Former UNC coach Davis contests subpoena

Former UNC football coach wants court to quash subpoena asking for his personal cellphone records.

ktysiac@charlotteobserver.comOctober 19, 2011 

A lawyer for former University of North Carolina football coach Butch Davis has filed papers in Orange County Court requesting that a subpoena for Davis' cellphone records be quashed.

A media coalition led by The News & Observer and The Charlotte Observer subpoenaed records of calls from Davis' "personal" cellphone because Davis used it to make business calls while employed by UNC.

Davis' lawyer, Jon Sasser of Ellis & Winters LLP, wants a judge to quash the subpoena and enter a protective order, calling the subpoena "unduly burdensome, unreasonable and oppressive."

Sasser argues that the subpoena seeks production of information that is no longer relevant in the case and that the phone records sought do not constitute a public record.

In May, Wake County Judge Howard Manning Jr. granted the media coalition's request for UNC to turn over phone records of Davis, former associate head coach John Blake and athletics director Dick Baddour.

The media coalition later subpoenaed Davis' "personal" cellphone records. Communications conducted on behalf of a public entity on personal phones are not exempt from public review under the North Carolina public records law.

In an affidavit, Davis said the media's handling of previous records requests has caused "an extreme amount of suffering and embarrassment" for him.

He objected to his home address - albeit his former address - appearing in court papers that were posted online by media outlets.

He also said that in June of 2011, after UNC "produced certain records," someone revealed his cellphone number to "unscrupulous individuals." He said the same thing happened to the cellphone numbers of his teenage son and wife.

Davis said his family received unsolicited calls from media outlets and "crank calls" from fans of other college football programs. According to his affidavit, Davis and his family were forced to change their contact information.

"As a former NFL head coach, and head coach of two college teams, I am well aware of the intense scrutiny directed at my profession," Davis said in the affidavit. "However, as a private citizen, I also believe that I have a right to protect my own privacy as well as a duty to protect the privacy of my family, friends and business associates."

Before he was fired in July, Davis had said he would produce records of his business calls with personal calls redacted for the media. He has not released those records.

In his affidavit, Davis offered to have Manning or another person he designates review Davis' unredacted records if Manning won't quash the subpoena.

"I would also be happy to meet privately with the court or its designee to answer any questions that the court may have about the records, or any particular phone number, in order to address this request," Davis said. "Again, I have nothing to hide, other than the protection of my privacy as well as the privacy of others."

The media have been seeking records of Davis' calls as a result of the NCAA's investigation of UNC's football program. The probe of academic fraud and impermissible benefits resulted in 14 players missing at least one game and seven players missing the entire season in 2010.

UNC was cited with nine major violations by the NCAA and has self-imposed sanctions including two years of probation, the vacating of 16 wins from the 2008 and 2009 seasons, and the cutting of three football scholarships for the next three seasons.

ktysiac@charlotteobserver.com or 919-829-8942

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