Judge allows Davis' protective order for phone records
Posted August 9, 2012
Chapel Hill, N.C. — Superior Court Judge Howard Manning ruled Thursday to allow a protective order that would prevent the release of phone records from former UNC head football coach Butch Davis' personal cell phone.
In a decision following a July 17 hearing, Manning granted Davis’ motion to quash the subpoena for the release of his 216-area code personal cell phone records that were being sought by a group of media outlets, including WRAL News, stemming from an NCAA investigation into the football program when he was the coach.
Manning also denied the motion to compel filed by the media outlets and allowed a protective order filed by Davis given certain conditions.
Under the terms of the order, Manning decided that Davis’ records should be made available for review by the attorneys for both sides, noting that “is reasonable and certainly cost-effective considering the gallons of white-out used by UNC and its lawyers.” Attorneys will seek calls pertaining to university business.
Manning did not specify in his two memos released Thursday, totaling 12 pages, whether the business-related records reviewed by the lawyers will be made public. There was also no timetable set for the review.
The decision states that all private calling records for non-job related calls will be protected.
"Coach Davis is delighted with this result," said Jon Sasser, Davis' attorney. "The Court clearly gave the matter serious thought, and we are appreciative of Judge Manning’s deliberations and decision."
After more than a year of investigation and allegations of both football and academic improprieties within the program, Davis was fired by the university in August 2011. During his time as coach, Davis was issued a university phone but previously released records show that he did not use it, opting instead to use his personal phone.
Manning also issued a warning to the University of North Carolina administrators saying that he does not believe that personal cell phone usage should be used as a means of skirting public records laws.
“If Chancellors of the UNC system are doing this thinking that they can avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business, they need to re-think their decision,” Manning wrote.
The July 17 hearing also addressed the issue of media seeking records of all communication between UNC and their outside legal counsel during the investigation. Manning ruled on that matter that UNC is, in fact, covered by attorney-client privilege.
The court did agree with the media on the release of information related to student-athletes’ violations related to impermissible benefits. He wrote, ”This kind of misbehavior has nothing to do with education (and) does not relate to the classroom.”
UNC had sought to withhold all student-athlete information under terms of the Family Educational Rights and Privacy Act which preserves the privacy of educational records.
In a statement released Thursday evening, UNC Chancellor Holden Thorp said the university agreed with Manning's decision.
"We are pleased that his decision affirms the privacy of student-athlete information related to academics and protects the important relationship between the university and its counsel."
UNC will be forced to produce an original statement of facts on any football player tied to the NCAA investigation who was ruled ineligible based on receiving impermissible benefits. No records will be turned over for any student-athlete benefit that was not explicitly labeled a violation by the NCAA.
“The cloak of security must be lifted and the sun let in for all to see,” Manning stated.