Baylor seeks limits in discovery in Jane Doe lawsuit

(Baylor University photo/file)
(Baylor University photo/file)(KWTX)
Published: Aug. 24, 2018 at 12:26 PM CDT
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In a 135-page filing late Friday afternoon, attorneys for Baylor University asked a federal judge to set limits on discovery in a lawsuit filed on behalf of 10 Jane Doe plaintiffs who allege they were sexually assaulted and that the school was indifferent to the assaults.

“Plaintiffs’ discovery requests in this litigation have strayed far afield from the ten plaintiffs’ claims and have become oppressive and excessive,” the motion says.

“Plaintiffs’ counsel’s on-going discovery activities demonstrate an intent to conduct what has become a no-holds-barred investigation of Baylor University that is aimed, apparently, at exploring real or imagined divisions among regents, alumni, and other individuals interested in the operation of Baylor University,” the motion says.

“The proper focus is the handling of student sexual assault claims reported between September 2003 and February 2016,” the motion says.

The motion says attorneys for the Jane Doe plaintiffs have disclosed they may seek testimony from 45 current and former regents and 15 alumni who are members of “Bears for Leadership Reform,” a group that has demanded more transparency from the university.

“None of these 60 individuals is described as having personal knowledge of the handling of student sexual assaults,” the motion says.

Baylor is seeking an order that prohibits discovery into nearly a dozen areas that it argues “are irrelevant and not proportional to the needs of the case” including disputes among regents and/or administrators relating to university operations, and financial conflicts of interest and investment matters pertaining to the Board of Regents.

Also the regents management of the Pepper Hamilton investigation in May 2016, employment decisions regents made after the investigation, negotiations with employees who were fired or left Baylor after the investigation, the particulars of how the 13-page Findings of Fact were drafted after the investigation, the schools implementation of Pepper Hamilton’s recommendations, the regents’ decision to reaffirm the investigation and its findings in the fall of 2016, student sexual assaults reported after February 2016, the religious beliefs of witnesses and communications with PR firms related to anticipated or pending litigation.

Baylor maintains in the motion that discovery more appropriately should be concentrated on how the university handled the Jane Doe plaintiff’s complaints, how the school handled other sexual assault claims from September 2003 to February 2016, university policies training and education efforts, and support services pertaining to the handling of sexual assault allegations in place during that period, data on the number of sexual assaults reported, and the engagement of consultant Margolis Healy in 2014 to provide guidance on Title IX.

The motion was filed a day after attorneys for the Jane Doe plaintiffs, Jim Dunnam of Waco and Chad W. Dunn of Houston, asked a judge to compel the university to release “key documents” that were turned over to Pepper Hamilton investigators in 2016 “without Baylor itself having to spend millions of dollars and multiple hours of review.”

“Baylor seeks reprieve from its discovery obligations based on its own discovery obstruction,” the motion filed Thursday says.

An email attached to the filing reveals that Baylor spent at least $4.2 million on the independent investigation that led to the May 2016 decision to fire head football coach Art Briles, reassign Chancellor and President Ken Starr and suspend athletic director Ian McCaw.

Briles, McCaw and Starr have severed all ties with the university.

McCaw is now athletic director at Liberty University in Lynchburg, Va.

Briles has accepted a job as the head coach of an American football team in Italy.

Baylor University Regents announced on Sept. 2, 2015 that they had hired the Philadelphia law firm Pepper Hamilton LLP “to conduct a thorough and independent external investigation into the university’s handling of cases of alleged sexual violence.”

Starr had called for an internal inquiry on Aug. 21, 2015 after a Waco jury decided on probation for former football player Sam Ukwuachu, who was convicted of raping a female athlete.

On Aug. 28 he announced that he was recommending that regents authorize the outside counsel and called for zero tolerance for sexual violence.

Eight months after the Sept. 2, 2015 announcement, the firm briefed regents on the findings of the investigation led by partners Gina Maisto Smith and Leslie Gomez.

The email attached to a filing by plaintiffs in a Jane Doe sexual assault lawsuit against the university was sent on Oct. 27, 2016 to Regent Philip Stewart who had requested an estimate of the cost of the investigation from Baylor General Counsel Christopher Holmes.

“Hamilton fees and expenses to date are approximately $4.2 million,” Holmes said in the brief reply.

Stewart was deposed this week, and his testimony “was very damaging to Baylor,” a footnote to the filing says.

The motions are just the latest salvos in an ongoing battle over what information the university is obligated to provide to the plaintiffs’ attorneys.