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Big Law firm Pepper Hamilton might face sanctions at a hearing next week for violating a court order by withholding records that U.S. District Judge Robert Pitman of the Western District of Texas had ordered the firm to disclose to plaintiffs suing Baylor University in Waco, Texas.

The records trace back to 2015 when Pepper Hamilton represented Baylor in an investigation about how the school inadequately responded to sexual assault allegations by students.

Plaintiffs in Doe v. Baylor University requested the firm’s records in discovery in their Title IX lawsuit that alleges the university ignored their sexual assault allegations as students and created an environment on campus that allowed future sexual attacks to continue. Their lawsuit came after Pepper Hamilton’s 2016 report found administrators responded inadequately to female students’ allegations that Baylor football players sexually assaulted them.

Most recently in the discovery fiasco, Pitman ordered Pepper Hamilton to produce everything responsive to discovery requests that Baylor does not have, or anything Baylor has not yet disclosed. The plaintiffs asked for those records back in March 2017.

However, by the April 11 deadline, Pepper Hamilton certified that the firm didn’t have any materials that Baylor doesn’t also possess, said the court’s June 7 order. The firm asked the court to reconsider or clarify the order for documents that Baylor had not yet disclosed, and raised three brand-new “untimely objections” to complying with discovery. The law firm now claims it shouldn’t have to release records that Baylor logged as privilege, anything dated after June 15, 2016, and records related to three “separate” legal matters that the firm worked on for Baylor.

Pitman wrote that by not raising these objections sooner, Pepper Hamilton waived the opportunity to object. It also seems that the firm is trying to create delay.

Pitman wrote that he’s inclined to sanction Pepper Hamilton for multiple discovery abuses over two years, including violating the court order.

“This violation 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,” Pitman wrote.

But the court will give the firm a chance at a June 17 hearing to show good cause that it shouldn’t face sanctions.

Pitman wrote that he has continuing concerns about Baylor’s compliance with discovery orders.

Baylor had certified in September 2018 that it had completed production, but then in April, Pepper Hamilton told the court that Baylor had discovered a few hundred more documents. The plaintiffs informed the court that since then, the university has given up more than 3,500 new documents.

“Neither Baylor nor Pepper Hamilton have adequately explained when, how or why these documents were suddenly discovered,” the court wrote. “The record suggests that Baylor may have withheld court-ordered production.”

The court ordered Baylor at the hearing to address the court’s concerns that it should have disclosed the other matters that Pepper Hamilton worked on back in 2017, and that it keeps making “eleventh-hour” disclosures, making the case longer, more burdensome and expensive.

The court noted that it typically defers to a party’s privilege log, but that Baylor has had “repeated late discovery of material” and the court previously rejected some of Baylor’s claimed privileges. The court ordered the parties to a June 17 hearing to sort out the privilege issue, and also decided to “adopt a claw back procedure” for certain materials. Pepper Hamilton must give up everything that the court ordered it to disclose following the hearing.

“All the firm would be required to do is produce materials directly to plaintiffs, without any review or log. Baylor would bear the burden of reviewing the materials afterwards and completing a privilege log,” the order said. “Plaintiffs will scan and Bates label the materials and produce them to Baylor within five days. Baylor will have two weeks to notify plaintiffs which documents Baylor contends are privileged.”

Dunnam & Dunnam partner Jim Dunnam of Waco, who represents the plaintiffs, declined to comment.

Thompson & Horton partner Lisa Ann Brown of Houston, who represents Baylor, and Cobb Martinez Woodward partner William Cobb Jr., who represents Pepper Hamilton, each didn’t return a call seeking comment before deadline. Baylor spokesman Jason Cook declined to comment.

Read the 37-page order.

 

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