Midway through a nine-month probe into Baylor University’s institutional response to sexual violence, the investigating law firm and the university revised their legal relationship to, in anticipation of litigation, conceal the investigation’s most damning findings, documents filed in a Title IX lawsuit initiated by 10 alleged sexual assault victims state.
Communications between high-ranking Baylor officials and a Pepper Hamilton LLP attorney reflect the shift in relationship to establish attorney-client privilege around the investigation, which led to the firings of Ken Starr as president and Art Briles as head football coach.
Lawyers representing the plaintiffs in Wednesday’s filing argue Baylor’s release of pertinent information to the NCAA, the U.S. Department of Education, its accrediting agency and other investigators should cancel any attorney-client privilege and allow the information to be released in the discovery process for their suit.
The plaintiffs, former students who allege assaults between 2004 and 2016, are seeking documentation supporting a 13-page summary of the Pepper Hamilton investigation Baylor regents released one year ago. Between 2011 and 2014, according to that summary, university administrators and athletics department officials discouraged alleged victims from reporting their assaults.
“The basis for those findings, which are quite heinous, need to be known in order for us to proceed with our case,” said Jim Dunnam, a Waco attorney representing the women.
The motion includes a February 2016 letter from then-Pepper Hamilton attorney Gina Maisto Smith to Baylor regent David Harper, in which both parties agreed that the investigation’s findings and communications between them “are in anticipation of litigation and are privileged work product.”
Pepper Hamilton’s work constituted professional legal service to Baylor and is protected by attorney-client privilege, the letter goes on to say. The document is signed by Smith, Harper and now-Baylor General Counsel Chris Holmes.
The filing also includes an October 2015 letter from Smith outlining the scope of the investigation, and attorney-client privilege is not mentioned. In a section listing additional engagement terms, Pepper Hamilton notes the attorneys “are bound by professional standards of confidentiality.” Pepper Hamilton conducted its investigation from September 2015 until May 2016.
“Our engagement is to conduct an independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues through the lens of specific cases,” Smith’s October 2015 letter states. “Our acceptance of this engagement does not involve an undertaking to represent you or your interests in any matter other than that described in this paragraph.”
In a contentious hearing before the Texas Senate Higher Education Committee, interim President David Garland testified that Pepper Hamilton was hired as investigators and not legal advisers, the plaintiffs’ motion states.
The university responded to Dunnam’s motion in a filing late Wednesday seeking to protect Baylor from all discovery requests regarding information unrelated to the 10 plaintiffs.
The plaintiffs’ requests “in many instances will expose intimate and painful details of non-parties’ lives to scrutiny and exposure for the purpose of highly publicized litigation,” attorneys Lisa Brown, Holly McIntush and Julie Springer argued on behalf of the university.
U.S. District Judge Robert Pitman ruled in March that the 10 plaintiffs have the right to sue Baylor under Title IX claims that the university created a heightened risk of sexual harassment or assault.
The university has argued that the claims of the alleged victims are vague, uninformed or untrue. It has also argued in a filing that some of the women have declined to sign authorizations enabling Baylor to review counseling and health records.
Baylor spokesman Jason Cook declined further comment on Thursday.
Later in March, the plaintiffs filed notice to subpoena materials from the Pepper Hamilton investigation, and Wednesday’s filing seeks information the university claimed is privileged.
Wednesday’s motion also references a February legal filing by three regents in an unrelated lawsuit that detailed the investigation’s findings of the failures of football program officials fired amid the fray, including Briles and former athletics director Ian McCaw.
“(Baylor regents) turn around and selectively disclose pieces of this very information that they say is attorney-client privileged, repeatedly, when it suits their needs,” Dunnam said. “That’s the opposite of transparency. That’s manipulating the disclosure of information in order to fit a narrative that they concocted that this was only a football problem and to shield the senior administrators that they refuse to identify.”
The plaintiffs’ motion also alleges former Baylor board Chairman Neal “Buddy” Jones, who left the board in 2013, possesses student email accounts, medical records and other relevant documents. Jones, who was subpoenaed by Dunnam, has not turned over documents because Baylor has not authorized him to do so, according to the filing.
“There is simply no basis by which Baylor can argue that plaintiffs are not entitled to plaintiffs’ own records and information,” the motion states.