A federal judge sanctioned Pepper Hamilton on Friday after ruling the Philadelphia-based law firm “knowingly” violated court orders and ignored a subpoena to produce documents to 15 Jane Doe plaintiffs in their ongoing lawsuits against Baylor University.
U.S. District Judge Robert Pitman’s order comes four days after a 90-minute, show-cause hearing in Austin in which he cautioned attorneys for Pepper Hamilton and Baylor that their actions were delaying the litigation and increasing costs to all parties. He said in ordering the hearing that sanctions were appropriate against the firm, which Baylor hired to investigate the school’s handling of sexual assault allegations.
Pitman ordered Pepper Hamilton to pay plaintiffs’ attorneys Jim Dunnam and Chad Dunn “reasonable” expenses and fees incurred in preparing their amended motion to compel and the motion for sanctions.
“The evidence of Pepper Hamilton’s conduct in violation of the court’s orders is so ‘clear, direct, weighty, and convincing’ that the court reaches this conclusion with clear conviction and without hesitancy,” the judge wrote.
Pitman directed Dunnam and Dunn to file a motion detailing their fees and expenses by Aug. 20.
“Every step we take toward sunshine being shown upon what happened at Baylor is a positive step, and this is one more positive step,” Dunnam said.
Dallas attorney Bill Cobb, who represents Pepper Hamilton, did not return a phone message Friday.
Frustrated with Pepper Hamilton’s actions, which they charged have prolonged the lawsuit discovery process, the plaintiffs’ attorneys asked Pitman to sanction the firm. While Dunnam and Dunn did not seek sanctions against Baylor, they steadily have complained that Baylor has assured the court that it has complied with discovery orders, only to later bombard the plaintiffs with additional documents.
Pitman’s order Friday also addresses Baylor, saying the court “cautions Baylor that even inadvertent violation of a discovery order is eligible for sanctions, and the court will sanction if Baylor makes further production of Pepper Hamilton materials without adequate explanation.”
Baylor spokesman Jason Cook declined comment on Pitman’s order but said Baylor has provided more than 3 million documents and spent more than $4.5 million during the discovery process.
Pitman seemed satisfied with explanations offered by attorneys for Baylor and Pepper Hamilton at Monday’s hearing that supported their contentions that Pepper Hamilton never produced a discoverable final or internal written report about their investigation before it made its findings and recommendations to the Baylor Board of Regents in May 2016.
Dunnam and Dunn charged that billing records and emails they received through the discovery process seem to indicate that such a report, which they and others have repeatedly asked for, was produced. It is still not clear if a report exists or if Pepper Hamilton is claiming that it is privileged and should not be disclosed.
“At the hearing, Baylor proffered statements by a Pepper Hamilton attorney who testified that they refer to internal attorney work product,” Pitman wrote in his order. “If plaintiffs have remaining concerns about this issue, they may raise that with the court.”
Pitman granted the plaintiffs’ motion to compel and ordered Pepper Hamilton to comply with the subpoena to produce all records in its custody dated, created or received between Jan. 1, 2003, and Nov. 6, 2017.
As suggested at Monday’s hearing, Pitman agreed that an “independent, third-party vendor” would be the most efficient way to manage the production of remaining discovery materials. The judge ordered the parties to confer and select a vendor to comply with the judge’s orders.