Big12 Thread

Judge orders Baylor to turn over Pepper Hamilton documents

David Barron , Houston Chronicle June 2, 2020 Updated: June 2, 2020 5:52 p.m.

Texas Sports Nation // College

A federal magistrate judge Tuesday issued a sharply worded order that requires Baylor University to provide documents prepared by the Philadelphia law firm Pepper Hamilton to attorneys for 15 women who are suing Baylor for alleged Title IX violations.

Magistrate Judge Andrew W. Austin, who is overseeing the case filed in an Austin federal court, gave Baylor until July 15 to turn over documents to attorneys for the women and to designate documents it believes are not subject to evidence discovery in the long-running lawsuit.

Austin warned Baylor that he will take a dim view of an overbroad effort by the school to withhold Pepper Hamilton documents from discovery.

“The court will not tolerate any more misreadings of a court order,” Austin wrote. “Baylor has made a habit of avoiding discovery compliance by interpreting orders in its favor even when the order directs otherwise.”

He added, “The court warns Baylor that it will impose sanctions if Baylor fails to comply in good faith with this order.”

Austin also had a sharp response for Baylor’s suggestion that it will attempt to prevent at trial any mention of Pepper Hamilton, which was hired in 2015 to investigate allegations of sexual assault of female students on and off campus and of Baylor’s shortcomings in enforcing Title IX protections.

Prohibiting mention of Pepper Hamilton’s work, he said, “would require witnesses to testify in half-truths in order to pretend that Baylor conducted its own investigation and originated its own policy reforms.”

“Baylor is effectively asking its witnesses to lie,” he added.

Pepper Hamilton’s investigation resulted in the submission of more than 100 proposed Title IX enforcement reforms to the school, which in May 2016 adopted the firm’s suggestions and also fired football coach Art Briles and demoted university president Kenneth Starr, who subsequently resigned.

Attorneys Chad Dunn and Jim Dunnam, who represent the 15 women, have repeatedly sought copies of what was referred to as the “Pepper Hamilton report” but were told by Baylor there was no written report of that description that could be handed over.

In Tuesday’s order, however, Austin ruled that through its defense in the case, Baylor has waived attorney-client privilege of Pepper Hamilton’s work product. He said those documents should be handed over to the women’s attorneys unless Baylor can meet strict standards for declaring certain documents as privileged information.

“This is not a situation where a university conducted its own investigation and implemented its own reforms while consulting with a law firm for guidance,” Austin wrote.

“Pepper Hamilton, not Baylor, conducted the investigation, designed the reforms and implemented many if not most of the changes, and Baylor’s policymakers depended heavily on Pepper Hamilton for knowledge of the relevant facts and for advice in how to respond to those facts.

“Given this, it is impossible for the court, the parties or a jury to separate Baylor’s efforts from Pepper Hamilton’s, much less to do as Baylor proposes and pretend that Pepper Hamilton’s efforts were Baylor’s. … The court thus far has seen no evidence in the record that Baylor originated any findings or reforms without Pepper Hamilton’s assistance.”

Baylor had no immediate comment on Austin’s ruling.

Dunn in an email said, “Baylor has spent four long years and millions of dollars to conceal the truth, even going so far as to deny the existence of a Pepper Hamilton Report that plainly exists.

“This ruling is an important step forward to bring badly needed transparency to this university and therefore bring some justice to the 15 courageous women who we are proud to represent.”
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