San Francisco Examiner, May 30, 2016
By Michael Barba
A judge has ordered California State University attorneys to release some of the thousands of emails sent between school officials about the closure of the Science Building at San Francisco State University in 2014.
The emails could shine a light on further reasons behind the building shutdown and termination of Aaron Nevatt, the SFSU employee who was fired after discovering contamination in the building in 2013.
The attorneys have refused to hand over the emails amid a lawsuit filed by Nevatt, alleging he was fired in retaliation for revealing “unsafe levels” of airborne mercury, lead and asbestos in the basement of the Science Building.
On Friday, San Francisco Superior Court Judge Harold Kahn ruled in part against the attorneys for the public institution and compelled them to disclose within 40 days all documents involving Nevatt that were related to the decision to shut down the Science Building.
SFSU officials closed and remediated the building in response to the discovery, costing the university almost $3.6 million. Attorneys for the university claim Nevatt was fired for his poor job performance.
Brendan Brownfield, who has argued for CSU that the emails are privileged information because an attorney was copied on each communication, now has the option to fight the judge’s decision in appeals court.
“It’s so important for clients and their counsel to discuss [material with] potential legal consequence [in private],” Brownfield said in court. “I’m trying to protect everything.”
“The content of the communications has not ever been disclosed,” he added.
External consultants who reviewed the Science Building, which was regularly used by employees and students, have yielded conflicting reports on the extent of the contamination in the building.
The emails could reveal more details than what has already been said in public.
Bryan Schwartz, who is representing Nevatt, said in court it was “deeply offensive” that the university would withhold the emails.
“They’re attempting to shield the vast scope of their operations simply by copying their attorney,” Schwartz said. “What’s amazing is that they acknowledge their practice.”
Kahn, in justifying his ruling, said he was “astonished” that Brownfield allowed the disclosure of information from a meeting about the building contamination on Jan. 10 between Nevatt, SFSU officials and an environmental consultant — where an attorney was present — while arguing the emails are privileged.
“The privilege either exists or it doesn’t,” Kahn said. “You either shut down the party who is violating the attorney client communications, or anybody can talk about them.”
At the same time, Kahn decided not to demand the immediate release of the documents as Schwartz requested.
The university previously provided a heavily redacted list of the documents allegedly protected by attorney-client privilege, summarizing the contents of the emails as related to the actual or potential closure of the Science Building, according to court records.
“The general counsel for the university has submitted a declaration which said she was acting in the role of the lawyer with regard to these communications,” Kahn said, noting that he accepts that. “However, I’m not ending the inquiry there.”
Kahn also ordered the university to within 40 days add more details to the list identifying who the emails were sent to as well as a summary of their contents, so that he can decide whether they are privileged.