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Baylor Must Produce Pepper Hamilton Papers in Sex Assault Suit

June 3, 2020, 6:43 PM

Baylor University must turn over a trove of documents and recordings prepared by Pepper Hamilton LLP in the course of the firm’s independent investigation into the school’s handling of sexual assault allegations, the U.S. District Court for the Western District of Texas ruled.

The order, issued Tuesday by Magistrate Judge Andrew W. Austin, is a victory for about a dozen Jane Doe plaintiffs who challenged the school’s policies and response to their reports of sexual assault on campus.

The judge rejected Baylor’s attempt to use the attorney work product doctrine to avoid turning over many of the disputed documents, saying the school’s defense depends heavily on work the firm did in assessing the school’s policies and recommending new ones.

This case “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 said. “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.”

It’s therefore “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,” he said.

Austin’s ruling, which comes two years after the case largely survived Baylor’s motion to dismiss, requires the school to turn over a slew of materials, including witness interviews, presentation materials, search terms, draft reports, and communications between the firm and the school. This includes any communications that could show whether Baylor attempted to influence the substance of Pepper Hamilton’s report or recommendations, Austin said.

Austin also scolded the school for repeatedly using Pepper Hamilton’s work to defend itself, and then, in an effort to keep the firm’s work secret, changing course and trying to block all witnesses from mentioning the firm at trial.

Baylor’s proposal “would require witnesses to testify in half truths in order to pretend that Baylor conducted its own investigation and originated its own policy reforms,” Austin said. “Baylor is effectively asking its witnesses to lie.”

Austin warned the school he’d impose sanctions if it didn’t comply with this order.

The plaintiffs are represented by Brazil & Dunn; Dunnam & Dunnam LLP; and Sommerman, McCaffity, Quesada & Geisler LLP. Baylor is represented by Weisbart Springer Hayes LLP and Thompson & Horton LLP.

The case is Doe 1 v. Baylor Univ., 2020 BL 204515, W.D. Tex., No. 6:16-cv-00173, 6/2/20.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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