Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is Savannah Cade.
The first hearing in former Provost Chris Clemens' lawsuit against the University of North Carolina at Chapel Hill took place at Orange County Superior Court in Hillsborough on Wednesday. After nearly an hour of arguments, Superior Court Judge R. Allen Baddour ruled only to order the preservation of records, declining the broader requests for forensic imaging and affidavits.
Clemens filed the lawsuit against the university for alleged violations of North Carolina's open meetings and public records laws. The case centers on claims that members of the UNC-Chapel Hill Board of Trustees used the encrypted messaging app Signal to conduct official business in secret, preventing public oversight.
During Wednesday's hearing, Clemens' attorney, David McKenzie, asked the court to issue an order requiring the board to preserve all potentially relevant records. His motion requested expedited discovery, a preservation order, forensic imaging of devices, and an in-camera review. Only the preservation of records was ultimately ordered by Baddour.
McKenzie described the case as a
"signal case" for transparency, arguing that it would demonstrate to public officials across North Carolina the importance of compliance with open government laws. He asked Baddour to compel the board to preserve all messages on their devices that might be subject to discovery, particularly those belonging to trustee chair John Preyer. McKenzie also sought to have trustees' devices forensically imaged to recover deleted messages and to have them sign sworn affidavits confirming that all evidence was preserved.
Throughout the hearing, Baddour questioned McKenzie about the scope of his requests.
"I am not trying to direct your motion, I am just trying to understand it, because it seems different than what's on the paper," Judge Baddour said.
"This is not a normal motion. I do not know what you're asking for."
UNC-Chapel Hill and the Board of Trustees were represented by attorney Wes Camden of Williams Mullen. Camden said he had already advised his clients to preserve relevant records when the lawsuit began and argued that the request for device imaging was unnecessary, procedurally improper, and substantially unreasonable.
Camden described the attempt to image trustees' devices as a
"fool's errand," saying that the plaintiffs' allegations of automatically deleted messages were not only meritless but did not justify the extensive costs and privacy concerns involved. He cited an estimate from forensic expert Clark Walton, who said the imaging process could cost around $200,000.
Baddour pressed McKenzie on the legal basis of the suit, asking whether it was being brought as a public records action or a declaratory judgment case. McKenzie said it was both, prompting further questions about why Clemens had not filed a public records request before suing.
"I have never seen a public records case that did not have any requests for public records," Baddour said.
"How am I to judge what is not getting produced, when they have not been asked to produce it?"
The hearing concluded with Baddour instructing McKenzie to draft a preservation order commanding the board not to destroy, delete, or otherwise dispose of any written communication
"out of an abundance of caution." Baddour made clear that he was not finding any evidence of spoliation or intentional destruction of evidence.
The order applies only to the UNC-Chapel Hill Board of Trustees, not to the entire university, and only requires preservation of evidence rather than forensic imaging of devices, as McKenzie had initially requested.
Clemens' lawsuit focuses on the use of the Signal messaging platform, which automatically deletes messages after they are read. The complaint alleges that trustees used Signal to deliberate in secret on university matters, including discussions of a vote of no confidence in Clemens.
"[T]rustees and senior staff have repeatedly relied on off-channel, auto-deleting communications to discuss controversial or consequential Board matters, while simultaneously routing policy debates into closed session," McKenzie wrote.
"This combined practice policy in secret, decisions orchestrated through unnoticed electronic exchanges, and failure to capture/retain related records-constitutes ongoing, systemic, and purposeful evasion of North Carolina law."
Clemens also alleges that the board improperly entered closed session four times by citing personnel exemptions in state law, then used those meetings to discuss tenure and athletics policy rather than personnel matters. According to the complaint, one of those meetings led to the hiring of football coach Bill Belichick, a move Clemens says cost the university tens of millions of dollars over five years.
In the lawsuit, Clemens asks the court to declare the board's use of the personnel exemption unlawful, to prohibit the board from conducting general policy or budget discussions in closed session, to require more specific closure motions and detailed minutes, to prohibit the use of auto-deleting applications for public business, to mandate training for board members, and to award attorneys' fees as allowed by law.
Clemens served as executive vice chancellor and provost from February 2022 until May 2025, when UNC leadership requested his resignation, citing
"inappropriate disclosure" of closed-session discussions.
Malcolm Turner, chair of the Board of Trustees, issued a statement calling Clemens' lawsuit a
"baseless assault" on the board.
"His allegations are disappointing and inaccurate, not to mention a waste of taxpayer dollars, for which this former officer of the University shows no regard," Turner said.
"His claims will not withstand scrutiny."
UNC-Chapel Hill also issued a statement when the complaint was filed in September.
"We're aware of the litigation and are reviewing it closely," the statement said.
"As this is an active legal matter, the University will not provide comment while the case is pending."
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