A landmark ruling on Friday by U.S. District Judge Robert Pitman will force Baylor University to produce interview recordings, notes, summaries and evidence from the secretive Pepper Hamilton LLP investigation into sexual violence reports at the world’s largest Baptist university.
The ruling comes in one of five Title IX lawsuits the school faces — this one with 10 former students who allege their reports of sexual assault were mishandled — and applies to discovery Baylor must produce for the plaintiffs.
Baylor waived attorney-client privilege with Pepper Hamilton in May 2016 when it released a 13-page “findings of fact” document admitting “fundamental failure” in its response to sexual assault reports and its Title IX implementation from 2012 to 2015, Pitman wrote in his ruling. The judge also cited a list of 105 recommendations for improvement from the law firm as evidence that privilege was waived.
A lengthy legal filing by three Baylor regents alleging the football program covered up crimes also waived privilege, according to the ruling.
“I think it is one more step, and a big step, in the truth coming out for these young women,” said Jim Dunnam, a Waco attorney representing the 10 alleged victims.
It remains unclear how much of the information will be made public before or during the trial, which is tentatively scheduled for October 2018.
Though Pitman ruled Baylor waived attorney-client privilege, he also ruled work-product privilege between the university and Pepper Hamilton remains protected.
Dunnam has said he “nearly fell out of (his) chair” at a June 16 hearing when a Baylor attorney said Pepper Hamilton’s primary purpose with the university related to the school’s anticipation of lawsuits.
However, Pitman said “there are no magic words a party must use to invoke the work-product privilege. Further, it is reasonable that a party would not want to announce that it anticipated litigation when engaging outside counsel for fear that doing so might encourage that very litigation.”
In a statement, the university called the ruling “a complex order.”
“The university appreciates the court’s ruling that attorney work product privileges continue to apply in this case,” the statement said. “All of the work product and related materials prepared by Pepper Hamilton is currently protected from discovery, with the provision of the university being required to produce a detailed log of certain work product and to identify witnesses who were interviewed.”
Pitman ruled litigation strategy, for example, cannot be included in a privileged log of investigative materials because it would violate work-product protections.
“Baylor continues to express concerns regarding the protection of students’ personal records, specifically the desire of many students — who are unrelated to this case — that their identities remain anonymous and their information confidential,” the statement said.
In recent months, the lawsuit focused on confidentiality concerns.
In a May filing, plaintiffs accused Baylor and Pepper Hamilton of shifting their legal relationship to establish attorney-client privilege. The shift came in a February 2016 letter approved by then-Pepper Hamilton attorney Gina Maisto Smith, Baylor General Counsel Chris Holmes and Baylor regent David Harper. The investigation had been underway for about five months at the time.
The university fired back, saying the investigation was always privileged while calling the demand for Pepper Hamilton-related materials “legally groundless and misguided.”
But the Friday ruling shows a misstep in Baylor’s legal strategy to protect attorney-client privilege with Pepper Hamilton while handling near-constant calls for transparency from alumni, donors, faculty and the press.
Pitman asserted that privilege was once again waived with the bombshell February legal filing by regents accusing former head football coach Art Briles, former football program staffer Colin Shillinglaw and former Athletics Director Ian McCaw of attempting to keep crimes out of the legal system and the university’s disciplinary processes.
Houston attorney Rusty Hardin, who represented three regents, then wrote an op-ed in the Houston Chronicle praising his clients for transparency and that they “deserve a great deal of credit.”
Friday’s ruling will create a nationwide ripple and is likely to be examined by many universities, said Peter Lake, a law professor with expertise in Title IX and higher education policy at Stetson University College of Law.
“What we’re seeing nationally is that colleges have not routinely been involved with high-profile external investigations like this,” Lake said. “This determining of boundaries of where attorney-client privilege or work product lies is not uncharted territory for higher education, but it isn’t entirely well-charted either.”
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Lake agreed it is too early to tell which Pepper Hamilton materials will be made public and when. Sources on both sides of the lawsuit indicated the same.
Lake said the ruling will not influence universities’ decisions to hire outside law firms to conduct investigations, but it could force them to be more careful about how they engage with firms and which findings are released.
“Roaming around the edges of all of this is that an institution has every right to defend itself with lawyers, just like anybody else,” Lake said. “But I sometimes see that butting up against public perception that somehow, despite federal mandates and clearly-established rights to counsel, institutions should operate with 100 percent visibility at all times ... This isn’t business as usual for higher education.”