Baylor University is involved in five Title IX lawsuits over its alleged failure to properly investigate and respond to sexual violence involving some of its students. As part of the lawsuits, the individuals suing Baylor have requested all the materials provided to and produced by Pepper Hamilton. Baylor has yet to provide the other side with Pepper Hamilton’s report, their investigation notes, recordings of interviews, or any other documents related to investigation.
On July 11, 2017, a Federal Judge ruled that Baylor University must turn over some documents that it has been withholding from the opposing party. The Court’s Order separates the Pepper Hamilton investigation material into two different categories: 1) materials provided to Pepper Hamilton; and 2) materials produced by Pepper Hamilton in connection with its investigation.
Baylor argued that the documents were protected by the Attorney-Client Privilege and the work product privilege. The attorney client privilege allows for a client (Baylor University) to refuse to disclose confidential communications between the client and the attorney. The work product privilege allows a party to withhold documents that show the thought process or trial strategy of an attorney or a client.
The Court’s Order finds that Baylor University waived its privilege relating to Attorney-Client communications. Because the privilege is waived, the Court ordered Baylor to produce all materials, communications, and information provided TO Pepper Hamilton as part of the investigation. This means that if Baylor has any interview recordings, or documents, which it gave to Pepper Hamilton to assist in its investigation, Baylor must now give those documents to the other side.
However, the Court’s Order finds that the work product privilege was not waived. This means that any documents created by attorneys (including Pepper Hamilton) or client (Baylor University) do not need to provided to the other side. This likely includes the Pepper Hamilton Report, interview notes, summaries, timelines, chronologies, or any other document that summarizes the evidence.
It is also important to note that the Court’s Order states that any documents Baylor gives to the other side will be labeled as confidential. This means that the public will not have access to any of these recordings, communications, or documents until after the trial is finished.