Two things become clear perusing U.S. District Judge Robert Pitman’s stinging, 37-page, June 7 court order demanding at long last accountability of Baylor University and the increasingly infamous Pepper Hamilton law firm regarding discovery materials relevant in Title IX lawsuits filed by 15 former students alleging that Baylor bungled their reports of sexual assault. First, it’s obvious by now attorneys for the Christian campus and the Philadelphia law firm tapped to investigate Baylor’s mishandling of sexual assaults are stalling and dodging in ways that test good faith.
Second, it’s abundantly clear that Judge Pitman, a low-key, patient and thoughtful jurist, is not only on to these attorneys but exasperated by time-consuming, groundless legal maneuvers that at times strike one as contemptuous of not only the judge and legal system but the young women whom one could argue Baylor has already failed. It also sends a conflicted message to present-day Baylor women whom Baylor presumably seeks to protect from assault and such administrative indifference using recommendations from the very law firm now seemingly prolonging all this suffering.
Judge Pitman at one point notes that Pepper Hamilton violated a court order for discovery materials when it failed to file all substantive objections by a March 15 deadline, then failed to comply with another court-ordered deadline to actually produce materials to attorneys for the 15 former students. “This violation,” Pitman writes, “has caused three months of delay in a case that has already been pending for three years and forced the parties to revisit issues that should have been resolved two years ago when the subpoena was first issued. This conduct increases costs for all parties and wastes public resources that are meant for adjudicating good-faith disputes.”
At another point, the judge expresses astonishment at “Baylor’s repeated discovery of materials at the 11th hour,” which “makes this case longer, more burdensome and more expensive for all parties.” He refers to Baylor’s certifying last September by email to attorneys for the former students that it had furnished all court-ordered evidence, then this spring discovering “a few hundred documents” which plaintiffs say actually consist of “an additional 1,192 documents.” All this then requires contextual review, reanalysis and sorting for duplication.
Assuming Pitman hasn’t gone batty by now, one can only conclude from his June 7 broadside one of two things: Attorneys for Pepper Hamilton and Baylor are stonewalling in hope of divine intervention or incompetent. Or maybe they’re just auditioning for jobs in the Trump administration in defying federal courts. In any case, Pitman makes clear that, whatever objections these attorneys have offered before, they’ve long since exhausted justifiable grounds for complicating and delaying the production of evidence.
Friday’s filing by attorneys for the former students (Jane Does 1-15) over yet another late dump of evidence marvels at excuses provided by Baylor for delays, including Memorial Day and graduations; accuses Baylor of “so much gamesmanship”; and suggests Baylor is trying to “wear down” the plaintiffs. Plaintiffs attorney Chad Dunn’s retort: “Lest there be any confusion, plaintiffs won’t be worn down.”
The scheme may even backfire beyond possible court sanctions: “There is now a fact dispute about whether Pepper Hamilton ever prepared a ‘final’ or ‘internal’ report on the investigation that was delivered to Baylor in some form but never publicly released,” Pitman writes, reviving a theory pressed by everyone from skeptical Baylor alumni to desperate apologists for former football coach Art Briles, who lost his job in the sex scandal in spring 2016. “Pepper Hamilton’s emails and billing entries strongly indicate that there was, in fact, a Pepper Hamilton investigation report.”
Given how Baylor University regents have maintained on a stack of Bibles and to the disbelief of many that no hard copy of the damning Pepper Hamilton investigation actually exists, that it was delivered orally, then distilled by the supposedly astonished regents themselves in CliffsNotes form, one could argue Baylor as a resolutely Christian university with ambitious aims might take a devastating hit in leadership credibility before this federal trial even gavels into reality — assuming it ever does.