Sweeping Privilege Loss—Baylor Must Produce Documents From Sexual-Assault Investigation Reply

In a significant ruling that may exacerbate the continuing fallout from Baylor University’s sexual-assault scandal—and provide lessons for those conducting internal investigations—the USDC WDTX rejected Baylor’s “unsupported and unconvincing” privilege argument and ordered it to produce “all materials, communications, and information” provided to its investigating law firm.

The court held that Baylor’s intentional release of the law firm’s factual findings and recommendations necessarily disclosed attorney–client communications and constituted privilege waiver.  Doe v. Baylor Univ., No. 16–CV–173–RP (W.D. Tex. Aug. 11, 2017).  You may read the opinion here.

The Huddle

In an earlier post titled Baylor Univ. in Major Battle over Law Firm’s Investigation Documents, I set the stage for the Title IX plaintiffs’ motion to compel Baylor to produce documents provided to Pepper Hamilton, which it retained to conduct an “independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues.” More…

Court Rejects Joint–Prosecution Privilege Between Company and USAO

As in-house counsel or outside corporate counsel, how would you handle this situation?  Two employees download your corporate client’s proprietary information about Product X, join a competitor, and—surprise—a similar Product X from the competitor hits the market just a few months later.

Your client conducts a forensic investigation and discovers irrefutable evidence of the employees’ theft.  Sure, you may file a civil action for trade-secrets misappropriation, but your client wants the employees criminally prosecuted.

Should you disclose the investigator’s report to the U.S. Attorney’s Office to aid the prosecution? Would that limited disclosure result in privilege waiver in the parallel civil case?  Isn’t there some type of privilege-sharing doctrine, such as a so-called joint–prosecution privilege, or even the common–interest doctrine that would prevent privilege waiver? More…

GC Forwards Outside Counsel’s Email to PR Consultant—Waives Privilege

In-House lawyers often assemble a team of specialists to handle knotty disputes that have the potential to spiral out of control.  The team almost certainly includes outside counsel, but also forensic investigators, accountants, other consulting experts, or public-relations professionals.

As the dispute evolves, email communications among this team increase.  And even where the emails involve in-house and outside counsel, the potential for privilege waiver also increases. In a long-running dispute involving the business of healthcare, a recent court decision illustrates the corporate attorney–client privilege’s fragility when a team’s lawyers share legal advice with the team’s non-lawyers. More…