Judge rules in favor of Texas in suit

A judge has ruled in favor of the University of Texas in a lawsuit filed by ESPN against the university in December 2010.

The lawsuit stemmed from a June 22, 2010, public records request ESPN sent to the university asking for records of correspondence -- including emails and other documents -- relating to conference realignment. Texas denied portions of the request, which ultimately led to the lawsuit about whether the records were public. The argument centered on William Powers' dual role as Texas president and chairman of the Big 12, as well as whether a withheld document was more financial than legal in nature.

ESPN filed the public records request days after Nebraska and Colorado had decided to leave the Big 12 for the Big Ten and Pac-10.

In its initial response to ESPN's public records request, the university withheld several documents citing two reasons: That much of the correspondence -- even though it was sent using university email -- involved Powers only in his capacity as then-chairman of the Big 12's board of directors. Other documents, Texas said, were subject to attorney-client privilege and exempt from the Texas Public Information Act.

In one of its filings, ESPN's attorney stated, "... while Powers wears two hats, UT System gets to decide which hat he has on, depending on which documents are at issue. ESPN's position is that it is not the hat, it is the man."

In January 2011, the university released emails and other documents it had been withholding based on its argument that Powers sent them in his capacity as Big 12 chairman. But it did not release three documents it argued were subject to attorney-client privilege, including one document dated June 8, 2010, that was described as a memo concerning "financial implications of a potential conference realignment."

ESPN's attorney Joseph Larsen argued that if the university claimed that Powers "wears two hats" then he would have received the analysis memo in his role as university president and as chairman of the Big 12, which is a position outside the university and beyond the scope of attorney-client privilege, which protects correspondence between attorneys and Texas officials.

Larsen stated that even if Powers didn't share the actual memo with his Big 12 colleagues, that its contents certainly guided his discussions and decision making on the board. ESPN also asserted that even though university attorneys were included in the discussion, the document at issue was a financial analysis and not prepared for legal strategy.

University attorney James Cousar disagreed, stating that it was clear in the correspondence that Powers received the analysis in his position as president of the University of Texas. He also stated that the lawyer who wrote one of the documents specifically warned against showing it to officials at another university. A university attorney stated in an affidavit that the memo was not shared outside the Texas system, and Powers stated the same in a deposition he gave in February.

On Tuesday in Austin, Texas, Travis County District Court Judge Stephen Yelenosky -- who viewed a copy of the memo in question -- ruled in favor of the university's motion for summary judgment, essentially ending the lawsuit and allowing the financial analysis of the university's decision on conference realignment to remain secret.