OK Supreme Court ‘rubber stamps’ denial, rules OU misconduct reports privileged

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I still believe Oklahomans deserve to know what misconduct the Jones Day law firm identified at the University of Oklahoma.

Parents, taxpayers, donors, tuition-paying students, faculty and staff never received a clear explanation about how decades of fraudulent donor data reporting inflated OU’s national rankings, or how former President David Boren improperly wielded power dynamics and professional opportunities to pursue sexual gratification from young men who admired his many achievements.

Sure, the Oklahoma Supreme Court’s majority wrote Tuesday how it was “undisputed” that OU “received allegations of university personnel misconduct concerning (1) fraudulent reporting of alumni information to news organizations, and (2) sexual misconduct.”

But the seven-justice majority stopped far short of the ethical, moral and legal responsibility Oklahoma’s third branch of government is expected to provide, instead ruling OU’s two investigatory reports can be kept private under an attorney-client privilege the court extended into perpetuity.

As a result, it’s been a sad week for truth and transparency in Oklahoma. As the plaintiff on the business end of a disappointing Supreme Court opinion that casts a cloudy forecast for future investigations commissioned by public bodies, I encourage you to read the full majority and dissenting opinions for yourself.

For those who rely on us to summarize court cases, however, here’s my best commentary-labeled effort at explaining some things worth noting.

‘Pending’ problems

Justice James Winchester’s 15-page majority opinion in NonDoc v. OU holds that Oklahoma’s attorney-client privilege covering communications with a public agency about a “pending investigation” actually extends eternally. In the view of Winchester and most of the court, any document created while an investigation, claim or action is “pending” forever retains the privilege.

“We cannot inject an expiration date on an otherwise valid privilege,” Winchester wrote. “There is nothing in the statute or our case law which supports such a holding. (…) The attorney-client privilege does not hinge on the timing of an open records request for confidential information. To the contrary, the key factor is whether the investigation or action was pending at the time the confidential communication was made. Simply put, nothing in the statutory language forfeits a valid attorney-client privilege merely because the underlying matter has concluded.”

Winchester’s logic seemed valid enough to Justices Dana Kuehn, James Edmondson, Douglas Combs, Noma Gurich, M. John Kane IV and Travis Jett, who joined his opinion. (Justice Richard Darby recused.)

But Chief Justice Dustin Rowe’s 22-page dissenting opinion emphasized an important “and” in the criteria for public bodies to claim attorney-client privilege under Title 12, Section 2502(D)(7):

D. There is no privilege under this section …

7. As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest. (emphasis added)

Rowe wrote that “even assuming the majority is correct” about how to interpret the permanence of the word “pending,” the proper legal “application of the privilege requires a two-step analysis.”

“The majority’s analysis fails to address the second step,” Rowe wrote. “For the privilege to apply, the communication between a public body and its attorney must (1) concern a pending investigation, claim, or action and (2) the court must determine disclosure of the communication will seriously impair the public body’s ability to conduct the pending investigation. The second step of the privilege demonstrates it solely protects a pending investigation from disclosure if it will seriously impair the public body’s ability to conduct the investigation. As a matter of law, how can the court make a finding that disclosure of the reports will seriously impair the ability of the university to conduct its pending investigation, when the investigation concluded four years prior? The answer is straightforward; it cannot. A completed investigation cannot be impaired.”

Winchester, however, did not address the privilege statute’s combined requirement that a court determine disclosure would “seriously impair” a public agency’s “pending investigation.” Instead, he warned that “invoking an expiration date on the privilege would create a chilling effect on the attorney-client relationship and curtail the open and honest lines of communication by the threat of its imminent disclosure.”

“Under the NonDoc’s rationale, any curious outsider could request the confidential communications of a governing body merely because the matter, pending at the time of the privileged communication, has since concluded,” Winchester wrote. “Attorney-client communications in all closed investigations, cases, and other actions across all bodies of government would be subject to exposure. The purpose of openness in government is not fostered by the disclosure of such confidential communications. Instead, such disclosure would completely frustrate the purpose and intent of the attorney-client privilege and wreak havoc within the government.”

Perhaps underscoring a desire to end the five-year litigation once and for all, Winchester’s opinion sidestepped an actual standard of legal review it purported to undertake.

In December 2024, Cleveland County District Court Judge Michael Tupper granted OU summary judgment in a sweeping order that claimed no genuine dispute remained as to how the Jones Day reports were created or handled. Our appeal to the Oklahoma Supreme Court emphasized that Tupper improperly granted summary judgment by ignoring clear questions of disputed fact, but Winchester offered little ink to analyze those issues.

Instead, as Rowe wrote in dissent, Winchester’s majority opinion simply “rubber stamps the district court’s findings.”

Key among the facts in question were numerous details and potential evidentiary documents illuminating whether OU had waived any claim it could make for attorney-client privilege by sharing one or both of the Jones Day reports with:

• the Oklahoma State Bureau of Investigation;
• the attorney for David Boren;
• Jess Eddy, a former teaching aide who accused Boren of misconduct;
• “multiple crisis management public relations firms”;
• U.S. News & World Reports; and
• “numerous undisclosed alleged victims.”

At the district court level, OU claimed it had not waived privilege owing to subpoenas and a “joint interest agreement” signed with OSBI, although the university refused to produce those documents during the case. Meanwhile, OU argued it had no choice but to share the sexual misconduct report with Boren and Eddy owing to Title IX requirements under federal law.

Underscoring the disputed facts that should have precluded Tupper’s summary judgment, numerous contradictions exist to OU’s claim that Jones Day was conducting a formal Title IX inquiry.

For instance, the firm’s contract to investigate sexual misconduct complaints included no reference to Title IX, and Eddy’s initial request to review OU’s Title IX investigation into Boren was denied even though he had been interviewed twice by Jones Day. (Once Eddy formally filed a Title IX action, OU provided an excerpt from Jones Day’s sexual misconduct report, which deemed him “generally credible.”)

“The district court held that confidentiality was not waived since the disclosures were not voluntary,” Rowe wrote in his dissent. “The case before us contains a litany of questions of fact and numerous conclusions of law. A record this intricate — with issues of first impression — requires exacting scrutiny on appeal. As such, I cannot accede to the majority’s holding which simply rubber stamps the district court’s findings by assuming Title IX controls and that the joint interest agreement exists. Upon thorough review of the record, whether the university waived any privilege — if any are found to be applicable — remains an issue of material fact.”

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Inconvenient truths

As Tuesday’s ruling reminds us, an impressive number of people have worked to hide an inconvenient truth for decades: that Oklahoma’s institutions and influencers protected one of the most powerful people in state history despite repeated accusations of serial sexual predation.

That is the story buried within the “sexual misconduct report” held by the University of Oklahoma and deemed privileged by state judges.

“Mr. Eddy’s account of President Boren’s sexual advances is generally consistent with and similar to the accounts of others among The Six Witnesses,” Jones Day’s attorneys wrote in the four-page excerpt released by Eddy in 2019. “In particular the hotel room evenings described by SAIII and the President’s Office meetings described by SAXII.”

Ultimately, only one Oklahoma Supreme Court justice came remotely close to recognizing the facts, genuine disputes and overall importance of the case we have fought to win for the last five years.

In the end, we did not win, but I am extremely proud of our legal team, which is more than I can say for some of the shenanigans I witnessed along the way. As OU attempted to kick the public out of Tupper’s courtroom in 2024, I’ll never forget watching a former federal judge argue on my alma mater’s behalf that the U.S. Constitution is just “all these words” that “mean nothing.”

That was a particularly embarrassing moment for our state, and it emphasized how far some people would go to keep a lid on what independent investigators learned about a two-decade culture at the University of Oklahoma.

Over the last six years, however, I have deeply appreciated the efforts of many who have worked to improve OU’s leadership climate and governance processes. I plan to continue attending OU’s Board of Regents meetings, supporting its journalism programs and cheering its athletic teams. Along the way, I hope our newsroom can report how significantly bond ratings have improved, articulate the value of a fully-integrated academic health system and finish a data-heavy story about grade inflation that I failed to complete as an undergrad.

At the same time, we remain committed to finishing other important stories that have lingered along with this litigation. That, too, is probably an inconvenient truth for some people to read, but I thank them for reading just the same. Please remember our Contact Page and P.O. Box number, should you find anything that needs to be included in the stories.

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