Pepper Hamilton sanctioned for withholding materials in Jane Doe suits

(Baylor University photo/file)
(Baylor University photo/file)(KWTX)
Published: Jun. 21, 2019 at 4:52 PM CDT
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U.S. District Judge Robert Pitman Friday sanctioned the Pepper Hamilton law firm for failure to comply with court orders and subpoenas in Jane Doe sexual lawsuits against the university, saying “The evidence of Pepper Hamilton’s conduct in violation of the Court’s orders is so ‘clear, direct, weighty and convincing’ that the court reaches this conclusion with clear conviction and without hesitancy.”

He ordered the firm to pay all of the plaintiff’s “reasonable expenses in making their Amended Motion to Compel and Motion for Sanctions, including attorney’s fees.”

Pitman did not sanction Baylor’s attorneys, but cautioned “that even inadvertent violation of a discovery order is eligible for sanctions and the court will consider sanctions if Baylor makes further production of Pepper Hamilton materials without adequate explanation.”

In March Pitman ordered the law firm to turn over thousands of documents related to the investigation by April 11 in what Jim Dunnam of Waco, who represents 13 Jane Doe plaintiffs in suits against the university, called a “monster step forward in revealing the truth.”

The order came just more than two years after Dunnam and Chad Dunn of Houston filed a subpoena seeking documents or records or communications relating to Pepper Hamilton’s work for Baylor beginning in 2015 including all information obtained from the Advocacy Center of Waco; all information obtained from the McLennan County District Attorney’s Office; all information obtained from Waco Police Department; all information obtained from the Baylor Police Department; all information obtained from the McLennan County Sheriff’s Department; all information obtained from Cenikor; all information obtained from Baylor University and all information obtained from any other third party.

Pepper Hamilton reviewed more than a million pieces of evidence including documents, data, and interview lists, but produced only a 13-page Findings of Fact that didn’t identify any specific cases or cite any individuals by name.

Friday’s order allows Pepper Hamilton and Baylor to withhold materials dated from June 15, 2016 to Nov. 6 2017 including “Other Matters” that the law firm worked on in addition to the investigation of the school’s handling of sexual assaults.

But the order denies Baylor’s effort to block the Jane Doe plaintiffs from “seeking discovery of any communications or documents in connection with the Other Legal matters from Baylor or any third party, including Pepper Hamilton.”

Pitman ordered the parties in the case to select a third party vendor to manage production of the new materials and to do so no later than June 28.

“Pepper Hamilton is ordered to produce all materials responsive to the subpoena in its custody and control that were dated, created or received between January 1, 2003 and November 6, 2017, to the designated third part vendor immediately upon the parties’ notification to the court that a vendor has been hired.”

“Baylor and Pepper Hamilton shall bear the cost of the vendor, by whatever distribution they find appropriate.”

After hearing the scathing Pepper Hamilton report, the school’s board of regents voted on May 26, 2016 to fire head football coach Art Briles, reassign Chancellor and President Ken Starr and suspend athletic director Ian McCaw.

Baylor and Pepper Hamilton have long maintained that the law firm presented its findings orally and did not prepare a written report.

But in a June 7, order, Pitman wrote, “Pepper Hamilton’s emails and billing entries strongly indicate that there was, in fact, a Pepper Hamilton investigation report. Emails between Pepper Hamilton counsel Leslie Gomez and Gina Maisto Smith on May 21, 2016, discussed ‘drafts of the overall findings and recommendations’ and “the narrative of the findings and recommendations.’”

“If such a report does exist, this presents additional discovery compliance issues.”

But during a June 17 hearing, Pitman wrote in Friday’s order, “Baylor proffered statements by a Pepper Hamilton attorney who testified that they refer to internal attorney work product.”

“If plaintiffs have remaining concerns about this issue, they may raise that with the court,” the order says.

A lengthy KWTX investigation revealed that the law firm fumbled in its investigation, according to university insiders and secret recordings of meetings with athletic staffers obtained by KWTX, which suggest that the firm’s investigators came to Waco with an agenda to purge members of the football program and had a racial undertone in their line of questioning.

KWTX first reported, and the board later confirmed that no Baylor football players were interviewed in the months-long investigation.