Ohio State Football Probe Didn’t Attempt to Recover Deleted Texts

By Anonymous

The day Ohio State football coach Urban Meyer was placed on administrative leave over his handling of abuse allegations against a longtime assistant, he discussed with a colleague how to delete old text messages from his university mobile phone, outside investigators hired by the university said in a report released last month.

Yet the legal team investigating Mr. Meyer’s conduct, led by former Securities and Exchange Commission chairwoman Mary Jo White, decided not to send Mr. Meyer’s phone to a forensics lab to determine if he actually destroyed evidence, according to two people familiar with the matter.

These people said that investigators also did not seek to extract deleted text messages from the phone of Ohio State athletic director Gene Smith, who handed over a device that contained no texts. The AD’s explanation was that he routinely deletes all texts after sending or receiving them, these people said. Such a practice may violate both Ohio open records law and the school’s records-retention policy, experts say.

Still, the investigators concluded they had seen enough evidence to satisfy the scope of their mandate from Ohio State, according to the two people familiar with the matter.

Mr. Meyer, who has denied deleting text messages, is set to return to the Ohio State sideline on Saturday after a three-game suspension. Gene Smith returned from a 17-day suspension on Monday. After receiving Ms. White’s report, Ohio State cited both men for failing to “take sufficient management action” related to the alleged misconduct of former wide receivers coach Zach Smith, who has denied his ex-wife’s accusations of domestic violence.

Ohio State Football Probe Didn’t Attempt to Recover Deleted Texts

Former Securities and Exchange Commission chairwoman Mary Jo White led an investigation. Photo: Zach Gibson/Getty Images

Mr. Meyer in July fired Zach Smith after his ex-wife was granted a protective order against him. Mr. Meyer later said that he went too far in “helping a troubled employee.” Gene Smith said last month he had “huge regret for my inability to be the particular leader that I should have been in this situation.” The report faulted both men for not reporting a 2015 allegation against Zach Smith to university officials.

When facing trouble, institutions like Ohio State frequently hire law firms such as Debevoise & Plimpton LLP, where Ms. White is a partner, to conduct investigations of alleged wrongdoing.

But as the Ohio State investigation shows, such probes do not always result in an exhaustive review. Answers to some of the questions the report was intended to explore—among them whether Mr. Meyer or Gene Smith broke any laws, rules or contractual obligations—may have been limited by investigators’ decision not to pursue more evidence from the men’s mobile devices.

Ohio State Football Probe

  • Aug. 1: Ohio State announces an investigation into allegations that head football coach Urban Meyer was aware of 2015 domestic-violence allegations against assistant football coach Zach Smith but did not act on them. OSU places Meyer, who had fired Smith days earlier, on administrative leave.
  • Aug. 2: Ohio State board of trustees forms a working group to direct the work of an investigative team into the allegations about Meyer’s knowledge of and actions in the Zach Smith matter.
  • Aug. 5: Ohio State announces it’s retained Mary Jo White, former chairwoman of the Securities and Exchange Commission and a former U.S. Attorney for the Southern District of New York, of the New York law firm Debevoise & Plimpton to lead its investigative team. School says the investigation is expected to be completed within 14 days.
  • Aug. 20: Investigative team shares its findings with the OSU board to prepare board members to discuss the matter at their meeting two days later.
  • Aug. 22: After a nearly 12-hour board meeting, OSU releases a 2 1/2-page summary on the matter. Meyer is suspended through Sept. 2 and for the Buckeyes’ first three games, and will forfeit six weeks of compensation. Athletic director Gene Smith is suspended without pay from Aug. 31-Sept. 16. OSU holds a news conference. After that, a 23-page document of findings from the investigation is released to the public.

A Debevoise spokesman said investigators consulted with a forensics lab, “which estimated a multi-day project and an uncertain outcome,” and declined to use the lab. He said the investigation “was thorough and Debevoise stands behind its findings.”

Gene Smith declined to comment through a university spokesman. His attorney did not respond to requests for comment. Ohio State released a statement that did not address questions about Mr. Smith, saying that the university, its board of trustees and the working group that oversaw the investigation all stand behind it.

“A highly qualified and independent investigative team conducted a thorough and detailed investigation,” the statement read.

On Aug. 20, the day Ms. White briefed the full university board on her findings, one board member raised the issue of what more could be done to retrieve relevant texts, according to another person familiar with the matter. But the investigation wasn’t reopened. Mr. Meyer and Gene Smith were suspended two days later.

Experts in similar investigations say it has become standard operating procedure to use third-party mobile forensics labs to attempt to retrieve deleted texts.

“It’s just essential,” said Louis Freeh, the former FBI director hired by Penn State in 2011 to investigate the school’s role in the sexual abuse scandal involving former assistant football coach Jerry Sandusky. Speaking generally about the use of forensics labs in these types of investigations, Mr. Freeh said, “You can’t really do a thorough, credible job without doing that.”

The Debevoise spokesman said investigators “determined they already had strong, indisputable evidence” on the core issue they were asked to probe—whether Mr. Meyer and Gene Smith knew of a 2015 police investigation into domestic violence allegations against Zach Smith.

Ms. White’s report, issued last month, makes it clear that Mr. Meyer, on the eve of the investigation, considered deleting old texts. It states that on Aug. 1, Mr. Meyer stood on a practice field with Ohio State director of football operations Brian Voltolini and “specifically discussed how to adjust the settings on Meyer’s phone so that text messages older than one year would be deleted.” The phone was turned over to university officials the next day and investigators found no messages older than a year on it.

At a press conference on Monday, Mr. Meyer said an “IT guy” changed the setting on his phone to delete texts older than one year a few months prior to the investigation. Forensic experts said it would have been easy for investigators to find out for sure.

Black Swan, a Memphis-based digital forensics lab run by a former Alabama homeland security director, says it can extract that kind of information from mobile phones in less than 24 hours for around $2,000. “You can definitely tell when the settings were changed,” said Scott Vowell, a Black Swan forensic engineer.

Ohio State Football Probe Didn’t Attempt to Recover Deleted Texts

Ohio State coach Urban Meyer addresses the media during a news conference on Sept. 17. Photo: Jason Mowry/Icon SMI/Zuma Press

The Ohio State investigation was overseen by a working group led by Jo Ann Davidson, a former university trustee who is vice chair of the state gaming control board. It was completed in about two weeks—far less time than many management probes have taken—which enabled Mr. Meyer to serve his suspension before the heart of the Buckeyes’ conference schedule. The team is 3-0 and ranked No. 4 in the country heading into Saturday’s game against Tulane.

Jack Greiner, a Cincinnati-based lawyer who specializes in media law, says Ohio State’s records-retention policy requires saving correspondence that isn’t transitory—not including, for instance, a text message saying you’ll be home late—for at least one year.

“A blanket practice of deleting texts violates the records-retention policy on its face, which therefore constitutes a violation of the [state] statute,” Mr. Greiner said.

Ms. White’s 23-page report, which was released to the public late at night on Aug. 22, makes no mention of Gene Smith deleting text messages.

The sports and corporate worlds have become beset by allegations of abuse and sexual harassment, and investigations of alleged employee misconduct and companies’ reaction to it have become big business for law firms.

Ms. White, formerly the U.S. Attorney for the Southern District of New York, has led many such probes. She was hired last month by CBS Corp. to investigate similar complaints against CBS CEO Les Moonves. Ms. White also has worked for the NFL in several high-profile cases.

She brings a reputation coveted by clients who stress the independence of such investigations to enhance their credibility with the public. But other investigators say this area of legal work brings an inherent conflict of interest.

“Any time that you have an internal investigation, the university wants to frame it as an independent investigation,” said Tim Nevius, an attorney and former NCAA investigator. “But the fact is, the people who are paying the bills are the ones who are under investigation.”

Debevoise & Plimpton was authorized to charge Ohio State up to $500,000, though the total is being adjusted. Debevoise charged the University of Rochester $4.5 million for a sexual harassment probe earlier this year that drew criticism for being unduly favorable to the school. Some of Ms. White’s other probes have been similarly criticized.

Rochester spokeswoman Sara Miller said Debevoise’s report gave the school “valuable recommendations for us to clarify and revise some of our sexual misconduct policies and practices.”

The Debevoise spokesman said, “The fact that Ms. White has been the go-to person in so many of these cases is precisely because of her integrity and independence; it is not surprising that there are both people and institutions who sometimes do not like her findings.”

Corrections & Amplifications

An earlier version of this story stated that the investigators’ report said Urban Meyer asked a colleague how to delete old text messages. The report said the two discussed how to do so.

—Andrew Beaton and Ben Cohen contributed to this article.

Write to Brian Costa at [email protected] and Rachel Bachman at [email protected]