The judge presiding over a Title IX lawsuit that pits 10 former female students against Baylor University laid more pretrial ground rules Friday and said if the plaintiffs’ claims that the university is withholding information are true, he would have “grave concerns.”
Attorneys on both sides of the case met with U.S. District Court Judge Robert Pitman for about an hour Friday to get his direction on pretrial discovery matters and to iron out some disputes between the parties.
Ten former students, known in the federal lawsuit only as “Jane Doe” 1-10, allege that Baylor officials’ inappropriate responses to reports of sexual assault between 2004 and 2016 fostered a dangerous environment.
Jim Dunnam, who represents the plaintiffs with attorney Chad Dunn, told the judge that for the third time since the discovery process began, it appears Baylor is withholding information requested by the defense, including a warrantless arrest affidavit.
He said the only way the plaintiffs became aware of the situation is because they gained access to the documents through other means and noticed that materials Baylor produced had pages missing.
Dunnam referred to the matter at the hearing as “finding things out of the ordinary.” However, in a motion filed this week, he and Dunn described it as “what appears to be another event of intentional withholding of relevant information.”
Lisa Brown, one of Baylor’s attorneys, defended the university’s responses. Brown denied that any documents not produced were intentional acts and said the university is dealing with a large volume of information that comes from multiple departments.
She complained to Pitman that the plaintiffs did not contact her with their concerns to allow her first to look into the problem instead of filing a motion on the eve of the hearing and calling them out in front of the judge.
“The repeat pattern we are seeing is a failure to confer,” Brown told Pitman. “These are very serious charges, and we haven’t been given a reasonable opportunity to investigate and respond.”
The plaintiffs allege in their most-recent motion that Baylor officials called their request for student conduct code violations a “fishing expedition, and nothing more.” The plaintiffs argue that one or more of the Jane Does were charged with conduct code violations after their sexual assault reports to the university.
“As it turns out, Baylor has so far withheld at least some of plaintiffs’ records, that, had they been produced, would have allowed plaintiffs to immediately and definitively rebut the impression made to the court that no evidence existed that a plaintiff was subject to honor code discipline after reporting a sexual assault, and demonstrate conclusively that this is not a ‘fishing expedition,’ ” the motion states.
According to the motion, Jane Doe 4 was sanctioned for alleged off-campus alcohol use in June 2014, 14 days after she notified the Baylor counseling center of her rape.
The letter informing the student about the disciplinary action was missing from records produced by Baylor, the motion alleges.
“Had the plaintiffs not had access to a document that should have been produced, they would not have ever known about this,” the judge said. “It at least raises the specter that something is going on, and I’m looking forward to hearing an explanation and assurances that this won’t keep happening.”
In other matters, the judge instructed the parties to keep working together to develop the terms and scope to guide an independent company in its search for relevant documents among Baylor’s electronically stored information.
Baylor has expressed concerns that certain documents requested could violate student privacy rights under the Family Educational Rights and Privacy Act.
“What I would hope is that you work a little better together than you seem to be,” Pitman said.
The judge has set a tentative trial date for the case for Oct. 1, 2018.