Many victims won’t talk to an investigator who cold-calls and hearing from someone else that they know, that they themselves went through something bad like they did really does open doors. In SafeSport matters, the more people they have lining up as complainants or affirmative testifiers to abuse, the easier it is to get a case moved forward (and possibly through arbitration). There are clearly at least two women now willing to come forward against BM and there could be another six who will go on record as having been abused by BM and record their respective specific testimonies as evidence in an investigation, but won’t give any personal testimony in arbitration, as is their right. In the end, it comes down to getting as much evidence as you can to build a case.
It’s one thing to say “if you’re in contact with victim 2 and you feel comfortable sharing, you can tell her we spoke and encourage her to contact me” and “please go interview victim 2 and tell me what happened to her” but unless your instructions are crystal clear they can get misunderstood.
Whoa. 6 other possible victims?
I was speaking hypothetically, to make a point. Given the age of BM and when he was said to be doing what he did, six seems like a plausible number. It could be more or less, but there’s a large chunk of time where he certainly could have been abusing and there’s so much unknown about what went on back then, including why his first wife left him. His first wife apparently backs him up and says she had no knowledge of any abuse on his part, though it’s hard to say if she’s just playing safe or genuinely being truthful, as she could certainly have been involved.
Ahhhh - gotcha.
There are definitely many question marks. If the allegations from Jane Doe 1 & 2 are true… this is the sort of behavior a predator is unlikely to just spontaneously stop.
Yes, that could also be the case. It’s difficult to say without knowing exactly which documents were provided. If the docs were part of evidence presentation to SafeSport, they would be listed on a reporting sheet. If those sheets were provided, rather than the evidence sent to SafeSport, as it was prior the sending, your theory could very well be plausible.
The following passage from Scott Reid’s Feb. 2021 article sheds some light on the documentation he saw before going to print:
“This article is based on more than a 100 pages of confidential SafeSport documents including the center’s formal notice of decision, and the 50-page “Confidential Investigation Report” outlining the findings of the center’s six-month investigation as well as emails related to the case.”
The thing is, once alleged victims see publicly that a person who allegedly sexually assaulted them has been banned from a sport on Safesport’s website, victims tend to find the courage to reach out to one another. In short, when those who shared the same or similar experiences see that others have come forward, in this case, via the lifetime ban listed on the site, (especially prior to arbitration) there is really no way to stop them from reaching out to one another.
SafeSport may hope this happens- in order to build a stronger case against the respondent. Or, they may want to observe what happens - to see if others come forward and decide if it’s a “weaponization,” of SafeSport- which would fall under “abuse of process,” “retaliation,” etc, or, some very true, very terrible experiences being shared.
As an aside, I don’t believe the “it was just the way of the times back then,” is going to be a compelling enough reason to excuse the alleged rapings of fourteen year old girls. Or, the alleged “grooming,” of the same. I can’t think of anyone I know who only coerced teens into sex in the 70’s but changed their ways later in life.A leopard can’t change his spots. Further, I can’t think of anyone (over about 19 or so) who would try and have sexual relations with a pre-pubescent kid.
In that case, it’s difficult not to question Safesport’s methods and security measures to “protect,” evidence (all deemed to be “confidential) provided the Center. It doesn’t seem to have been subpoenaed by a judge. However, I’d guess the Jane Doe’s had representation prior to making a report. Those docs are their own. Unfortunately, as soon as a JD with representation provides docs to anyone else- which maybe exchanges between her attorney & SS, she can no longer invoke “client/attorney privilege,” should she ever be deposed.
It’s all a double edged sword. I’d say this case in particular is the case to closely follow and see what pans out. All I know for sure is this: victims of a predator will always find each other. If a story is true-.there will be reluctance from other victims to officially come forward If a story is a lie or a cry for attention- there will be “victims,” attempting to shout it from the highest mountain tops. Here, the former seems more likely. What are your thoughts @Virginia_Horse_Mom ?
Giving something to your lawyer does not cloak the preexisting document with attorney client privilege. Maybe I’m misunderstanding what you’re saying here.
Confidential is not the same as privileged.
Also it’s possible that Reid was able to get the records via FOIA, which might be possible even if the records were at some point deemed to be confidential.
Or SS shared these documents with the Janes Doe and they gave them to Reid.
We don’t know how he got the records. Any of the several explanations posited on this thread are possible. We just don’t know.
No, giving something to your lawyer is automatically cloaked by client/attorney privilege. Sharing anything you have given or been provided by your lawyer, with any other person whatsoever, removes the cloak of privilege. Even an email, or one single text. Once it’s shared outside the realm of that which has been shared between client and said client’s retained attorney - (including a parent, a bff, a SO etc,) it is no loner, by definition, “privileged.”
The first part of this is not correct. If I have a letter between me and my non lawyer friend and I hand that letter to my lawyer, the letter does not become privileged.
And the second part is missing the nuances of who may be included in the privilege.
It seems likely to me that most of the documents Scott Reid saw before writing the February 2021 report for the OC Register came directly from the Jane Does. He mentions having viewed a decision notice, e-mail exchanges and a confidential investigation report. Jane Doe definitely would have copies of the decision notice and e-mail correspondence… but would she actually have a copy of the confidential investigation report after the SafeSport case was administratively closed back in August of 2020? That, I don’t know. SafeSport sure would have a copy of that report though, and I think they were involved with sharing it with the OC Register reporter.
Here’s my gut on what happened… think back to August 2020. When the Jane Does made the decision not to participate in the arbitration proceedings (which were then scheduled for October of 2020), SafeSport went ahead and administratively closed the complaint, at which point the ban on Bob McDonald was lifted. The McDonald’s then both came out with public statements… and Bob’s in particular was quite bold, and specifically claimed that he had recently submitted “new evidence” to SafeSport, and been “cleared” , and that was why the case was closed and the ban was lifted.
I think when the McDonald’s engaged in this PR offensive, they made a significant error. By speaking about the investigation and decision publicly in this manner… they too were violating the confidentiality rule. And they were the first ones to make any public comment on the details of the complaint and decision, as well as the first ones to make any reference to specific evidence that had been submitted. So they opened the door, on some level, for others to speak publicly.
I suspect SafeSport still considered and respected the rights of the two Jane Does to confidentiality. But if the Jane Does had independently gone to Scott Reid of the OC Register during fall/winter of 2020, and shared their story with him, & if Reid then later contacted SafeSport for comment and corroboration of their story… I think SafeSport was in a position at that point to provide it to the reporter. Because by then, both the complainants and the defendants had gone public with some aspects of the case.
Dan Hill, spokesman for SafeSport, did go on the record with Scott Reid in the February of 2021 article and state outright that the McDonald’s August 2020 claim that Bob had been “cleared” in this case due to the submission of “new evidence” was “not true.” That’s a pretty specific and strong statement, and it goes to show that SafeSport was NOT happy with the McDonald’s PR push in the aftermath of the administrative closure.
Last thing… keep in mind that the two Jane Does got new legal counsel at some point after August of 2020. I’m not sure if they were represented by their prior attorneys or new counsel when they cooperated with Scott Reid for that OC Register article… and I’m not sure it will really matter when it comes to the civil suit. But they do have new counsel now. And their new counsel seems to be focusing them on pursuing the civil case first, then circling back to the SafeSport complaint.
I’ve been following this case and remember some things a bit differently. I thought that at the point that the arbitration was called off, it had been scheduled for the next week, not two months out.
I do remember McDonald saying that he had sent an email to SS with clarifying information, and the next day SS closed the case. He also claimed that he had been “cleared” of the charges.
He did not reveal the content of the supposed clarifying information, and I doubt that many people bought his claim that he had been cleared. (SS deciding they might not win in arbitration is not the same thing as being cleared.)
But I don’t really see your argument that his PR spin amounted to breaking the confidentiality of the investigation. I’m hoping that all the confidential information came from the Jane Does and not from SS itself, as I think that would be a violation of SS’s responsibility for confidentiality.
As the name of the thread points out, there are lots of people attempting to undermine SS, making it important that SS lives up to its own rules.
“As the name of the thread points out, there are lots of people attempting to undermine SS, making it important that SS lives up to its own rules.”
Totally agree. I’m with you 1000 % there. I think what @Virginia_Horse_Mom was saying was, (correct me if I’m wrong VHM) the moment the R/DMD’s made a remarkably loud and defensive statement wrt the SafeSport ban being lifted, “confidentiality,” left the building.
Also, SafeSport has made mistakes. Not a perceived mistake, or mistakes, but “caught red-handed,” (as they say) type of mistakes. When confronted - even at the highest levels, with evidence to show huge inconsistencies & sometimes, outright lies, they protect their own. This is why, IMHO) I agree with VHM in that the JD’s distrusted their respective investigators (they likely had different one’s at first, but SS eventually assigned one investigator to combine the case) or distrusted the sudden switching around & n longer felt that SS was capable of properly handling a case if this magnitude.
Plausible? For sure. For sure that’s what happened? Not necessarily. But pretty darn plausible.
[quote=“vxf111, post:1782, topic:463807, full:true”]
The first part of this is not correct. If I have a letter between me and my non lawyer friend and I hand that letter to my lawyer, the letter does not become privileged.
And the second part is missing the nuances of who may be included in the privilege.
Then, by all means, on your number 2, take your time & fill in every “nuance,” which you believe would include or exclude other persons - aside from the client and attorney retained from “client/attorney privilege.” Be my guest. I’ll review it and let you know if you assertions are correct.
Your first statement is definitely incorrect insofar as that, if you provide a letter to your attorney, which was “handed to you by your non lawyer friend,” you can invoke privilege if and when you are deposed. Your friend cannot. Even if your friend were an actual attorney, unless you officially retained her/him, she/or he still could not invoke “privilege,”in the event that she/he maybe deposed. I guess I’m unsure of your point, since a random friend giving a friend a letter, has no relevancy here. If I missed the relevance, happy to here it.
ETR- the second “actual,” in an above sentence.
I understood the “relevance” of this to be the fact that you were stating that whatever documents SS and/or Jane Does 1 and 2 had were privileged until they turned them over to Reid and/or SS and then they became unprivileged. I responded that the presumption was wrong to the extent the documents they shared with Reid/SS were never privileged in the first place. You then argued that even a non privileged document could become privileged by being handed over to an attorney. I responded that your assertion was wrong. And that’s why I’m now trying to gently correct the misstatements you’ve been making about how attorney client privilege works. I am not sure how any of this is relevant to SS except that you brought up the issue of privilege and then made incorrect statements about how attorney client privilege works which I am correcting. I find your posts a little jumbled and hard to understand so perhaps I was misunderstanding why you brought up privilege in the first place? But at any rate, it is not true that giving a non privileged document to a lawyer cloaks it with privilege, that all communications with a lawyer are privileged, or that the disclosure to ANY third party waives the privilege.
I don’t know any nicer way to say this but you are simply wrong. Taking a non-privileged communication and giving it to your lawyer does not cloak that non-privileged communication with privilege. This is a basic and fundamental principle of how attorney-client privilege works. The privilege applies only to certain communications between an attorney (and or his/her team) and a client. You cannot protect a pre-existing document that is NON PRIVILEGED from disclosure by giving it to your attorney. The document would still be discoverable. Either party to that non privileged communication could be deposed about it and would be unable to invoke privilege to prevent having to discuss the communication. You are simply incorrect about this.
Now the fact that you discussed the letter with your lawyer WOULD be privileged. YOU could not be questioned about that communication between you and the lawyer in which the two of you discussed the letter. And the fact that the lawyer considered how the letter might impact the case would be privileged too (work product). But the letter ITSELF would not be privileged simply because you gave it to your lawyer.
Stop and think about how your version of the rule would work in practice. Wouldn’t every client take every incriminating scrap of information and give it to his/her lawyer? So then none of it would ever be disclosed? When information is produced in discovery, isn’t it reviewed, bates numbered, and organized by the lawyer prior to production? Under your version of the rule, the mere fact that the discovery passed through the lawyer would make it privileged. There would be no civil discovery at all, under your version of the rule. Lawyers would just be huge repositories of communications clients didn’t want shared. There would be no need to litigate at all, just hoard all the communications like a dragon sitting on a pile of coins.
As to the nuances, there can be non-lawyers and non-clients on a communication without the privilege being vitiated. For example if a client meets with a lawyer and that lawyer’s paralegal, the discussion could still be privileged notwithstanding the presence of a third party (the paralegal) who is neither the client nor the lawyer. Or if a client wrote an email to the lawyer and the lawyer gave it to his/her legal assistant to read and respond, the fact that a third party (the legal assistant) who is neither the client nor the lawyer also does not vitiate the privilege. Or if the client speaks Spanish and the lawyer does not, an interpreter could be present to translate the communications and the presence of this third party (the interpreter) who is neither the client nor the lawyer also does not vitiate the privilege. There are some court decisions indicating that the involvement of a client’s spouse does not vitiate the privilege (and there are courts that say contrary, the caselaw is mixed on this point). So there are some nuances to the question of whether sharing an attorney-client communication with a third party vitiates the privilege.
And there are also nuances as to whether all discussions between an attorney and a client are privileged in the first place. The communication has to be for the purpose of seeking legal advice. If I am a client and I call up my lawyer and ask for business or personal advice, the mere fact that there is a communication between a lawyer and a client does not vest the conversation with privilege.
And there are exceptions, such as the crime-fraud exception. If the client consults the attorney for advice on committing a crime, the communication may not be privileged.
Before you tell me if my “assertions” are correct maybe you can tell me where you’re barred? I’m barred in PA and NJ and I teach this subject in two different classes (it’s both a part of Evidence and also a part of Professional Responsibility) at two different law schools.
Take a look at the most recent COTH article about the lawsuit against Bob & Debbie McDonald. In the article, they walk through the timeline of key events related to this case, and they actually have the statement Bob made at the time his SafeSport ban was lifted, back in August of 2020. Here it is…
“Last week I provided additional information to SafeSport in advance of my arbitration hearing that was scheduled to take place in October 2020,” he said in an August 2020 email. “On Thursday, Aug. 20, [2020,] I received an email statement announcing all sanctions had been lifted, my name had been removed and my case closed. The accusations are false. They have always been false and are now proven false. My family and I are relieved to have these accusations behind us. To all of you that emailed and spoke up on my behalf, I can not thank you enough.”
So, it does seem that the arbitration was in fact scheduled for October of 2020. As far as the confidentiality of the process. and my assertion that McDonald’s public statement was a serious error that opened a door… I hold firm on that opinion. He blatantly misrepresented the facts of the situation when he claimed that the allegations against him were “proven false.” When he made a public statement about how the investigation had concluded that the allegations were proven false, I believe it opened the door for the victims/SafeSport to make a counter statement that corrected the record. Furthermore, McDonald specifically stated he provided ‘additional information’ via email to SafeSport in August of 2020, and that they emailed him back within days, and lifted the sanctions against him, and closed his case. His statement intentionally is designed to make people believe his name was cleared because of that ‘additional information’. But what if he is misrepresenting this as well? What if no such sequence of emails and events happened? Are SafeSport and the victims still bound by confidentiality requirements, and not permitted to rebut McDonald’s public claims?
The fact of the matter is that the February 2021 article in the OC Register was most certainly a focused rebuttal of both of McDonald’s public claims, complete with comments from both Dan Hill of SafeSport, and Jane Doe #1. Specifically, right at the start of that article, the reporter lays out the following:
“ That community was rocked again when the U.S. Center for SafeSport announced just two months later it was issuing an “administrative closure” of the case prior to an arbitration hearing, resulting in McDonald’s ban being lifted.
McDonald said at the time the allegations had been “proven false.”
But the U.S. Center for SafeSport this week said it continues to stand by its initial findings that McDonald, according to previously undisclosed confidential SafeSport documents obtained by the Southern California News Group and interviews, had sexual intercourse with two underage girls in the mid-1970s.
The U.S. Center for SafeSport found McDonald had sexual intercourse with an underage girl on “many occasions” in California over a nearly two-year period, as well as during a vacation trip to Nevada, according to SafeSport documents obtained during an eight-month investigation by the Southern California News Group.
SafeSport “ultimately found by a preponderance of evidence that (McDonald) 1) engaged in sexual intercourse on numerous occasions, with a minor athlete between January 1974 and December 1976. 2) Engaged in sexual intercourse with (the second teenager), a minor athlete, in Spring 1974,” according to the center’s confidential June 10 notice of decision.“
Sooooo… this seems like a direct rebuttal of McDonald’s August 2020 public statements. In addition, when it comes to his claim that he provided additional information to SafeSport in August, and then they administratively closed the case, the February 2021 OC Register article lays out the case that this is utter BS as well:
“ SafeSport officials decided to issue an “administrative closure” because of the reluctance of the two alleged victims to participate in the arbitration process. The victims each had concerns about how the center had conducted its initial investigation, according to four people familiar with the case and SafeSport documents.
SafeSport has the option of reopening the case, the spokesman said.
McDonald alleges SafeSport dropped the case after he provided the center additional information prior to an arbitration hearing triggered by his appeal of the lifetime ban.
SafeSport, however, in especially strong terms for the center, said both of McDonald’s assertions that the allegations against him were “proven false,” and that the case had been dropped because of new information, were “not true.”
“Absolutely not,” Dan Hill, a spokesman for SafeSport, said this week.
“The center is aware of his statement and it is not accurate as far as the center’s position,” Hill said.
Any additional information McDonald might have provided SafeSport, Hill said, had “absolutely nothing to do with the center’s” decision regarding arbitration.“
So here we now are. I understand @La-LaPopRider ‘s point to be careful about assuming SafeSport is 100% a “good guy” in these situations. They certainly were created to try and deal with a crisis of sexual abuse of athletes across multiple Olympic Sports… a crisis which had the potential to bankrupt multiple NGBs. It’s undeniable that SafeSport shields the NGBs from liability in some key ways… and that is by design. La-la is also correct in her statements that SafeSport is not infallible… they’ve made some big mistakes in a few key cases. And the investigator assigned to this case CLEARLY didn’t handle it optimally, given that two key witnesses backed away from testifying at arbitration. But let’s not take all that, and start leaping to the conclusion that:
- SafeSport made some sort of significant and unethical error violating the spirit of confidentiality rules when they commented to Scott Reid for that February 2021 article,in an obvious attempt to correct the record after McDonald’s false representations from the prior August
And
- SafeSport secretly tries to tank cases like this through straight up incompetent handling, thus protecting big name people with close ties to various NGBs from accountability for sexual abuse.
I think both conclusions are a stretch too far. Just my opinion.
Take 'em to church! All of this, and more.
I am barred in NY and DE and I know some of this from law school, the bar exam, and limited practice.
But what I know 100%: even though I am a practicing attorney, I know that when it comes to a subject as technical and nuanced as privilege, I stay in my lane (transactional) and let my litigation colleagues tell me what is and what is not privileged. I would never, even as an attorney myself, display such breathtaking arrogance as to tell a litigator and/or Evidence/Prof. Resp. professor that I would review their explanation and let them know what they did or didn’t get right.
Even though I’m transactional, my firm was involved in litigation so enormous, that we were all drafted to help out at some level. I did document review for privilege. Everything @vxf111 is 100% accurate. Even if the participants are only the attorney and client, that does not necessarily mean the communication or work product is definitely privileged. It must be a certain type of communication or work product. The 90 million docs in our case went through 5 levels of review, anything questionable tagged for the litigation partners’ final review.
It’s technical, it’s complicated, and anyone with a modicum of sense leaves it to not just legal professionals, but specifically legal professionals who have expertise in the area, not just any lawyer. As mentioned, if all you had to do was run to an attorney to whom you’d given a peppercorn and document dump on them to get privilege, discovery would be meaningless. That’s a pretty simple concept any lay person should be able to grasp.
Exactly. Plus, even after a case is administratively closed, the confidentiality code still applies! SafeSport made a statement when the correct action according to their own rules & regs would be to sanction him again for violating those rules. Instead, they took that op to tell the public how incorrect McDonald was in effort to save face. And just like I’ve been saying all along, SafeSport was not going to sanction him on confidentiality breach (also “abuse of process,” ) or anything else. I fully believe the JD’s saw this early on, saw there was (perhaps) a serious bias taking place but couldn’t put together the “why’s,” of it all. So they bailed and did what they thought would provide them a true opportunity to get the truth out- took it to court. With real judges and juries and all! It’s difficult to fault them for that. In fact, expect to see this method used in the future - and for the very same reasons.
That went of the tracks for a second, but, I agree with your statement 100 %. SafeSport is not going to fight Howard Jacobs - not bc he is “the best,” (he is not) but, bc he represents the entirety of those who make up the USEF’s “VIP’s,” and their most special buddies. If I were advising these JD’s, I’d tell them to hire a firm whose partners have argued before SCOTUS - a place where Howard Jacobs couldn’t locate with an old fashioned map or Google maps- or the most high tech navigation. Let alone ARGUED a case before a single SCOTUS justice. If you’re going to fight an entire organization (or two, if we include Safesport) - two very well funded organizations- hire a firm who sees those organizations & thinks, “USEF VIPS & SAFESPORT? Ppffft! Welcome to DC …. let me give you a tour of the Congress floor and get him (Jacobs) a 15 minute viewing of a SCOTUS hearing. We’ll provide Mr. Jacobs a map of how we got there. He won’t find it on Google Maps.”
In other words- Blue chip firm- lined to the teeth with top international attorneys & even more “take no BS,” partners. That’s what these JD’s may need. If you’ve suffered a battle with PTSD all your life, bc you were victimized in the worst ways & have found the courage to come forward, you must prepare yourself for the battle of your (and for your) life. After all, it’s their lives they are trying to make right again. Hopefully, legal justice will prevail for all involved.
