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

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…

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

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…

MPR: Falwell, Jr., Uber, and a Personal Lawyer for Trump?

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for May 2017.

  • Remember the internal investigation into Baylor University’s sexual assault scandal? A former Baylor student pursuing Title IX claims against the university sought the deposition of Jerry Falwell, Jr. because Baylor’s Regents told Falwell “everything the investigating law firm had to say about what happened.”  The student argued privilege waiver for the investigation results, but the court tabled Falwell’s deposition for now, but may allow it later.  Stay tuned to this developing issue, and read the current opinion here.
  • In the pending trade-secrets case where Waymo alleges that Uber stole its technology to develop self-driving vehicles, there is a brewing privilege battle over Uber’s due diligence document associated with its acquisition of Otto, the self-driving truck start-up.  Read BuzzFeed’s story here.
  • The Fifth Circuit issued an instructive opinion regarding the adequacy of privilege logs and the necessity of trial courts conducting in camera reviews. Read the Bloomberg BNA’s article on the decision, which quotes yours truly, here.
  • To secure attorney-client privilege protection, does President Trump need a personal lawyer for the investigation into his campaign’s ties to Russia, or may he claim privilege over his discussions with lawyers in the office of Counsel to the President?  This article and this one discuss the issue.
  • The Indiana Supreme Court refused to review a lower court ruling that the attorney-client privilege protects former Governor and now VP Mike Pence’s emails from disclosure under a public-records request.  Story here.
  • A UK court recently permitted the country’s Serious Fraud Office to breach the attorney-client privilege and obtain access to a company’s internal investigation.  Interesting ruling that the company will appeal.  Story here.
  • South Dakota’s Attorney General is compelling a journalist to testify about her observations on tour of a local Tribe’s marijuana fields. Is that permissible, or does the journalist privilege prevent this?  Read the story here.
  • Shook Hardy & Bacon LLP published a blog post, available here, discussing a recent California decision applying the work-product doctrine to a forensic firm’s report following a data-breach investigation.