A federal appeals court ruled Monday that LSU, aided by attorneys from the Taylor Porter law firm, did not criminally conceal public records more than a decade ago when they agreed to keep the public from seeing a student’s sexual harassment complaint against former football coach Les Miles.
The question of whether LSU, following advice from Taylor Porter attorneys Vicki Crochet and Bob Barton, committed the crime of injuring public records came up last year in a federal lawsuit from former LSU Athletics administrator Sharon Lewis. Lewis’ suit, filed in 2021, accused university officials of retaliating against her for trying to report complaints against Miles.
A U.S. District Court jury ruled against Lewis late last year and dismissed all of her claims against LSU.
Sharon Lewis listens as her lead attorney Larry English speaks after a jury dismissed Lewis’ case against LSU, Wednesday, December 20, 2023, at the Russell B. Long Federal Building and United States Courthouse in Baton Rouge, La.
But an earlier ruling in Lewis' favor by U.S. District Judge Susie Morgan during the discovery phase of the trial raised serious questions about LSU and Taylor Porter's actions.
Morgan found that Lewis made an independent prima facie — or “at first look” — case that the LSU board broke the state’s law on second-degree injuring of public records. The statute requires that public records must be preserved in public offices, and says that their intentional removal, destruction and concealment can rise to the level of criminal misconduct.
Morgan cited an LSU document from May 15, 2013, that explained the rationale for storing the Miles investigation off-site at Taylor Porter’s offices, rather than at LSU.
She wrote that the memo was “sufficient for the Court to find a purpose of the Board in communicating with Taylor Porter on May 15, 2013, was to further a crime; namely, concealment of a public record to prevent public disclosure of its contents.”
Barton and Crochet — who had been dismissed as defendants in Lewis’ suit — appealed Morgan’s ruling on the public records issue.
A three-judge panel from the U.S. Fifth Circuit Court of Appeals agreed unanimously with them, saying in a June 17 ruling that Morgan had erred.
The Fifth Circuit judges found that unredacted copies of the student’s complaint against Miles, a related memo and supporting documents “were not public records at the time of the alleged concealment,” citing exemptions in state public records law for attorney-client communications.
They also reference the student who complained about Miles, who repeatedly said she would not consent to the disclosure of the unredacted report. The judges found that the documents could be exempted from state public records law based on the student's constitutional right to privacy.
“Although the Public Records Act’s exceptions are to be construed narrowly to ensure the public right of access, there is minimal evidence supporting the district court’s conclusion that the Board and Appellants actually concealed the documents,” wrote U.S. Fifth Circuit Judge Carl E. Stewart.
Fifth Circuit Judges Stuart Kyle Duncan and Kurt Engelhardt sat on the panel as well. Stewart is an appointee of former President Bill Clinton, while both Duncan and Engelhardt were appointed by former President Donald Trump.
“The Fifth Circuit recognized that Taylor Porter’s attorneys honored their obligations to their client (LSU) to protect the attorney-client privilege and maintain the confidentiality of their investigation and report," said attorney Brandon Black of Jones Walker, who represents the Taylor Porter attorneys.
"In addition, the Fifth Circuit recognized that the Taylor Porter attorneys upheld their obligation to the student to protect her privacy rights both under the Louisiana State Constitution and FERPA," Black said. "We are obviously pleased but not surprised that the Fifth Circuit has made it clear that LSU, represented by the Taylor Porter attorneys at the time, did not conceal any public records. We very much appreciate the time and consideration the Fifth Circuit paid to this important case.”
The judges also cited testimony from former LSU athletic director Joe Alleva, who said in a deposition he believed LSU stored the Miles investigation records at Taylor Porter to “protect the name of the young lady and to stop it from becoming public information.”
The judges said Morgan had given undue weight to an abbreviated version of Alleva’s testimony, where she cited it as saying the board wished to “stop [the Taylor Porter investigation] from becoming public information.”
“Beyond this strained interpretation of the deposition testimony, Lewis presented no evidence that the Board sought to fraudulently conceal public records through the attorney-client relationship,” the Fifth Circuit panel found.
Lewis has filed appeals of the verdict in her case and has requested a new trial. A spokesperson for Lewis' legal team said Tuesday that they are reviewing the panel's decision to determine their next steps, and that the ruling "in no way affects any pending litigation in state or federal courts."
A state district judge has also ordered Lewis and her attorney to pay $200,000 in sanctions to Miles, finding her legal allegations against him had no merit. Lewis has appealed that ruling as well.
Miles, meanwhile, filed suit against LSU this week in a different matter, alleging that the decision to vacate 37 of his team’s wins from 2012 to 2015 amid an NCAA investigation could potentially disqualify him from selection for the College Football Hall of Fame.
Editor's note: This story was updated after its original publication to clarify the language in the U.S. Fifth Circuit Court of Appeals' ruling.
