UT law professor makes recommendations aimed at helping Baylor University and sexual assault victims settle pre-trial disputes

WACO, TX (KWTX) – A University of Texas Law School professor appointed to help Baylor University and 15 sexual assault victims resolve longstanding pretrial disputes has made recommendations to the presiding judge that could bring the cases closer together. stay of resolution or trial dates.

Some of the lawsuits have been ongoing for 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 ousting of former soccer coach Art Briles and the removal of former President Ken Starr.

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

In a 47-page report by Andrew MacRae, appointed special master in June by U.S. District Judge Robert Pitman to oversee ongoing discovery battles, the law professor recommends the parties resume mediation and craft 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 plaintiffs and develop a broad definition of what that “universe” entails to avoid further disputes over production. He suggests that the documents be kept “confidential” for now and recommends that a “retrieval” order be instituted to allow Baylor to identify Pepper Hamilton documents that he says should not be discovered and sent back to university.

Pitman, former U.S. magistrate Andrew Austin, and now MacRae have openly criticized Baylor’s handling of the discovery process, accusing Baylor of dragging its feet, failing to comply, or feigning misunderstanding of the orders court and unnecessarily prolong the litigation.

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

“It is apparent that the plaintiffs have no confidence in Baylor’s production…” MacRae wrote. “Neither did the Special Master, and therefore neither should the Court.”

Pitman did not comment on MacRae’s report and recommendation, which was released Friday.

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

“As we’ve said from the start, we need truth and accountability,” Dunnam said Tuesday. “That’s what the civil justice system is for. At this point, Baylor has spent tens of millions of resources hiding the truth, and that says a lot. We are one step closer to the day these brave young women from Baylor will be heard in court, and it cannot come soon enough. »

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

“Baylor remains committed to working to bring this matter to court, while continuing to protect the privacy of those who are in no way involved in this lawsuit. We look forward to the opportunity to present evidence to the Court regarding the claims and defenses in the case, and ultimately to reach a speedy conclusion.

MacRae wrote in his analysis of the Discovery Battle that “on its face, this is a simple, single-issue dispute over the right 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 documents and the extent of the parties’ disagreement.

“In the limited time that has elapsed since the appointment of the Special Master, the only issue the parties have been able to agree on is a briefing schedule, and even then, not all of the time,” MacRae wrote.

Plaintiffs claim that the number of documents produced shows 7,854 Pepper Hamilton documents and 15,979 Baylor documents. Baylor claims that 9,746 documents of Peper Hamilton’s work products were produced. Plaintiffs say more than 1.3 million Pepper Hamilton documents were not produced, while Baylor claims there are 5,406 Pepper Hamilton work product documents that were not produced, the report says. by MacRae.

“Indeed, although the Court ordered that both parties and the Special Master have access to ‘the entire universe of Pepper Hamilton documents that are in dispute,’ it was apparent from the parties’ position statements and the videoconference that ‘there was no agreement between the parties, even on “the set 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 issued an early ruling years ago that the work product privilege applied to Pepper Hamilton’s documents. However, MacRae suggests that Pitman reconsider his conclusion after revelations gleaned from years of legal wrangling.

“The Special Master does not suggest that the Court clearly erred in its original decision, but the Court could certainly conclude that the later evidence is materially different, and suggests that the previous decision was based on incomplete and/or misleading evidence. and could well work out a manifest injustice.

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

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

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

According to MacRae, a PowerPoint slide shared with a client is not a protected attorney’s work product. Pitman ruled that the lien was lifted on August 11, 2017.

“As a result, this document should have been produced shortly after August 11, 2017, no more than four years later,” MacRae said.

Following 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.

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