baddour, UNC's director of athletics, nor Chancellor Holden Thorp was interviewed as part of the investigation. Some members of the football coaching staff were interviewed, she said, and the NCAA asked for phone records from one coach, John Blake. Blake, an assistant, resigned from the team in September 2010 after the first game of the season. His phone and bank records appear to link him to professional agent Gary Wichard.

There are a lot of little nuggets in Hermans deposition, some of which will no doubt send ABCers into a frenzy. One is the fact Dick Baddour nor Holden Thorp were ever interviewed by the NCAA.  The other is the fact the NCAA limited their phone record review to John Blake(assuming my reading of it is correct.) The other is the lack of records for the interviews themselves. Herman is speaking of UNC retaining records of the interviews and not the NCAA. Based on reading various reports on other NCAA investigation, we know the ruling body keeps records of interviews because they are referenced. UNC did not keep their own records, possibly because of public access laws which would undoubtedly force their release.[Note: In reading the full deposition, Herman does state that the NCAA and UNC's outside counsel recorded the interviews but UNC "institutionally" did not. This was done so UNC would not have any records to turn over.]

As for the emails leading to the academic problems, Herman confirms what has been known for awhile. UNC did a fair amount of digging into student-athlete email accounts which turned up Jennifer Wiley's name and opened up the academic prong. One oddity is Herman said UNC could not compel Wiley to speak because compliance lacked standing over academic support. The oddity here is Wiley had been gone from academic support and UNC for over a year when the NCAA investigation started so I am unclear as to why the lines between compliance and academic support still mattered. The fact Wiley was no longer at UNC probably made compelling her to talk a difficult proposition anyway, without bringing any department jurisdictional issues into play.

Ultimately this is all more of a footnote to the scandal than anything else.