UC President Tells Katehi She Has No Right to Attorney-Client Privilege

Chancellor Katehi in February
Chancellor Katehi in February

(From Press Release from Katehi’s Legal Team)  – The University of California Office of the President (UCOP) has made a controversial determination that UC Davis Chancellor Linda Katehi does not have the right of privileged communication with her attorney during the course of an already compromised investigation launched in late April.

As reported in the Sacramento Bee this morning, the UCOP has now demanded that Chancellor Katehi turn over attorney-client privileged and confidential information contained in her work phones and computers.  Citing “university policy” that says UC owns the devices and therefore can confiscate them at any time, UCOP now seeks to violate California laws protecting privileged communications between a citizen and her attorney.

According to Chancellor Katehi’s attorney Melinda Guzman, “The attorney client privilege is a fundamental right in California law that protects communications between attorneys and clients. By seizing all data in these devices, UC is demanding that we waive that privilege.”

Guzman continued:  “Californians also have the protection of the Electronic Communications Privacy Act enacted in January 2016.  That law clearly protects authorized users – and not just owners – of devices.”

Melinda Guzman expressed her concern.

“Why should a Chancellor have fewer privacy rights than a private citizen under investigation for a crime? Should a court decide that there is reasonable doubt of illegal behavior and issues a warrant, and then she will comply with the law. Until then, she has her legal right to privacy like anyone else,” Guzman said.

The UCOP, as it has often done since the beginning of this compromised “investigation,” took to the media and characterized the call for legal due process as somehow a bad thing.  Yesterday’s Bee story said:

UC officials said Katehi asked to choose the vendor that would decide which messages are privileged. “They would hire the person to take out what they want to take out and give it back to us, and that is not acceptable, nor is it in any way independent,”[UCOP spokesperson Dianne] Klein said.

Chancellor Katehi’s spokesperson Larry Kamer said:   “Wrong. This is the usual process used in any litigation matter. It must be followed here.”

Guzman further states:  “To be clear:  our proposal is to allow us to use a respected vendor, and to allow us to review the data to identify privileged and confidential information and to then remove that from the report. It would be preserved in a log if it ever needed to be produced, if ordered by a judge.”

Another problem pointed out by Kamer is:  “UCOP isn’t even following its own rules and stated policy.

“These require UCOP to identify what it is seeking and why, and to follow a process to obtain access the information. UCOP’s approach amounts to little more than a fishing expedition.”

Finally, Kamer points out:  “As with all unjustified overreach, there is the inevitable spin that makes it sound all-so-reasonable.  Recall this investigation was launched via press release, before Chancellor Katehi was formally informed.  UCOP’s media office has been busy characterizing everything from Chancellor Katehi’s motives to her level of cooperation while coyly suggesting that it’s not commenting at all.

“It’s time for this investigation to be scrapped, started over, and conducted in a way that protects both Chancellor Katehi’s legal rights, and her right to a fair hearing,” Kamer said.

(Correction: the original version of this article misattributed a quote by Melinda Guzman to Senator Mark Leno).

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111 comments

  1. I can tell you with certainty that if a regular staff member at UCD was under investigation the University would have these University owned devices immediately.  Katehi shouldn’t have used University owned computers for private conversations. Every staff members is aware of this.

    1. Attorney-Client privilege aside, she used a taxpayer-bought phone to further her commercial activities.

      How does she think this will turn out? Employee of the year?

      All she wants is a fat severance.

      Conversion of public assets for personal gain is “moral turpitude” which is the reason to take away her robe of tenure.

      And yes, Ryan, exactly true.

       

      1. Read down a little more and you will find that UC policy allows its employers to use university owned device for personal activities.

        You seem very certain about Chancellor Katehi using the university devices “to further her commercial activities”. Do you have access to the contents in these devices? Do you have evidence that we haven’t seen? If not, then your accusations are simply unfounded. If yes, care to share them? 

        Conversion of public assets for personal gain is “moral turpitude” which is the reason to take away her robe of tenure.

        I don’t think you know what you are talking about. All hate and no reasoning.

  2. This article is badly in error.  Attorney-client privilege is never absolute and must be carefully preserved or it will be deemed to be waived.  If Ms. Katehi shouted a communication to her attorney across a public space, the communication would not be privileged.  Similarly if she communicates with her lawyer through UC-owned devices.  It is characteristic of Ms. Katehi’s actions that she treats University property as her own.  It is not.  The UC’s position on this is at the least reasonable, whether or not upheld on adjudication.

    The Vanguard seems to have developed an inappropriate, and unfortunate, pro-Katehi bias.  I hope it corrects this quickly.

    1. That’s an interesting point – can you cite the case law that suggests that attorney client privilege is waived through communicating on a UC-owned device? How far do we extend that – a conversation on a land-line can be tapped? I’m skeptical.

      In terms of the pro-Katehi bias – it’s not even our article, it’s a press release from her legal team.

      I’ve been accused of having a pro-Katehi bias now and previously it was an anti-Katehi bias. The realty is that I don’t have a bias either way, we provide a site to disseminate information and in our own pieces, I call it as I see it and that changes from issue to issue.

      1. And the beat certainly goes on in this unfortunate situation. If ryankelly’s citation of the policy is correct, why don’t they just take the devices, oh right she refuses! As he points out no other employee could do this. They should have escorted her out of Mrak Hall and taken her devices the day she was put on leave. Am sure UC regrets that now.
        I do not think the DV is biased one way or another; this case is so messy, I believe many of us have gone back and forth as t has unfolded.

        1. SODA

          They should have escorted her out of Mrak Hall and taken her devices the day she was put on leave.”

          It was damn and stupid but technically  it was difficult to do to send  UCD cops to Chancellor office and try to escort Chancellor out of campus in lights of  video phone cameras. I don’t believe that regents would go for and let Napolitano to exercise her power this way. If she would do it on her own than she would be done and regents would fire her on spot for such unwanted publicity .

      2. David

        You have to be controversial and to be criticized as a owner of the Vanguard and the Vanguard writer and it nothing to do with bias . Otherwise Vanguard would became  the “In and Out” menu.   I don’t like myself some stuff on Vanguard but I am writing some stuff others don’t like as well and vice versa . This is a whole point with the freedom of expression .

      3. can you cite the case law that suggests that attorney client privilege is waived through communicating on a UC-owned device?

        As with most matters involving privileges, it’s complicated and based on the circumstances. But there is California case law holding the attorney-client privilege can be waived in some instances in which employer-owned devices are used: E.g., Holmes v. Petrovich Development Co.

        1. Eric

          If you read the article carefully, all Katehi’s team is asking for is an impartial third party to catalog the contents in these devices so that private contents cannot be used out of context by UCOP to incriminate the Chancellor. And they specifically said that they are willing to let a judge to examine the content in court. In other words, they are not insisting on the client-attorney privilege, they are questioning the objectivity of UCOP.

          In this case, the UCOP is using lawyers they hired to carry out an investigation against a employer that their president (Napolitano) accused. In regard to the content of these devices, UCOP is insisting on using their designated vendors to catalog the messages. How impartial is that? I see a huge conflict of interest.

      4. For weeks David was attacked as anti-Katehi.  The pendulum has swung a bit, but I think the word bias here is misused.  There appears to be no animus for or against.  Circumstances are important.

    2. nlgunther

      First, this is  the internal investigation  not the court case . Second, ask the  California State Bar about than you will know.  The complaint against Guzman will in State Bar already if she violate bar rules and law in this matter. This is so simple to understand . Chancellor is represented by an attorney.

       

    1. ryankelly

      You have to read this policy through out and  to understand how this policy works in UC system.

      If Napolitano in her April 27, 2016 suspension letter  served to Chancellor wrote the following statement : You are to immediately return all University property, including but not limited to: ID badge, keys, equipment (computers, books, cell phones, disks/manuals), uniforms and work product (electronic/paper files), etc.  than maybe she would have some  legal ground  for her threats . 

      The above pasted notice are given to terminated employees  upon termination . I received such notice after I spent over one year on investigatory leave and I had a lot information. As TrueBlueDevil pointed in his post the case must be very week against Chancellor if Napolitano screaming for old ipad and old cell phone. What kind Chief of the  Homeland  Security she was ? No wonder that Obama dumped her and she landed in UC.  

       

      1. The property legally belongs to the University.  It doesn’t need a reason to get them from an employee.  They could have asked you to return the equipment at any time.

        1. ryankelly

          If so,  than what Napolitano is waiting for ? Go and get it or fire Chancellor for insubordination . This is a  very simple solution . Is  it not true?

        2. Because if Katehi is fired from her job as chancellor as an at-will employee, she is entitled to a tenured position as a professor, with all of the protections and benefits.  If she is fired for cause or resigns from the University (as Napolitano wanted her to), she has to just leave.  Thus the investigation and the battle that is going on.

           

        3. she is entitled to a tenured position as a professor, with all of the protections and benefits”

          ryankelly

          If it would be true what  you  stated than Chancellor is not employee at will as Napolitano’s  spokeswomen announced than Chancellor  can not to be fire without the cause .  How did you come up  to such conclusion ?  Please share you information you have . This is important information which I missed on this forum .

        4. That is correct.  In terms of being Chancellor, LK is an at-will employee.  In terms of being a faculty member, she is not.  If she were to be fired as Chancellor, she would still be a UCD faculty member.  To fire her as a member of the faculty would require going through the same procedures it would take to fire any other faculty member with tenure.

        5. David

          What is going on ?  According to SacBee Klein stated that Naploitano and regents can fire Kathi any time because she is employee at will?  It is getting very interesting .

          Looks like Napolitano is trying to criminalize the case?  UC  General Counsel and Haag are looking for something they don’t know and they don’t have . It is exactly like in my situation when I was held hostage on investigatory leave over one year because General Counsel Charles Robinson wanted to find out what kind  information I have about UCOP fraud in relation to illegal power sale.

          Chancellor has a lot of information about  the corruption in upper circle . They are dancing scared in Oakland  and Melinda Guzman knows this . She is good and not afraid .

          1. They can fire her as chancellor. But she’s also tenured faculty and they can’t just fire here from that position. That’s what Melinda told me very clearly.

        6. Pugilist, how so?  How would firing her as Chancellor not have served the purpose at hand?  Even if you suppose that LK did things that justified her removal as Chancellor (and I am not going to weigh in on that one way or the other), those things would not necessarily mean that she couldn’t be a productive faculty member.  Why would UCOP need to have her separated from UCD entirely?  I think a lot of people (myself included) find this a bit puzzling.

        7. ryankelly

          Because if Katehi is fired from her job as chancellor as an at-will employee, she is entitled to a tenured position as a professor, with all of the protections and benefits.  If she is fired for cause or resigns from the University (as Napolitano wanted her to), she has to just leave.  Thus the investigation and the battle that is going on.

          What you said is wrong. Napolitano does NOT have the power to fire Chancellor Katehi as a tenured faculty member.  Such a decision has to go through the academic senate and a bunch of other committees. Chancellor Katehi has to commit serious academic dishonesty or illegal crime to be removed from a tenured position. With the academic senate, i.e. the aggregate of the faculty, so overwhelmingly in support of the Chancellor, there is zero possibility that Napolitano will be able to fire the Chancellor from her tenured position.

          The current investigation is on her alleged “wrongdoings” as an administrator and doesn’t relate in anyway her faculty position.

        8. Roberta – obviously not my call, but just going off what Guzman said in the Vanguard, it seems they wanted her out of the university not just out as chancellor which requires them to fire her for cause.   It seems they could have avoided this by just firing her as chancellor and letting her stay as faculty if she wanted.

        9. Pugilist, fair enough.  I wonder if UCOP regrets that decision.  This just seems to get messier and messier.  It isn’t good for anyone.

        10. Napolitano does NOT have the power to fire Chancellor Katehi as a tenured faculty member.  Such a decision has to go through the academic senate and a bunch of other committees.

          Which is why there are administrators who can commit crimes, but still stay on the payroll for months/years after in tenured positions.  The Academic Senate is very slow to respond. http://www.sfchronicle.com/education/article/UC-Berkeley-exec-booted-for-sex-harassment-got-to-8313976.php

          I don’t know why Katehi is not just allowed to remain as a professor, with an actual teaching schedule.  I’m sure she wouldn’t stay long.

      2. ryankelly

        Quite the contrary, the UCD academic senate acted very swiftly to support Chancellor Katehi because they see the positive changes Chancellor Katehi has brought to this campus and the damage of Napolitano’s ruthless actions to UCD.

        There is no accusations whatsoever against Katehi as a tenured faculty member and once again there is zero possibility that Napolitano will ever be able to remove Katehi from her tenured professor position.

        1. I believe that there is zero chance of her returning to the chancellor’s office.  I don’t believe that that is her intention.  I believe that she has little interest in staying with UC Davis at this point.  I believe that she wants to clear her name enough to satisfy future employers and collect a large settlement.  In the meantime, this fight is just wasting a whole lot of money and time.

        2. ryankelly

          It’s very clear from the beginning that Katehi is not going to return as the Chancellor. I don’t think anyone ever debated over that one. Put in her position, anyone with the right mind would not come back.

          Chancellor Katehi has every right to defend herself. If UCOP is found guilty of wrongfully alleging Katehi, then of course Katehi should be entitled a settlement. What Napolitano did to her is enough to ruin her future career and she certainly has the right to claim damage of equivalent compensation for the next 5-10 years at least.

          It is going to be a large settlement. That’s the price you pay for hiring a mafia into the UCOP.

          And you are right. The fight is expensive. And do remember that Katehi is using her own money whereas Napolitano is using UC fund.

        3. I have already told Linda and her family, that should she decide to return, I would help her out and help her clean house of the disaffected in the Chancellor and Provost offices who breached protocol, lines and terminals, and security to try to hang the Chancellor for trumped up charges…

          who fed things to the media, even before the Chancellor saw the documents..  who created a rat’s nest and unworkable conditions for those who actually did their jobs…

          who did not forward my emails to the proper people, but redirected to others….like the Napo, the police chief, and others who turned out to not be in the Chancellor’s corner…

          who gave info to the unions to keep them paying the protestors….and so on…

          Let’s see what happens..    🙂

           

        4. That’s not a good thing in my view – purging UCD of people who are not yes people for Katehi.  That seems to go against academic and intellectual freedom.  I suggest you re-think that approach.

        5. Pugi

          I’m not sure that’s considered “purging”… Just expose the facts and let people decide.

          I’ve never heard of the things Marina referred to, leaking documents, feeding the union, etc. To me they represent important information and it sounds like there are a lot of rule breaking

          If they are true, I think the public deserves to know the details.

        6. the UCD academic senate acted very swiftly to support Chancellor Katehi because they see the positive changes Chancellor Katehi has brought to this campus

          Glad the academic senate could see that.  Some of my friends couldn’t see those positive changes, through the pepper spray burning their eyes.

    2. ryankelly

      I read through the document you provided above. Quite interestingly, I found no language saying the University has absolute right to all the content (i.e. private and public) in these devices. Here are some excerpt that I find relevant. Perhaps there are other policy documents that pertain to this issue that you could share.

      On Privacy:

      The University does not routinely inspect, monitor, or disclose electronic communications without the holder’s consent. Nonetheless, the University may deny access to its electronic communications resources and may inspect, monitor, or disclose electronic communications under certain limited circumstances, subject to the requirements for authorization, notification, and recourse in the UC and UC Davis Electronic Communications Policies.

      On Personal use:

      University users may use electronic communications resources for incidental personal purposes provided that such use does not: (a) directly or indirectly interfere with the University’s operation of electronic communications resources, (b) interfere with the user’s employment or other obligations to the University, (c) burden the University with noticeable incremental costs, or (d) violate the law or University policy.

       

  3. Can’t she just pull a Hillary?

    Delete all of the alleged private email communications, back them up just in case, and then hand over the devices? In addition, if she wanted to pull a Hillary, print out the UC documents and communications – tens of thousands of pages – and then wipe the hard drives and memory. Even better, hire an attorney with an IT background to do this, and she covered by attorney / client privilege.

    Is it just me, or does their case look weak if they have to rely on her iPad to try to nail her?

    1. TrueBlueDevil

      What Chancellor Katehi’s team is proposing to do is to catalog the messages into private and public, and then return the devices to UCOP. It is clear to me that this is done to prevent UCOP to selectively use private messages out of context to incriminate the Chancellor or steer the public perception of the issue. Given UCOP’s track record, I think they are doing the right thing.

      I think Chancellor Katehi’s team has been clear that they would return the devices and they are also willing to let a judge examine the devices and contents in court.

      If they delete messages, then UCOP will have an opportunity to accuse them of destroying evidence. A sane legal counsel would not do that.

      1. Yes, but appears Katehi’s team wants to choose her own “third party” rather than one of the two neutral third parties on UC’s approved list.

        1. hpierce

          Yes. A true third party doesn’t really exist. So I think the best solution is to go to court and let a judge decide, which Katehi’s team seems to be open to.

    2. does their case look weak if they have to rely on her iPad to try to nail her? “

      Not if that is where she chooses to keep all of the communications that she does not want them to see.

      1. Ms. Tia

        Why  Diane Klein brraging about firing Chancellor and about  Napolitano’s and regents rights to let her go and they fighting with Chancellor .?

        Just let Chancellor go an get over with .  Don’t spent money on the  two very expensive lawyers Melinda Haag and McGregor Scott and their associates to fire Chancellor if you already know and stated that Chancellor  committed crime which justified the action against her. Pointless . psychological warfare , terror and power play . This is a real face of  the UCOP ruthless and corrupted regime .

         

  4. TrueBlueDevil

    “Is it just me, or does their case look weak if they have to rely on her iPad to try to nail her?”

    Perfect observation. I like it

  5. Guzeman’s press release should state:  “Our client, Linda Katehi, is so stupid that she used a publicly-owned work computer to communicate with her attorney.”

    1. AM

      Per UC’s electronic communication policy below. Before you start calling others stupid, perhaps you could do your homework before others call you the same.

      University users may use electronic communications resources for incidental personal purposes provided that such use does not: (a) directly or indirectly interfere with the University’s operation of electronic communications resources, (b) interfere with the user’s employment or other obligations to the University, (c) burden the University with noticeable incremental costs, or (d) violate the law or University policy.

      1. David

        People don’t understand or they don’t like to see that universities even the  private universes flowing the rules of liberty in communication and free speech . Universities are  self govern entities . Even in Communist Poland where  I lived , the  universities , students and faculties enjoyed a lot of freedom in comparison to regular folks .  Universities in Poland did not have armed police forces in campuses at all.  UC system is so big  with many faculty members an and students from other countries. The  invigilation of campuses communities would place USA in same place as North Korea is.

        1. People called for militarization of campus police after mass shootings. The same group of people then criticized the militarization of campus police after the kids are pepper sprayed. This is what happens in a democracy. People react to what they see now and here. Never are able to think long term.

      2. Katehi should just hire Brian Pagliano to wipe her devices clean (you want a pro doing it in case there is a text in there that says some thing like “Go ahead and blast them Officer Pike”).

        1. South of Davis

          Pike got assurance from Steven Drown that he will get promotion for “Go ahead and blast them ”  She walking around and spraying like a primadonna up front of  the  hundreds  of video phone cameras . Unforgettable image . Protesters got $30k per head , ACLU lawyers got fat and university lost 2 mills and got Lt. Pike Mascot forever .

           

          1. ACLU Lawyers didn’t get fat. There was a settlement where the attorneys got modest fees split a number of ways, but ACLU lawyers are salaried not hourly or on a contingency, so they didn’t get anything out of it.

  6. “David Greenwald
    June 22, 2016 at 12:24 pm
    They can fire her as chancellor. But she’s also tenured faculty and they can’t just fire here from that position. That’s what Melinda told me very clearly.”
    David
    If it is true what Melinda Guzman is saying and I believe that it is true than basically UCOP has no case. Chancellor was basically was accused by Napolitano of white collar crime.  I don’t  see how possibly  Chancellor could  work as professor for  the university. She and her family  was already defaced and defamed by Napolitano.  Do you imagine yourself to work for university being labeled as white collar criminal .  I see this possible only if Napolitano would be fired by regents and blamed for creation of such mess. No other way.   What is your honest  opinion about ?

    1. Jerry,  we can hope that the Regents will do the correct thing and fire the Napo….She is not tenured faculty…..the Napo is truly at will

      PS>   Some of my posts over the months at UCD and since I found the DV at the end of April explain much of this highly technical stuff, which the peanut gallery still doesn’t get and keeps asking about on a near daily basis….

      And, my new friend David Smith:
      The UCOP is trying to change policy as fast as we post about it…  LOL…..trying to cover up the NSA like tactics that the Napo has pushed onto the UC>>..

      1. Marina

        Maybe Chancellor is the lure to end the  Napolitano’s  Senedero Luminoso carrier in the University of California.  We will see

    2. Jerry

      Chancellor was basically was accused by Napolitano of white collar crime.”

      I am not seeing where anyone has accused the Chancellor of a “white collar crime”. I certainly ma