Baylor Univ. in Major Privilege Battle over Law Firm’s Investigation Documents Reply

A significant privilege affray is unfolding over Baylor University’s retention of the Pepper Hamilton law firm to investigate Baylor’s handling of sexual-assault complaints.

The question before the USDC in Waco is whether the attorney–client privilege protects from discovery Pepper Hamilton’s witness interviews and documents reviewed. The court’s upcoming decision may offer important lessons to organizations conducting internal investigations, including how to handle a post-investigation release of information.

You will recall that, following Pepper Hamilton’s investigation, Baylor fired its football coach, Art Briles, and demoted its president, Judge Kenneth Starr.  And while Pepper Hamilton prepared a list of “Recommendations,” available here, it did not deliver a formal written report of its investigation.  You may read more about the so-called “lack of a paper trail” in this New York Times article.

The plaintiffs in Jane Doe v. Baylor University, No. 6:16-cv-173-RP-JCM (USDC WD Tex.), a Title IX case, filed a motion to compel Baylor to “produce all materials provided to or produced by Pepper Hamilton.”  In essence, the plaintiffs seek a ruling that the attorney–client privilege does not protect the law firm’s investigation materials, and assert two arguments in support. More…

In-House Counsel Fails to Prove Privilege, Loses Quest to Seal Emails & Notes

Situations arise where a party files privileged communications to support a dispositive motion.  But filing privileged documents raises waiver concerns, so the filing party seeks to seal those documents to prevent third-party access.  The question arises whether policies underlying the attorney–client privilege overcome citizens’ common-law and First Amendment rights of access to publicly filed documents.

In Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 2017 WL 1653608 (NDNY Apr. 26, 2017), available here, the USDC NDNY indicated that the privilege is a “higher value” that may rebut the common-law and FA presumption of access.  So, the court sealed the privileged communications, right? More…

Penn. Adopts Garner Privilege Exception for Shareholder Derivative Actions

A common yet often unresolved question in shareholder derivative actions is whether the company may assert the attorney–client privilege against its own plaintiff–shareholders.  Under federal law, the leading case is Garner v. Wolfinbarger, 430 F.2d 1093 (CA5 1970), where the 5th Circuit created a privilege exception if the shareholders could show good cause for not invoking it.

Now, Pennsylvania has adopted the Garner exception, holding that trial courts should evaluate certain criteria to determine whether “good cause” exists to not apply the attorney–client privilege to plaintiffs in derivative actions.  Pittsburgh History & Landmark Found., 2017 WL 1422894 (Pa. Commonw. Ct. Apr. 21, 2017).  You may read the decision here. More…