So did Urban Meyer delete important texts or not?

The Urban Meyer/Zach Smith story continued in late August with the release of documents from Ohio State, shortly before Meyer’s since-concluded partial suspension began.

The release didn’t include any text messages to or from Meyer that dated back to the time period surrounding the 2015 incident at the heart of the scandal.

According to the Ohio State Summary of Findings, that could be because Meyer’s first response to Brett McMurphy’s original story was to inquire as to how to delete text messages (emphasis added).

(i) On August 1, 2018, a widely shared news report claimed that Urban and Shelley Meyer had been aware of Courtney’s Smith’s allegations of abuse in 2015 and of law enforcement’s investigation. The reported information included two incident reports from the Powell PD, as well as text messages between Courtney Smith and Shelley Meyer.

(ii) Upon seeing this report when it first came out (at about 10:17 a.m.), Brian Voltolini, who was on the practice field with Coach Meyer went to speak with him, commenting that this was “a bad article.” The two discussed at that time whether the media could get access to Coach Meyer’s phone, and specifically discussed how to adjust the settings on Meyer’s phone so that text messages older than one year would be deleted.

(iii) Our review of Coach Meyer’s phone revealed no messages older than one year, indicating that at the time it was obtained by OSU on August 2nd, Coach Meyer’s phone was set to retain text messages only for that period, as Coach Meyer and Brian Voltolini discussed. We cannot determine, however, whether Coach Meyer’s phone was set to retain messages only for one year in response to the August 1st media report or at some earlier time. It is nonetheless concerning that his first reaction to a negative media piece exposing his knowledge of the 2015-2016 law enforcement investigation was to worry about the media getting access to information.

To a lay person, this implies a guilty conscience. If Meyer’s first impulse was to delete text messages, it does not take a law degree to infer he might’ve had something to hide.

The term comes from the Latin phrase “contra spoliatorem omnia praesumuntur,” or “all things presumed against the destroyer.”

In litigation, parties are required to preserve evidence as soon as they become aware of potential legal claims. Typically, a court will tell a jury that, if a party has been shown to have intentionally destroyed evidence, the jury can infer that what was destroyed might’ve been damaging.

While legal opinions regarding spoliation have proliferated, the most potent might come from a 1940 Fifth Circuit Court of Appeals decision, which described it as “synonymous with pillaging, plundering, and robbing.”

Moreover, Ohio recognizes a separate cause of action for spoliation of evidence. In other words, it’s not just that a judge can give a jury an instruction on what it can infer. A party can bring a separate legal action against another that has met the five-part test for spoliation.

As of the morning of Aug. 1, when the McMurphy story broke, all Meyer likely knew was that Courtney Smith was alleging that Ohio State assistant Zach Smith abused her and that she believed Meyer knew about it. At the time, that knowledge was probably insufficient to lead to the conclusion that Courtney Smith would likely sue Meyer or Ohio State.

Additionally, the Summary of Findings sets forth that the investigators could not determine whether Meyer and director of football operations Voltolini deleted texts on that day or Meyer wasn’t aware his phone was already set to delete year-old messages.

On the one hand, one cannot credibly accuse Ohio State itself of a cover-up. The report is reasonably detailed and contained this admission about Meyer, which was not first reported in the media. If Ohio State had wanted to bury evidence of wrongdoing, the school never would have had a reputable law firm conduct an investigation (involving a former Ohio House Speaker and former Chair of the Securities and Exchange Commission) that led to such a revelation.

On the other, did the independent investigators want to reach the strongest conclusions? The report does not say whether the investigators asked Meyer or Voltolini whether they actually deleted messages.

There are a few possibilities:

The Wall Street Journal later reported the investigators didn’t have forensics experts study the phone, which raises questions as to whether the report is as thorough as it needed to be. Perhaps the two-week deadline was too short to answer key questions?

In his Week 4 presser following his return from a partial suspension, Meyer said “an IT person” had changed the settings of his phone in the spring to keep only text messages from the last year:

My recollection of that is that there’s an article out, something about the press gaining access to your phone. And I said, “I don’t worry about my phone. There’s nothing to hide on my phone.” And that was it.

So either Meyer is taking a different position that he did when he was interviewed, or someone else offered testimony to investigators that is contrary to his current position.

Meyer’s full-time predecessor at Ohio State lost his job for concealing evidence. Meyer said his primary reason for firing Smith was because Smith did not disclose legal proceedings. In light of that, Meyer’s alleged impulse to destroy evidence is important. He occupies a position of significant authority, one in which destroying evidence could carry substantial repercussions.

Maybe he did not want to provide anything of value to the national media, which he could assume would be asking new questions. Maybe he was concerned the messages would embarrass Zach Smith. Maybe there was something unrelated to the Smith story he did not want to expose. Maybe he simply wanted to keep family communications private. Maybe his Sept. 17 “nothing to hide” explanation is accurate, and maybe Ohio State’s Summary of Findings is inaccurate.

There’s a host of possible explanations, some benign and others not.