Tom nesbitt


The judge presiding over the lawsuit between Baylor University and the Baylor Alumni Association scolded attorneys for both sides Thursday after a once-civil pretrial hearing grew increasingly contentious.

During a four-hour hearing that was twice as long as scheduled, 74th State District Judge Gary Coley Jr. angrily rebuked attorneys Andy McSwain and Ryan Botkin after the attorneys’ bickering intensified.

Coley called them both out and asked if they needed to finish their quarreling in the parking lot, saying if they continued sniping at each other, the hearing, which was set for two hours, would last until the end of the day.

“Is there anything I am saying that is unclear to either of you?” Coley asked.

After a 10-minute break that Coley spent in his chambers, the attorneys announced that they had agreed to move the trial date for the long-running conflict from Jan. 18 to March 28.

Baylor had filed a motion to postpone the trial until July, which the BAA opposed.

McSwain, who represents Baylor with Austin attorney Steve McConnico, and Botkin, who represents the alumni association with Austin attorney Katherine Chiarello, both said after the hearing that the parties have agreed to go to mediation in an effort to resolve the dispute.

McConnico said he thinks there is a chance the matter can be resolved without a trial, which the parties said could take two weeks.

“Well, there is a lot of history to it, and something that has a long history sometimes takes a long time to work out,” McConnico said.

Botkin and Chiarello declined comment after the hearing.

Baylor sued the BAA in June 2014, alleging the association is improperly using Baylor’s name and licensed trademarks. The university moved to sever licensing agreements with the BAA in December 2013 following failed attempts to merge the alumni association with Baylor’s own in-house alumni network.

The university is seeking a judgment that the BAA be terminated or re-formed and limited to helping students with financial aid.

The BAA filed a countersuit, claiming Baylor breached its contract with the association and improperly tore down its campus headquarters.

BAA President Tom Nesbitt, an Austin attorney, said after the hearing that some involved on both sides are seeking to put their differences behind them.

“I believe that our disputes can be resolved,” Nesbitt said. “The Baylor Alumni Association and its members love Baylor. We don’t love what this group of regents has done to the Baylor Alumni Association, but this dispute can be resolved. There are members of the Baylor family on both sides of this dispute who are committed to trying to find a resolution.”

Discovery disputes

Thursday’s hearing was about discovery disputes on both sides. For many requests, Baylor claims the BAA is seeking what Baylor considers confidential documents, such as minutes from Baylor board of regents meetings and records from board executive sessions.

The attorneys sought rulings on at least 14 disputed items that each side is refusing at this point to disclose; have disclosed but are claiming the documents are confidential; or have disclosed in part with portions redacted that they claim are confidential.

Coley said he would try to rule on the matters in a week.

The exchange between McSwain and Botkin that angered the judge was about whether each side would disclose if their representatives were posting comments anonymously on message boards that were disparaging to the other side.

The BAA also is seeking copies of emails between Baylor board members, transcripts of regents’ meetings and committee executive sessions and other documents, including records reflecting how the decision was made to raze the Hughes-Dillard Alumni Center.

Baylor is asking the judge to order the BAA to release financial information, including records that show that the BAA paid $157,000 to a public relations firm to help get its message out during its longtime dispute with Baylor.

“That is exactly $157,000 more than they gave for student scholarships during the same time,” McSwain said, adding that Baylor has hired an expert who will testify that the BAA was not a viable entity, operated in the red for many years and dipped into its endowment fund to stay afloat.

Chiarello argued that Baylor’s claims that the documents it seeks to protect are confidential are not made in good faith and, instead, are made because Baylor is concerned that their public release will embarrass the university and its administration.

McSwain countered that the documents are confidential and not relevant to the case and that the BAA merely wants to release them to belittle the university and to enhance its standing in the litigation.

The BAA has released two rounds of emails between board members and administrators. The release of the emails ultimately drew apologies from top Baylor executives for their tone and content. The BAA obtained the emails through the lawsuit discovery process, though those documents were not designated confidential.

In the BAA’s opposition to the confidentiality designations, Chiarello notes in court documents that “Baylor also has attempted to conceal an email chain between the then-chairman of the Board of Regents and senior administrator Tommie Lou Davis in which the chair refers to a group of female Baylor students using a sexually demeaning term and compares the situation to his treatment of the Baylor Alumni Association.”

McSwain argued that the email should not be released because it refers to students in a sorority who “have no dog in this fight” and the messages might violate their privacy.

The motion did not say when the email was written or who the Baylor board chairman was at the time.

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