AUSTIN — A judge considering sanctions against Pepper Hamilton said Monday that the Philadelphia law firm made a “risky” and “ill-advised” decision to ignore a subpoena and his discovery orders in a lawsuit involving the Baylor University sex assault scandal.
U.S. District Judge Robert Pitman conducted a 90-minute show-cause hearing Monday in Austin on persistent failures by Baylor and Pepper Hamilton over the last three years to produce materials to attorneys for former Baylor students in their Title IX lawsuits against the Baptist school.
While Pitman noted in a June 7 order that sanctions against Pepper Hamilton are proper, he took the issue under advisement and will rule later. Pepper Hamilton is not a defendant in the lawsuits.
Baylor hired Pepper Hamilton in August 2015 in the midst of the sexual assault scandal to conduct an investigation into how Baylor responded to sexual assault and Title IX violation allegations. Pepper Hamilton attorneys Leslie Gomez and Gina Smith issued a scathing list of findings to the university, which they said represented a “fundamental failure” in how such matters should be handled.
Pitman clearly got the attention of the parties, telling them the discovery process has dragged on far too long and that it’s high time to resolve the cases known as Jane Does 1-15 vs. Baylor University.
Chad Dunn and Jim Dunnam, attorneys for the former Baylor students who claim Baylor officials mishandled their sexual assault complaints, have long complained that Baylor is stonewalling and failing to comply with Pitman’s orders to turn materials over to them in a timely manner.
Even after Baylor certified to the court in September that its had complied with discovery issues, attorneys for the school produced reams of documents in what Pitman called “11th-hour” discoveries of materials, including Baylor police recordings of interviews with some of the plaintiffs.
“If not for subpoenas and the judge’s orders, none of these materials would have been produced,” Dunn said. “Today, we have had the fourth certification of these documents. Is this the one that is right?”
Dunnam and Dunn alleged in court documents that billing records and emails they have seen seem to indicate that Pepper Hamilton produced a report for the Baylor Board of Regents about their findings that should be disclosed, a claim Pepper Hamilton and Baylor have long denied.
Gomez, who attended Monday’s hearing, reiterated that Pepper Hamilton did not produce such a report and suggested that the misunderstanding could be a matter of semantics about how “report” is defined.
Gomez, who is no longer with Pepper Hamilton, told Pitman that Baylor made it clear to them from the start that administrators wanted to be as open and transparent as possible with the results of their investigation but that no report was drafted.
“I would like to remind the court that the first time the plaintiffs contacted Pepper Hamilton, they said, ‘We don’t have anything at all,’ ” Dunn said. “Then they got back to us and said, ‘We do have some things after all,’ and here we are two years later. Baylor has chosen to divide these things into files and we have to sit here and play Whack-A-Mole to try to determine which file these documents are in. Some of these arguments should have been presented to the court two years ago, but way too much water has gone under the bridge.”
The judge said in his order earlier this month that Baylor’s and Pepper Hamilton’s tactics have stalled the proceedings and increased the cost of the litigation to all involved.
Bill Cobb, who represents Pepper Hamilton, acknowledged that Pepper Hamilton made mistakes in the way they handled the requests for documents, but said the task is a daunting, complex and expensive one that the firm should not be saddled with at this point.
Julie Springer, one of Baylor’s attorneys detailed Baylor’s methods for responding to discovery requests and said Baylor has made “exhaustive efforts” to comply with court rulings. She added that the task is complicated by federal privacy laws that require redacting documents and efforts to determine which documents should be considered privileged.
Dunnam ended the hearing by apologizing to the judge if it appears he and Dunn are losing their patience or seem to be frustrated. He said it is “inconceivable” to him that Pepper Hamilton could make a two-day presentation to the Baylor Board of Regents without first compiling reports from which to work.
“We just want to get the truth and we just aren’t getting there, Your Honor,” Dunnam said.