UT law professor makes recommendations aimed at helping Baylor University, sex assault victims settle pretrial disputes

Some lawsuits have been pending six years
Baylor University (File Photo)
Baylor University (File Photo)((Source: KWTX))
Published: Nov. 1, 2022 at 5:34 PM CDT
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WACO, Texas (KWTX) - A University of Texas law school professor appointed to help Baylor University and 15 sexual assault victims settle longtime pretrial disputes has made recommendations to the presiding judge that could bring the lingering cases closer to resolution or to trial dates.

Some of the lawsuits have been pending six years as Baylor continues to defend its handling of sexual assault allegations and Title IX complaints that sparked a major scandal and led to the ouster of former football coach Art Briles and the removal of former President Ken Starr.

Six years later, Baylor continues to argue that some of the work by Philadelphia law firm Pepper Hamilton to assist Baylor’s response to the fallout from the sexual assault scandal should not be disclosed to the plaintiffs, despite a court sanction of the law firm and several court rulings to the contrary.

In a 47-page report from Andrew MacRae, appointed special master in June by U.S. District Judge Robert Pitman to oversee the ongoing discovery battles, the law professor recommends that the parties go to mediation again and to develop a “discovery control plan.”

An initial mediation several years ago failed to resolve the lawsuits.

MacRae also recommends that Pitman order Baylor to turn over “the entire Pepper Hamilton universe” to the plaintiffs and to develop a broad definition of what that “universe” entails to avoid further disputes over production. He suggests the documents be maintained as “confidential” for now and recommends that a “claw back” order be instituted to permit Baylor to identify Pepper Hamilton documents it contends should not be subject to discovery and returned to the university.

Pitman, former U.S. Magistrate Andrew Austin, and now MacRae, have been openly critical of how Baylor has handled the discovery process, chiding Baylor for dragging its feet, failing to comply with or feigning misunderstanding of court orders and unnecessarily prolonging the litigation.

Austin, who has since retired, noted that Baylor, in arguing the documents should not be disclosed because of confidentiality concerns, work-product or attorney-client privilege, “has been as aggressive as any party the Court has encountered,” MacRae noted in his report.

“It is evident that plaintiffs do not have confidence in Baylor’s production…” MacRae wrote. “Neither does the Special Master, and therefore, nor should the Court.”

Pitman has not ruled on MacRae’s report and recommendation, which was issued Friday.

Waco attorney Jim Dunnam, who represents the plaintiffs with Houston attorney Chad Dunn, said he is optimistic about MacRae’s recommendations.

“As we’ve said from the beginning, we need the truth and accountability,” Dunnam said Tuesday. “That’s what the civil justice system is for.  At this point, Baylor has spent tens of millions in resources to hide the truth, and that speaks volumes. We are one step closer to the day in court for these brave young Baylor women, and that cannot come soon enough.”

Baylor responded to MacRae’s report in a statement released Tuesday.

“Baylor remains steadfast in working to bring this matter to trial, while continuing to protect the privacy of individuals who are not involved in this lawsuit in any way. We look forward to the opportunity to present evidence to the Court regarding the claims and defenses in the case, and, ultimately, reach an expeditious conclusion.”

MacRae wrote in his analysis of the discovery battle that “on its face, this is a simple, single-issue dispute regarding entitlement to, and production of, materials generated and/or reviewed by a third-party.”

However, the dispute, MacRae says, is complicated by two issues – the sheer volume of the materials and the scope of the parties’ disagreement.

“During the limited time since the Special Master was appointed, the only issue the parties have been able to agree on is a briefing schedule,  and even then, not all the time,” MacRae wrote.

The plaintiffs contend that the number of documents produced show 7,854 Pepper Hamilton documents and 15,979 Baylor documents. Baylor contends that 9,746 Peper Hamilton work-product documents have been produced. The plaintiffs claim more than 1.3 million Pepper Hamilton documents have not been produced, while Baylor contends there are 5,406 Pepper Hamilton work-product documents that have not been produced, MacRae’s report states.

“Indeed, although the Court ordered that both sides and the Special Master would have access to ‘the entire universe of Pepper Hamilton documents that are in dispute,’ it was apparent from the parties’ position statements and the video conference call that there was no agreement between the parties even as to ‘the entire universe of Pepper Hamilton documents that are in dispute.’ In other words, ‘the entire universe of Pepper Hamilton documents that are in dispute’, is in dispute.”

Pitman made an initial ruling years ago that the work-product privilege applied to the Pepper Hamilton documents. However, MacRae suggests Pitman revisit his finding after revelations gleaned during the years of legal wrangling.

“The Special Master is not suggesting the Court clearly erred with its initial decision, but certainly the Court could conclude that the subsequent evidence is substantially different, and suggests the previous decision was based on incomplete and/or misleading evidence and may well work a manifest injustice.

‘Therefore, the Special Master recommends the Court reconsider its ruling that the work product arising out of the Pepper Hamilton investigation is protected from discovery,” MacRae wrote.

MacRae recommends that since the parties can’t agree on “every Pepper Hamilton document that has not been produced,” the entire Pepper Hamilton universe should be produced “to ensure access to the entire universe.”

MacRae notes that the production is limited to discovery and does not necessarily mean that all documents would be admissible at trial.

An example of the ongoing dispute, MacRae said, was Baylor’s assertion that a PowerPoint slide presentation that Pepper Hamilton prepared for  Baylor regents showing general campus attitudes toward sexual assault was privileged work product. According to plaintiffs, it was produced to them on Oct. 7, 2021.

According to MacRae, a PowerPoint slide shared with a client is not protected attorney work product. Pitman ruled that privilege was waived on Aug. 11, 2017.

“Accordingly, that document should have been produced shortly after Aug. 11, 2017, not more than four years later,” MacRae said.

As a result of the Pepper Hamilton report, the Baylor Board of Regents said there was a “fundamental failure” by school officials to properly implement Title IX policies. They recommended a myriad of improvements to policies and procedures, which Baylor officials say have been implemented.