Attorneys for Baylor University and 10 former students with Title IX lawsuits pending against the school filed a joint order Friday proposing a complex road map to guide the release of materials reviewed by Pepper Hamilton in its investigation of sexual violence at Baylor.
The joint response comes a week after U.S. District Judge Robert Pitman ruled that Baylor must provide plaintiffs’ attorneys with interview recordings, notes, text messages and other evidence the Philadelphia law firm considered in its nine-month investigation at Baylor.
In a joint response to Pitman, attorneys on both sides report that they have had at least “three conference calls, exchanged multiple communications and conducted a multi-hour in-person meeting” concerning how Baylor will provide electronically stored information to the plaintiffs through the discovery process.
The attorneys report they have reached agreements on many of the discovery issues, but said there are matters they don’t agree on that the judge likely will have to settle, including which words to use to trigger document searches and the individuals whose records can be searched.
Baylor’s attorneys have said the electronically stored information reviewed by Pepper Hamilton amounts to about 450,000 documents. Also, Pepper Hamilton was provided about 90,000 text messages “and a yet unknown number of tangible materials,” the joint response states.
The parties tell Pitman they expect the search for the agreed materials to take about two months. Other materials not in agreement will take longer, particularly if a hearing is required for Pitman to resolve the disputes.
Baylor fought the release of the information Pepper Hamilton reviewed, saying the university was concerned about protecting student confidentiality. Baylor officials also claimed that the Pepper Hamilton investigation, commissioned by Baylor, is privileged and that the plaintiffs’ request for the materials was “legally groundless and misguided.”
The judge, however, ruled earlier this month that Baylor waived attorney-client privilege with Pepper Hamilton in May 2016 when it released a 13-page “findings of fact” summary admitting “fundamental failure” in its response to sexual assault reports and its fulfillment of Title IX requirements.
Pitman also said Baylor waived privilege when it released a list of 105 recommendations from Pepper Hamilton.
Baylor is represented by Lisa Brown, Holly McIntush and Julie Springer. The 10 plaintiffs are represented by Jim Dunnam and Chad Dunn. There is not another hearing date set in the case, and the attorneys told the judge they would continue to try to work out their differences in an effort to avoid involving him.
A tentative trial date is set for October 2018.
Disputes between the parties at this time include the appropriateness of redaction and materials Baylor has withheld. The sides have agreed Baylor will provide about 150 pages of unredacted records, accompanied by the redacted versions, for Pitman to inspect and rule if they should be produced.
While the parties have agreed to the majority of words to be used as search triggers for the electronically stored information, the joint motion says disagreements remain for about 40 words or phrases.
Search terms under dispute include “alcohol,” “asking for it,” “drunk,” “Equestrian,” “gang,” “guilty,” “ho,” “incapacitated,” “intoxicated,” “liar,” “mental issues,” “racial,” “retaliation,” “she dress,” “she expect,” “she wearing,” “wasted” and others.
“Plaintiffs contend that these additional search terms are reasonably calculated to lead to admissible evidence that will not otherwise be located using only the agreed terms,” according to the joint motion. “Defendant contends that the terms will result in an unnecessarily broad recovery of (material) that is not proportional to the case.”
Likewise, the parties have agreed to about 65 individuals whose records can be searched, while they disagree on about 30, including the remaining members of the Baylor Executive Council.