Judge orders UNC trustees to preserve records related to ex-provost’s lawsuit

A judge on Wednesday directed UNC-Chapel Hill not to dispose of any written communications related to allegations raised in a lawsuit by former Provost Chris Clemens.

Clemens, the former UNC provost who is suing the university and its Board of Trustees over what he says were violations of open meetings and public records laws, accused UNC trustees of using Signal — an encrypted and secure messaging platform with an auto-delete feature — to conduct public business. The same lawsuit alleged the approval of Bill Belichick’s hire, as well as other discussions pertaining to UNC athletics, occurred in illegal closed session.

In a motion last week, Clemens asked the court to require imaging of phones “to prevent ongoing and irreparable spoliation of evidence.”

But in a court filing Monday, UNC General Counsel Paul Newton called Clemens’ motion “procedurally improper and substantively unreasonable.” He further criticized Clemens for filing a motion rather than requesting records through “the normal public records process or even through civil discovery in the litigation.”

The resolution reached, at least for now, is somewhere in-between. Orange County Superior Court Judge Allen Baddour said at a hearing Wednesday that his order would not imply guilt on the part of UNC’s trustees, but would serve as a reminder of the law out of an abundance of caution.

Both sides described Wednesday’s hearing as a win.

“Today we demonstrated that the motion giving rise to this hearing was a waste of taxpayer funds and of the court’s time,” Newton said in a statement. “During the hearing, Plaintiff abandoned nearly everything requested in his motion, and his remaining requests were denied. Today’s hearing concluded with the University agreeing to an Order from the Court that requires the Trustees to do what they have already been doing — preserving evidence during the pendency of this litigation.”

Wes Camden, a partner at Williams Mullen who represented UNC on Wednesday, similarly characterized Clemens’ request for phone imaging as an expensive intrusion. To prove his point, Camden offered to call digital forensic expert Clark Walton to the stand to offer insight into the “costs and burdens” associated with a potential discovery process. Camden himself estimated the relief requested in Clemens’ motion could “easily exceed $200,000,” which he characterized as “wildly disproportionate.”

Walton was present in the courtroom, alongside Camden and several other attorneys for UNC, but Baddour said the court would not be taking evidence on Wednesday.

Both Camden and Newton insisted their clients, UNC’s trustees, understand their obligation to not destroy evidence.

“We appreciate the Court’s acknowledgement that Plaintiff presented no evidence that records have been improperly destroyed,” Newton said in a statement. “We remain fully committed to transparent and compliant governance. While we have serious concerns about the reckless disregard for taxpayer resources involved in this unnecessary case and the groundless attacks directed at many of our Trustee members by Plaintiff, we remain confident that we will prevail following a trial on the merits of the claims.”

In a statement issued to The News & Observer, attorney David McKenzie said he and his client, Clemens, will “respectfully proceed under the order” issued by Baddour. McKenzie said contended that the university’s attorneys opposed the preservation order.

“UNC now claims it was ‘already doing’ what the Order requires, even as it sent a phalanx of lawyers (and an undisclosed expert) to fight that very relief,” McKenzie wrote. “If preservation was in place, there was nothing to oppose. Calling our motion a ‘waste of taxpayer funds’ while deploying that expensive team to resist a basic preservation order is its own irony.”

McKenzie contends he abandoned “nothing,” and said he and Clemens reserve the right to “seek additional measures if the record warrants it.” McKenzie characterized the alleged Signal usage as an example of overreach on part of the trustees, bringing up the board’s involvement in Belichick’s hiring as UNC’s football coach during his argument on Wednesday.

“The public deserves better than governance by disappearing message,” McKenzie wrote in his statement. We look forward to orderly discovery so the facts can be tested under oath.”