Baylor University is seeking to limit disclosure of certain documents the university believes are confidential during its ongoing trademark infringement lawsuit against the Baylor Alumni Association.
At issue are records the BAA is seeking during the pre-trial discovery phase of the lawsuit related to licensing agreements the university has with other entities, such as the Baylor College of Medicine, Baylor Scott & White Health, Baylor Health Care System and the Baylor Health Care System Foundation.
Attorneys representing Baylor in the proceedings argued Friday in a hearing in 74th State District Court Judge Gary Coley Jr.’s court that the release of such records would endanger proprietary trade secrets and harm the university’s business dealings with current and future partners.
“They’re a very valuable contract, in each case, for the university,” said Tony Visage, an Austin-based attorney who is representing Baylor in the dispute. “We don’t need the BAA or the press or whomever to know what we do with each one of those. It would hurt us with the next one we’re trying to do with another institution, or if it’s one with a financial benefit.”
Visage said Baylor’s in-house legal team houses the licensing agreements on a separate information server to which limited personnel have access.
But lawyers for the BAA say they think those agreements are structured similarly to the 1993 licensing agreement between Baylor and the alumni association.
Baylor in December 2013 announced that it was severing that agreement, in part because it granted the BAA “a perpetual and fully paid up license” to use the Baylor Alumni Association and Baylor Line trademarks. The university has argued that provision, along with a clause that allowed the BAA to terminate the agreement at will, gave Baylor the authority to unilaterally terminate the licensing agreement.
Baylor’s decision to terminate the agreement followed the BAA’s rejection of a transition agreement that would have dissolved the BAA and allowed the university to take over all alumni outreach activities but granted the alumni group the ability to continue printing “The Baylor Line” magazine.
“One of the things we’d like to show is that there are other people with these perpetual licenses, and Baylor hasn’t said, ‘Oh by the way, we can terminate this at will,’ ” said Austin attorney Shannon Ratliff, who is representing the BAA.
“Baylor University has singled out the Baylor Alumni Association, for lack of a better term, seeking to run them out of the alumni business. And the fact that they are selective in whether a contract is at-will or not, seems to be (based) on that point.”
The BAA has filed a motion to compel Baylor to provide those agreements as the two sides exchange records during the lawsuit’s discovery phase, the pre-trial period in which parties share documents related to the case before the lawsuit is tried.
Meanwhile, Baylor is seeking a protective order that would limit each side from disclosing records deemed confidential without the judge’s approval.
Coley is expected to make a decision on the requests next week.
Andy McSwain, a Waco-based attorney who also is representing Baylor in the proceedings, argued that the protective order is needed to prevent the BAA from leaking information to the media to sway public opinion on the case.
The petition for the protective order includes, as an example, a copy of a Sept. 9, 2014, article that appeared in “The Baptist Standard” in which BAA leaders disclosed that the organization was making a final settlement offer to Baylor in hopes of resolving the lawsuit.
In addition to licensing agreements with other outside entities, the BAA is requesting copies of communication between Baylor and the school’s board of regents about the licensing agreement, communications with current and former BAA officers, and minutes of regents meetings in which the transition and licensing agreements were discussed.
Subject to privacy
“I would suspect that most people, when they send that kind of communication, would reasonably expect that it’s subject to some kind of privacy, particularly in disputes like this one that has generated substantial, divisive opinion on one side or the other,” McSwain said in the hearing.
“We’re not talking about whether these documents are producible in the first instance. We’re talking about whether or not they’re capable of winding up in the press without coming to talk to you first.”
The two entities initially agreed to use a standard protective order while exchanging documents. But the BAA then sought to revise the terms because they believed the order would prevent leaders from sharing details of the case with its members.
“I’m the president of a nonprofit corporation with a membership that is entitled to know the truth,” BAA President Keith Starr said. “My members are entitled to know the truth and that’s all we want to do. I want to share the whole thing with them. I want to be in a position where if any one of my members asks me a question about any of the evidence, I want to be able to answer it.”
Baylor spokeswoman Lori Fogleman declined to answer questions about Friday’s hearing and the petition for the protective order.
“The lawsuit is proceeding as we continue to defend our licensed trademarks and the university’s rights and responsibilities to Baylor alumni worldwide,” Fogleman said.