September 16, 2012

Cornell Records at Crux of Debate in SAE Civil Suit

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Evidence about Sigma Alpha Epsilon must be pried from Cornell’s vaults to help prove that the fraternity’s “deadly” culture of hazing led to the death of her son, the mother of George Desdunes ’13 said in court papers submitted by her lawyer this week.

A pending subpoena would put before the court all existing Office of Fraternity and Sorority Affairs records related to SAE hazing violations from the last several years, all recent police and medical calls related to the fraternity and all “photographs or videotapes of any SAE fraternity event or initiation” owned by Cornell. The subpoena would also require Cornell to hand over all disciplinary records against SAE and any correspondence between the University and the fraternity about hazing.

Marie Lourdes Andre, Desdunes’ mother, is suing the national SAE fraternity and at least 15 former brothers, seeking at least $25 million in damages. Her son died on Feb. 25, 2011, after a fraternity hazing ritual that Andre says exemplifies a broader culture of recklessness at SAE.

Although Andre says that Cornell’s records could provide proof of a hazardous environment at SAE, they may not see the light of day. Asking Judge Karen Rothenberg to “quash” the subpoena, the defendants in the case have insisted that the requested documents are immaterial to the case and cannot be released under the Family Educational Rights and Privacy Act, a federal law that protects students’ educational records.

“[Andre’s] counsel entirely ignores the limitations to be placed on the subpoena under [FERPA],” Dara Rosenbaum, the lawyer of a former SAE member, stated in court documents filed this summer. The “disclosure … would constitute a violation of [the defendant’s] rights and must be prevented.”

William Friedlander, Andre’s lawyer, disagrees.

“Contrary to the portrait painted in defendant’s motion, the subpoena does not seek unqualified access to individual students’ educational records, but only information relevant to the conditions and circumstances surrounding and leading to George’s death,” Friedlander said in recently submitted court documents.

The disagreement over the disclosure of Cornell’s records has emerged as a key source of contention in the civil lawsuit. Three former SAE pledges were acquitted in a separate, criminal trial in June.

Familiar by now to close observers of the litigation over Desdunes’ death is the disagreement over what happened on that February night more than a year ago.

Andre holds that the death of her son was the “direct and proximate result of the defendants’ negligence.” She emphasizes that Desdunes was forced to consume vodka and pixie stix after he was blindfolded and bound with zip ties.

The defendants, meanwhile, have maintained that Desdunes was an eager participant in the binge drinking that preceded his death, adding that he had been seen drinking prior to the hazing ritual. They hold that Judge Judith Rossiter J.D. ’86, who oversaw the criminal case, put to rest the claim that the pledges were responsible for Desdunes’ death.

“The court determined, without reservation or equivocation, that these young men are innocent. They did not haze George Desdunes or cause his death,” Ray Schlather J.D. ’76, the attorney for defendant Max Haskin ’14, told The Sun in June.

But the fight over the Cornell records marks a new battleground not addressed in the criminal trial: How systemic was hazing at SAE? How much did the national SAE chapter know about prior alleged transgressions? And did the leadership of the SAE chapter have reason to believe, prior to Desdunes’ death, that the chapter’s members could be at risk?

In making their cases over the confidential Cornell documents, both sides show much of how they plan to construct their arguments responding to these questions.

Noting that several clauses in the subpoena limit its scope to records relevant to “the cause and circumstances of the death of George Desdunes,” Andre’s lawyer says the request is of direct relevance to the case.

“Contrary to [the] defendant’s … motion, the subpoena is not a ‘fishing expedition.’ Indeed, the specific request to which [the defendant] applies such an inappropriate phrase is the correspondence between Cornell and SAE, a defendant in this action, concerning allegations of hazing,” Friedlander says in his motion to advance the subpoena. “This request seeks information that is directly related to defendant SAE’s knowledge of the extreme and dangerous — in fact, deadly — hazing” that SAE members were involved in.

Friedlander’s argument appears to be buttressed by a letter sent from the University to one of the defendant’s lawyers in June, outlining why it plans on honoring Andre’s request.

“Cornell, as custodian, is obligated to comply with a lawfully issued subpoena … and I am aware of no defects in this subpoena,” the letter, by Associate University Counsel Valerie Dorn, states.

Still, Dorn adds that, in response to the defendants’ concerns, Cornell will “thoroughly review the records and redact privileged, confidential, nonresponsive information.”

But Dorn’s guarantee is not enough to ensure that the reputations of the defendants will not be indelibly scarred by Cornell’s records, their lawyers say. Their argument fits a consistent narrative put forth by the lawyers for the pledges and former SAE brothers since Andre’s lawsuit was announced: that the brothers have been wrongly scapegoated — by both the media and the plaintiff’s lawyer — for a death they did not cause.

The subpoena would lead to “Cornell University’s production of irrelevant, personal information about [the defendant that] would cause undue embarrassment, undue hardship and undue prejudice,” Rosenbaum says in one of her filed statements.

While the contents of the documents remain to be seen, they could provide a trove of new information regarding the practices of SAE.

The subpoena also requests that Cornell hand over all “training or instructional materials provided or made available to SAE …. concerning hazing, risk-management, student initiation requirements, fraternity house safety and the provision, use or misuse of alcohol,” as well as all “notes of meetings attended by University personnel and any representative of SAE concerning hazing.”

And not all the requested documents are about SAE’s past.

A separate part of the subpoena, for example, asks for all “photographs or videotapes or the like showing Desdunes, any member of SAE or any pledge of SAE entering or leaving Cornell University Campus Townhouse Apartment B3 or the Sigma Alpha Epsilon chapter house between 1 a.m. and 7 a.m. … including those recorded from security cameras.”

Original Author: Jeff Stein