An Austin federal judge has ordered Baylor University to turn over to 10 female plaintiffs suing the school materials related to a Pepper Hamilton investigation that concluded that its administrators failed to protect women from sexual assault.
Baylor University hired the Philadelphia law firm in 2015 to conduct an independent investigation in the wake of a scandal in which numerous women alleged they had been sexually assaulted by members of the school’s football team. The firm’s investigation concluded that university officials had not done enough to stop rape on campus, prompting Baylor’s Board of Regents to fire head football coach Art Briles and demote Baylor Chancellor Ken Starr, who later resigned from the school.
The 10 women later sued Baylor alleging Title IX violations, specifically that the school discouraged them from reporting their assaults and created a harassing environment forcing them to leave campus and depriving them of a college education.
But the university refused to turn over information related to the Pepper Hamilton investigation to the female plaintiffs citing the attorney/client privilege.
In his Aug. 11 decision, U.S. District Judge Robert Pitman concluded that university indeed had attorney/client privilege when they hired the firm for legal advice, but they’d waived that privilege by disclosing the results of the Pepper Hamilton investigation to the public in a May 2016 summary, among other things.
Pitman determined Baylor was using Pepper Hamilton investigation materials as both a “sword and a shield” by releasing certain details of the law firm’s report to the public and claiming privilege in the lawsuit at the same time.
“Baylor chose to publicly release a detailed summary of Pepper Hamilton’s investigation that disclosed, among other things, attorney-client communications,” Pitman wrote.
“In considering fairness, the court asks not merely whether Baylor has simultaneously invoked the Pepper Hamilton investigation as both a sword and a shield in this litigation but rather, ‘Would it be fair to allow Baylor to protect remaining undisclosed details regarding the Pepper Hamilton investigation when it intentionally, publicly, and selectively released certain details of the investigation, including attorney-client communications?’” Pitman wrote. “The court concludes, with respect to material covered by the attorney-client privilege, that it would not.”
But Pitman ruled that certain information including memos, notes and interviews from Pepper Hamilton’s investigation that were not released by Baylor were protected by the attorney work product privilege.
Chad Dunn, a Houston lawyer who represents the 10 plaintiffs, said Pitman’s decision is a critical leap forward for the litigation as plaintiffs are allowed a better look of the reasons why Baylor’s Board of Regents fired university staff in the wake of the scandal.
“It’s been well-developed in the law that if someone hires a lawyer and gets advice and reveals that advice to the public then they no longer enjoy attorney/client privilege,” Dunn said. “From a legal standpoint the decision is unremarkable but looking at the decision’s effect on this litigation and Baylor in particular, this decision will be fateful I believe.”
In a statement, Baylor University noted that it appreciates Pitman’s ruling that attorney work product privileges continue to apply in the case.
“All of the work product and related materials prepared by Pepper Hamilton are currently protected from discovery, with the provision of the university being required to produce a detailed log of certain work product and to identify witnesses who were interviewed,” according to Baylor’s statement.
“Baylor continues to express concerns regarding the protection of students’ personal records, specifically the desire of many students – who are unrelated to this case – that their identities remain anonymous and their information confidential,” the statement notes.