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.