With its storied traditions and dazzling athleticism, college football is a truly great American pastime. But in recent years, several football programs have faced allegations of sexual violence by players and institutional indifference to sex crimes and harassment. The universities have responded in part by engaging outside lawyers to investigate the allegations and recommend corrective actions. Predictably, public demands to release the “full reports” of such investigations followed, triggering equally predictable objections based on the complex attorney-client privilege issues such a release might involve.
While seemingly unique, recent cases at Penn State and Baylor highlight fundamental aspects of any institutional investigation—and several ways in which the initial decisions of in-house counsel shape nearly every aspect of the later use and discovery of those outside investigations.
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