Doe 1 et al v. Baylor University
ORDER GRANTING IN PART AND DENYING IN PART 93 Motion to Compel. Signed by Judge Robert Pitman. (jgb)
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JANE DOE 1, JANE DOE 2,
JANE DOE 3, JANE DOE 4,
JANE DOE 5, JANE DOE 6,
JANE DOE 7, JANE DOE 8,
JANE DOE 9, and
JANE DOE 10,
Before the Court are Plaintiffs’ Motion to Compel Production of Pepper Hamilton
Materials, (Dkt. 93); Defendant’s Response, (Dkt. 104); and Plaintiffs’ Reply (Dkt. 106). The Court
held a hearing addressing this and other discovery-related motions on June 16, 2017. The parties also
submitted follow-up briefing after the hearing that addressed the motion. (Pls.’ Post-Hearing Br.,
Dkt. 117; Def.’s Resp., Dkt. 123). Based on these filings, the relevant law, the parties’ arguments,
and the record in this case, the Court issues the following order.
In September 2015, the Baylor University Board of Regents hired the law firm Pepper
Hamilton, LLP, “to conduct an independent and external review of Baylor University’s institutional
responses to Title IX and related compliance issues through the lens of specific cases.” (Pls.’ Mot.
Compel Ex. A, Dkt. 93-1, Client Engagement Letter). Baylor and Pepper Hamilton amended this
agreement in February 2016. (Pls.’ Mot. Compel Ex. B, Dkt. 93-2, Re: Engagement). The
amendment to the engagement letter explained:
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 2 of 21
Specifically, Pepper [Hamilton] has been engaged . . . to provide legal advice and
guidance to the University in connection with the independent and external review
[previously identified] and other matters related to the institutional response to
ongoing matters under Title IX . . . and related authority. It is the shared
understanding of Baylor University and Pepper [Hamilton] that all material prepared
and communications made by Baylor University, Pepper [Hamilton], and their
representatives in the course of the review are in anticipation of litigation and are
privileged work product.
(Id.). Other than clarifying that Pepper Hamilton was hired to provide legal services, the amendment
left the original engagement agreement unchanged. (Id.).
In May 2016, a few months after this amendment, Baylor released two documents
summarizing the results of the Pepper Hamilton investigation, a thirteen-page summary of the
investigation and its conclusions entitled “Findings of Fact,” and another ten-page list of
recommendations titled “Report of External and Independent Review, Recommendations.” (Pls.’
Mot. Compel Ex. C, Dkt. 93-3, Findings of Fact; Pls.’ Mot. Compel Ex. D, Dkt. 93-4, Report of
External and Independent Review). This suit was filed soon after the release of these summaries, in
June 2016. (Compl., Dkt. 1).
Plaintiffs seek production of materials provided to and produced by Pepper Hamilton in
connection with the investigation. 1 Defendant Baylor University objects to the production of all
materials on the bases of attorney-client privilege and work-product privilege. Plaintiffs make two
primary arguments in an attempt to overcome Baylor’s claims of privilege. First, Plaintiffs argue that
the materials are not subject to the attorney-client privilege or work-product privilege because
Pepper Hamilton was not providing legal services in anticipation of litigation, but conducting an
external investigation to deal with a public relations scandal. Second, Plaintiffs argue that Baylor
waived any privilege by making numerous public disclosures regarding the investigation. Finally,
Plaintiffs made several document production requests relating to the Pepper Hamilton investigation. (See Pls.’ Mot.
Compel Ex. A, Dkt. 94-1, ¶¶ 9–19). Because the parties have generally not addressed specific requests in their briefing,
the Court addresses the subject matter of these requests as a whole.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 3 of 21
Plaintiffs argue that even if a privilege applies to some or all of Baylor’s communications with
Pepper Hamilton, Baylor should not be allowed to use a categorical privilege log.
II. LEGAL STANDARD
Discovery is outside the scope permitted by the Federal Rules of Civil Procedure if the
discovery sought is (1) privileged; (2) not relevant to any party’s claims or defense; or (3) not
“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If the Court finds that the
discovery request seeks privileged material, the Court may issue a protective order. See Fed. R. Civ.
P. 26(c). Furthermore, it is well established that “[m]atters relating to discovery are committed to the
discretion of the trial court.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 347 (5th Cir.
Here, there are two “distinct” privileges at issue—the attorney-client privilege and the workproduct privilege. See United States v. Nobles, 422 U.S. 225, 238 n.11 (1975); see also Shields v. Sturm,
Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (“The work product privilege is very different from
the attorney-client privilege.”). The Court will first address the applicability of the broader privilege,
the attorney-client privilege, and then turn to address the applicability of the work-product privilege.
A. Attorney-Client Privilege
First, Plaintiffs argue that because Pepper Hamilton was hired to conduct an external
investigation, Baylor’s communications with Pepper Hamilton regarding that investigation are not
privileged. Second, Plaintiffs argue that any privilege materials related to the investigation may be
entitled to have been waived by repeated public disclosures regarding the investigation. Defendant
disputes both of these arguments.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 4 of 21
1. Application of Attorney-Client Privilege
The attorney-client privilege exists to “encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of law
and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). This privilege
“rests on the need for the advocate and counselor to know all that relates to the client’s reasons for
seeking representation if the professional mission is to be carried out.” Id. (quoting Trammel v. United
States, 445 U.S. 40, 51 (1980)). While the attorney-client privilege extends to all situations in which
counsel is sought on a legal matter, it protects “only those disclosures necessary to obtain informed
legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S.
391, 403 (1976). In other words, the communication must be made “in confidence for the purpose
of obtaining legal advice from the lawyer” to fall within the scope of the privilege. United States v. El
Paso Co., 682 F.2d 530, 538 (5th Cir. 1982); see also United States v. Robinson, 121 F.3d 971, 974 (5th
Cir. 1997) (“The party asserting that communication is protected by the privilege must prove: (1)
that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary
purpose of securing a legal opinion or legal services, or assistance in some legal proceeding.”).
“Hence, the privilege does not protect documents and other communications simply because they
result from an attorney-client relationship.” S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex.
2009). “Moreover, courts generally construe the privilege narrowly because ‘assertion of privileges
inhibits the search for truth.’” Id. (citing Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477
(N.D. Tex. 2004)).
“A party asserting a privilege exemption from discovery bears the burden of demonstrating
its applicability.” In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001). “A general allegation of
privilege is insufficient to meet this burden.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467,
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 5 of 21
473 (N.D. Tex. 2004). Instead, “[t]he proponent must provide sufficient facts by way of detailed
affidavits or other evidence to enable the court to determine whether the privilege exists.” Id.
In this case, the evidence clearly demonstrates that Baylor was seeking legal advice when it
engaged Pepper Hamilton in September 2015. The initial engagement letter indicated that Pepper
Hamilton was hired “to conduct an independent and external review of Baylor University’s
institutional responses to Title IX and related compliance issues through the lens of specific cases.”
(Pls.’ Mot. to Compel Ex. A, Dkt. 93-1, Client Engagement Letter). Although the letter does not use
the phrases “legal advice,” “legal assistance,” or the like, there is no magic phrase that must be
included in an engagement letter to invoke the attorney-client privilege. The letter plainly indicates
that Baylor hired a law firm to review its compliance with federal law—in other words, to obtain
The other evidence submitted further supports this conclusion. While the amendment to the
engagement letter sought to clarify that Baylor was indeed seeking legal advice when it first engaged
Pepper Hamilton, it did not change the scope of the engagement or the work with which Pepper
Hamilton was tasked. (Pls.’ Mot. Compel Ex. B, Dkt. 93-2, Re: Engagement). This supports Baylor’s
argument that, at the outset, the university engaged Pepper Hamilton to obtain legal advice. (Id.).
Baylor also submitted a declaration from the individual working as its general counsel at the time
Pepper Hamilton was hired. (Def.’s Resp. Mot. Compel Ex. 1, Dkt. 104-2, Holmes Decl.). He
explains that “[t]he communications with Pepper Hamilton in connection with its investigation were
made for the purpose of facilitating the rendition of professional legal services for Baylor.” (Id. ¶ 4).
A declaration of one of the members of Baylor’s Board of Regents, an attorney at Haynes
and Boone, LLP, further explains the reasons the school engaged Pepper Hamilton. (Def.’s Resp.
Mot. Compel Ex. 2, Dkt. 104-3, Harper Decl.). The regent explains that he and another regent
worked with Baylor’s Office of General Counsel to recommend law firms “that had the expertise to
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 6 of 21
both conduct the needed factual investigation and advise the Board regarding potential liability
arising out of the University’s hand[l]ing of allegations of sexual assault and any other claims that
could ensure, such as Title IX litigation, employment related litigation, regulatory investigations, or
government enforcement proceedings.” (Id. ¶ 6). After a recommendation by Baylor’s president,
Pepper Hamilton was hired. (Id. ¶ 8).
Finally, an affidavit from one of the Pepper Hamilton attorneys who led the engagement
explains that “[c]ommunications between Pepper Hamilton and Baylor . . . [or] employees of Baylor
were for the purpose of facilitating Pepper Hamilton’s rendition of legal services to Baylor.” (Def.’s
Resp. Mot. Compel Ex. 3, Dkt. 104-4, Smith Aff. ¶ 6).
Plaintiffs argue that because Pepper Hamilton conducted an “independent investigation” for
Baylor, it was not providing “legal representation”—thus, the materials related to the investigation
are not privileged. As Baylor notes in response, this distinction has little support in the law. “The
research undertaken by an attorney to respond to a client’s request [for advice] also falls within the
reaches of the privilege.” Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999). One of the leading
U.S. Supreme Court cases on the attorney-client privilege, Upjohn Co. v. United States, 449 U.S. 383
(1981), addressed an “internal investigation” regarding possible unlawful bribes to foreign
governments. Plaintiffs attempt to distinguish the case by saying that the employees interviewed in
Upjohn were each told that the interviews were arranged so the firm could provide the company legal
advice. (Pls.’ Reply, Dkt. 106, at 2 (citing Upjohn, 449 U.S. at 394)). It is unclear from Upjohn,
however, that this detail is dispositive when determining the scope of the attorney-client privilege.
And in any case, a Pepper Hamilton attorney explained that “Baylor instructed its employees to
cooperate and communicate with Pepper Hamilton so that Pepper Hamilton could provide legal
services and advice to Baylor.” (Def.’s Resp. Mot. Compel Ex. 3, Dkt. 104, Smith Aff. ¶ 5). Plaintiffs
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 7 of 21
have therefore failed to distinguish this case from Upjohn and other cases involving internal
investigations where the attorney-client privilege has been recognized. 2
The attorney-client privilege is meant to encourage clients to obtain “fully informed legal
advice” that allows them to better understand their legal obligations, rather than cause clients to be
“reluctant to confide in [their] lawyer” because damaging information could be more easily obtained
afterward. See Fisher, 425 U.S. at 403–04. Here, the evidence shows Baylor sought advice from
Pepper Hamilton to better understand its legal obligations and liabilities—the exact sort of behavior
the privilege seeks to encourage. The communications between Baylor and Pepper Hamilton are
therefore subject to the attorney-client privilege.
2. Waiver of Attorney-Client Privilege
Plaintiffs argue that even if the communications at issue were at one time protected by the
attorney-client privilege, Baylor waived that protection when it repeatedly released findings and
conclusions made by Pepper Hamilton. The Court agrees.
Generally, “[d]isclosure of any significant portion of a confidential communication waives
the privilege as to the whole.” Nguyen, 197 F.3d at 208. “The confidentiality of a client’s
communications may be compromised either through the publication of evidence of the
communications themselves or through the publication of evidence of attorney statements or
documents that disclose the client’s confidential communications.” Indus. Clearinghouse, Inc. v. Browning
Mfg. Div. of Emerson Elec. Co., 953 F.2d 1004, 1007 (5th Cir. 1992). “When a party waives the
attorney-client privilege, it waives the privilege as to all communications that pertain to the same
subject matter of the waived communication.” S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 317 (N.D.
In support of their argument, Plaintiffs reference a Pennsylvania state court opinion concluding that materials related
to a Pepper Hamilton investigation into a child abuse scandal at Penn State University were not covered by the attorneyclient privilege. (See Pls.’ Reply, Dkt. 106, at 3). This opinion, while difficult to distinguish, is unpersuasive and has no
bearing on the appropriate outcome here.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 8 of 21
Plaintiffs argue that three disclosures by Baylor constituted waiver of the attorney-client
privilege. First, Plaintiffs argue that Baylor waived its attorney-client privilege when it released the
Findings of Fact and Recommendations in May 2016. Second, Plaintiffs point to disclosures made in
a filing by Baylor regents in Shillinglaw v. Baylor University, et al., No. DC-17-01225 (Dallas Cty. Dist.
Ct), where, for example, the regents quoted text message exchanges and paraphrased conversations
in which Baylor personnel discussed an alleged rape by a football player and a gang rape reported to
athletic staff. (Pls.’ Mot. Compel Ex. E, Dkt. 93-5, at 17, 20–24). The filing explains that all facts and
evidence discussed were revealed by Pepper Hamilton’s investigation. (Id. at 8–13) Third, Plaintiffs
argue that former Baylor regents were also briefed by Pepper Hamilton about details of the
investigation that have since been kept confidential. 3 (Pls.’ Reply Ex. A, Dkt. 106-1, Garland Dep.
These disclosures were intentional and together provide substantial detail about both what
Baylor and its employees told Pepper Hamilton and what advice Baylor received in return. After
carefully reviewing the documents disclosed, the Court finds that they are much more akin to those
made in cases where waiver was found, than those relied where no waiver was found. Compare
Nguyen, 197 F.3d at 207 & n.17 (finding waiver where deposition questions to executives “elicit[ed]
information about the substance of [attorney-client] communication, touching on the directions
given to counsel and the legal materials reviewed in addressing the question presented”); In re Kidder
Peabody Sec. Litig., 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (finding waiver where an “85–page report for
[a client] summarize[ed] in detail the facts uncovered by the law firm in the course of its
investigation”); with YETI Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL
8677303, at *1 (W.D. Tex. Dec. 30, 2016) (finding no waiver where a single email produced in
There remains a dispute about whether anyone who may properly be considered a third-party received the briefing. (See
Pls.’ Post-Hearing Br., Dkt. 117, at 6–7; Def.’s Resp., Dkt. 123, at 9–10). The Court concludes that it need not resolve
the dispute, as its decision would be the same absent this alleged disclosure.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 9 of 21
discovery stated that “[w]e believe and our attorney has confirmed that we are not infringing”); Nat’l
W. Life Ins. Co. v. W. Nat’l. Life Ins. Co., No. A-09-CA-711 LY, 2010 WL 5174366, at *7 (W.D. Tex.
Dec. 13, 2010) (finding no waiver where “communications merely note that they have sought advice
from their attorneys . . . regarding [a] name change” and “do not disclose the confidential advice and
the opinions of their legal counsel”).
The Court will, however, address Baylor’s arguments that (1) it released only underlying
facts, not confidential communications; (2) it released only generic statements about consulting with
counsel; (3) it is not simultaneously using the attorney-client communications to defend itself and
preventing their complete disclosure; and (4) that even if waiver of the attorney-client privilege is
found, the scope of the waiver should be restricted to the released documents.
a. Previously Confidential Communications Were Disclosed by the Findings of Fact and Recommendations
Baylor argues that waiver results only from revealing confidential communications, not
underlying facts, and asserts that the Findings of Fact and Shillinglaw answer do not reveal the
communications themselves. The documents themselves contradict this argument. The Findings of
Fact reveal that all findings were the result of Pepper Hamilton’s investigation—a “detailed,
thorough and rigorous” investigation based on “unfettered access to personnel and data.” (Pls.’ Mot.
Compel Ex. C, Dkt. 93-3, Findings of Fact at 1–3). Contrary to Baylor’s assertion, this connection
between Pepper Hamilton and the thirteen pages of findings “reveals” what facts Baylor provided to
Pepper Hamilton, not just the underlying facts themselves. In other words, the Findings of Fact are
a “publication of evidence of the communications.” Indus. Clearinghouse, Inc., 953 F.2d at 1007. The
exact contents of the communications need not be revealed to constitute waiver. See, e.g., In re Kidder,
168 F.R.D. at 468 (finding waiver of the attorney-client privilege where a report made a factual
summary and paraphrased interviews conducted by attorneys); Nguyen v, 197 F.3d at 207 (affirming a
district court’s finding of waiver where executives recounted communications with attorneys in
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 10 of 21
depositions). Similarly, in Shillinglaw, the answer explains that the Pepper Hamilton investigation
uncovered the detailed evidence discussed in the answer—again, revealing what was communicated
by Baylor and its personnel to Pepper Hamilton. (Pls.’ Mot. Compel Ex. E, Dkt. 93-5).
Relatedly, Baylor argues that because the Findings of Fact and Recommendations were
drafted for the express purpose of public release, they can reveal no confidential communications.
This argument is both unconvincing and unsupported by case law. 4 Baylor chose to publicly release
a detailed summary of Pepper Hamilton’s investigation that disclosed, among other things, attorneyclient communications. While the information contained in these summaries was previously
confidential, Baylor’s decision to prepare and release a summary of those communications indicates
its intentional waiver of that confidentiality. The logical extension of Baylor’s argument is that the
creation and public release of any document discussing attorney-client communications, no matter
how detailed or self-serving, would not constitute waiver. That cannot be the case.
b. The Disclosures at Issue Were Not Generic Statements About Consulting with Counsel
Next, Baylor argues that generic statements about consulting with an attorney do not
constitute waiver. But generic statements are not at issue here. Instead, the thirteen pages of
Findings of Fact and ten pages of Recommendations purport to summarize the entire investigation
by Pepper Hamilton—both the information provided by Baylor and the factual and legal
In the first case Baylor cites in support of this argument, the Fifth Circuit determined that the corporation was either
not entitled to the attorney-client privilege for the documents at issue or had waived it. United States v. El Paso, 682 F.2d
530, 540 (5th Cir. 1982). In the case, the IRS sought, and the district court ordered, production of a “tax pool
analysis”—an analysis prepared for financial reporting purposes to ensure that a corporation sets aside on its balance
sheet a sufficient amount to cover contingent tax liability. Id. at 535. The corporation argued that the document was
subject to the attorney-client privilege because it was prepared by attorneys who were identifying potential soft spots in
the company’s tax return. Id. at 539. The documents were prepared with the knowledge that they would be shown to
independent accountants, who would then use the tax pool analysis to accurately portray the financial condition of the
company. Id. at 540–41. The Court concluded that because the tax pool analysis never had the expectation of
confidentiality and was shown to independent accountants, there was no privilege or privilege was waived. Id. The case
in no way supports Baylor’s contention that preparing a document summarizing otherwise confidential communications
prepared for public consumption does not waive privilege with respect to the underlying communications. The second
case raised by Baylor, YETI Coolers, LLC v. RTIC Coolers, LLC, 2016 WL 8677303, 1:15-cv-597-RP (W.D. Tex. Dec. 30,
2016), involved one phrase in an email between a company owner and his manufacturer. The court concluded that the
phrase only revealed a legal conclusion, not confidential attorney-client communications.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 11 of 21
conclusions that resulted from it. (See Pls.’ Post-Hearing Br. Ex. A, Dkt. 117-1, at 2 (quoting Baylor’s
statement that its interim president “would like to reiterate that the Findings of Fact fully reflect the
themes, core findings and failings identified in the investigation”)). In other words, the documents
summarize the complete course of previously confidential communications between Baylor and
Pepper Hamilton. The Findings of Fact document even connects several specific factual findings to
Pepper Hamilton. (Pls.’ Mot. Compel Ex. C, Dkt. 93-3, Findings of Fact at 1–3). As just one
example, the findings explain that Pepper Hamilton found instances of university administrators
“directly discouraging complainants from reporting or participating in student conduct process” and
that, in one instance, an administrator’s actions “constituted retaliation against a complainant for
reporting sexual assault.” (Pls.’ Mot. Compel Ex. C, Dkt. 93-3, Findings of Fact at 1–2). The
Shillinglaw answer includes even more specific details, going so far as to quote text messages and
conversations by Baylor personnel about reports of sexual assault and explain that these
conversations were uncovered by Pepper Hamilton in the course of its investigation. (Pls.’ Mot.
Compel Ex. E, Dkt. 93-5, at 13-14, 17-21). The Recommendations document then details over ten
pages of guidance and advice provided by legal counsel. (Pls.’ Mot. Compel Ex. D, Dkt. 93-4,
Report of External and Independent Review). These disclosures are far from a generic statement
that Baylor sought legal advice on Title IX compliance.
c. Baylor Has Sought to Use the Disclosures as Both a Sword and a Shield
Baylor also argues that waiver of attorney-client privilege only occurs when the privilege is
invoked as both a “sword” and a “shield” in litigation. See Willy v. Admin. Review Bd., 423 F.3d 483,
497 (5th Cir. 2005) (“[W]hen a party entitled to claim the attorney-client privilege uses confidential
information against his adversary (the sword), he implicitly waives its use protectively (the shield)
under that privilege.”). But this is only one form of waiver, sometimes called the “self-defense
exception to the attorney-client privilege.” Id.; see also 8 Fed. Prac. & Proc. Civ. § 2016.2 (3d ed.)
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 12 of 21
(describing “putting privileged material in issue” as one of several recurring situations involving
privilege waiver). Baylor’s argument that a party must invoke the attorney-client privilege as a
“sword” in litigation in order for waiver to exist is inaccurate. Instead, “‘[d]isclosure of any
significant portion of a confidential communication” is enough to “waive the privilege as to the
whole.’” Nguyen, 197 F.3d at 208.
For example, in Nguyen v. Excel Corp., the Fifth Circuit considered whether a district court
committed reversible error when it found waiver by the defendant due to its reliance on a good-faith
defense in an FLSA action. Id. at 205. The defendant argued that “it did not and never intended to
raise reliance-on-advice-of-counsel as support for its good faith defense.” Id. The Fifth Circuit
concluded that it need not adopt the district court’s position to affirm because “alternative grounds”
support waiver. Id. at 206. Specifically, the Court noted that the defendant’s executives had answered
questions in depositions about their communications with counsel. See id. 205–08 & n.17. The court
found that this supported waiver for two independent reasons. First, the privilege was waived when
the defendant failed to raise privilege objections in response to several questions regarding attorneyclient communications. Id. at 206–07. Second, the privilege was waived because the defendant
“selectively disclos[ed] confidential communications” to a third party. Id. at 207. Because the
defendant had otherwise waived privilege, the Fifth Circuit concluded that it did not matter whether
the defendant had put the privileged communications at issue—or used them as a sword—or not.
See id. (“We conclude that [the defendant] waived the attorney-client privilege by its own failures—
its failure to object and its failure to maintain the confidentiality of its communications.”).
It is thus unnecessary to determine whether Baylor put its privileged communications
directly at issue in the instant case. It is enough that the university selectively disclosed confidential
attorney-client communications publicly to warrant a finding that it waived the attorney-client
privilege with respect to those communications as a whole.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 13 of 21
As the above analysis makes clear, fairness is the critical consideration when evaluating
whether a party has waived the attorney-client privilege. 5 In considering fairness, the Court asks not
merely whether Baylor has simultaneously invoked the Pepper Hamilton investigation as both a
sword and a shield in this litigation but rather, “Would it be fair to allow Baylor to protect remaining
undisclosed details regarding the Pepper Hamilton investigation when it intentionally, publicly, and
selectively released certain details of the investigation, including attorney-client communications?”
The Court concludes, with respect to materials covered by the attorney-client privilege, that it would
d. Baylor Waived Attorney-Client Privilege Related to the Pepper Hamilton Investigation
Having concluded that Baylor waived the attorney-client privilege by making repeated
disclosures regarding the Pepper Hamilton investigation, the Court must consider the scope of the
waiver. Baylor’s representatives have repeatedly indicated that the Findings of Fact and
Recommendations summarize and represent the full course of Pepper Hamilton’s investigation. (See
Pls.’ Post-Hearing Br. Ex. A, Dkt. 117-1, at 2 (quoting Baylor’s statement that its interim president
“would like to reiterate that the Findings of Fact fully reflect the themes, core findings and failings
identified in the investigation”); see also Pls.’ Mot. Compel Ex. E, Dkt. 93-5 (describing the
disclosures about the investigation as “an unprecedented institutional mea culpa within higher
education” and “a self-critical summary on the subject of Title IX compliance”)). Because of these
representations, and because of the level of detail publicly released about the investigation as a
whole, the Court concludes that the waiver encompasses the entire scope of the investigation, and
all materials, communications, and information provided to Pepper Hamilton as part of the
Federal Rule of Evidence 502, though not directly applicable here, covers similar concerns and reaches the same
conclusion. Following disclosure of information covered by the attorney-client privilege, Rule 502 mandates waiver as
“to an undisclosed communication” where the waiver was intentional, “the disclosed and undisclosed communications
or information concern the same subject matter,” and where “they ought in fairness be considered together.” Fed. R.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 14 of 21
investigation. To the extent Baylor seeks to withhold any specific communication with Pepper
Hamilton or other counsel as responsive to Plaintiffs’ requests for production as subject to attorneyclient privilege, and not waived pursuant to this order, it must produce an itemized privilege log of
B. Work-Product Privilege
Because the Court has concluded that Baylor has waived its claim to attorney-client privilege
over materials arising out of the Pepper Hamilton investigation, the Court will address the parties’
arguments regarding the work-product privilege. Plaintiffs argue that Baylor is not entitled to the
work-product protection because Baylor did not engage Pepper Hamilton in anticipation of
litigation. Further, Plaintiffs argue that any work-product protection has been waived. Baylor
disputes these arguments.
1. Application of Work-Product Privilege
Work product typically constitutes “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative . . . including the
other party’s attorney.” Fed. R. Civ. P. 26(b)(3). In the Fifth Circuit, “the privilege can apply where
litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the
document was to aid in possible future litigation.’” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586,
593 (5th Cir. 2000) (quoting United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982)). “[F]actors
relevant to determining the primary motivation for creating a document [include] the retention of
counsel and his involvement in the generation of the document and whether it was a routine practice
to prepare that type of document or whether the document was instead prepared in response to a
particular circumstance.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004)
(internal quotations omitted).
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 15 of 21
“[T]he work product doctrine insulates a lawyer’s research, analysis of legal theories, mental
impressions, notes, and memoranda of witnesses’ statements from an opposing counsel’s inquiries.”
Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991). Like the attorney-client
privilege, “[t]he burden of establishing that a document is work product is on the party who asserts
the claim.” Hodges, Grant & Kaufmann, 768 F.2d at721.
The evidence Baylor submitted demonstrates that its decision to hire Pepper Hamilton to
investigate its Title IX compliance was not part of “a routine practice” of the university, but was
primarily motivated by its anticipation of litigation. Baylor provides evidence that by August 2015 it
had reason to expect litigation related to its Title IX compliance. One of Baylor’s football players
was convicted of raping a former Baylor soccer player, and the Waco Tribune reported in late
August that the victim had retained counsel. (Def.’s Resp. Mot. Compel Ex. 1-A, Dkt. 104-2). Prior
to the conviction, Texas Monthly published an article suggesting that “[q]uestions now swirl around
what the program knew and when they knew it” and that “Baylor officials either knew, or should
have known,” of the player’s “history of violent incidents” before he ever came to Baylor. (Def.’s
Resp. Mot. Compel Ex. 2-1, Dkt. 104-3). In a declaration submitted with Baylor’s response to
Plaintiffs’ motion to compel, Baylor’s general counsel explains that the university engaged Pepper
Hamilton “in anticipation of litigation” after media reports like these. (Def.’s Resp. Mot. Compel
Ex. 1, Dkt. 104-2, Holmes Decl. ¶ 5). Another Baylor regent explains that “we knew we faced
potential government enforcement and litigation claims, including one immediate threat of suit,” by
the end of August. (Def’s’ Resp. Mot. Compel Ex. 2, Dkt. 104-3, Harper Decl. ¶ 6). He further
During my tenure with the Baylor Board of Regents, this is the only time I can recall
that we retained outside counsel to conduct this scale of investigation related to legal
and regulatory issues faced by the university. An investigation of this significance and
magnitude was not ordered or conducted as an ordinary matter. The retention or
Pepper Hamilton was the product of Baylor anticipating imminent litigation in
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 16 of 21
connection with [victims of sexual assault] who could retain attorneys at any time in
(Id. ¶ 14). Baylor formally entered into an engagement with Pepper Hamilton in October 2015.
Plaintiffs argue that because Baylor’s public statements about the Pepper Hamilton
investigation did not mention potential litigation, such litigation could not have been the primary
reason Pepper Hamilton was engaged. As with the attorney-client privilege, however, there are no
magic words a party must use to invoke the work-product privilege. Further, it is reasonable that a
party would not want to announce that it anticipated litigation when engaging outside counsel for
fear that doing so might encourage that very litigation.
Plaintiffs point the Court to Banneker Ventures LLC v. Graham, et al., No. 1:13-cv-00391RMC, Dkt. 108, at *10 (D.D.C. May 16, 2017), a case involving the Washington D.C. transit
authority, WMATA, in which the district court concluded that materials arising out of an external
investigation were not protected because the “evidence support[ed] a finding that absent any
anticipated litigation WMATA would have conducted the same investigation.” (Pls.’ Post-Hearing
Br., Dkt. 117, at 5). But the evidence in Banneker demonstrated that the investigation was initiated
more than two years after WMATA became aware of any potential threat of litigation and “was for
internal WMATA business purposes.” (Id. Ex. B, Dkt. 177-2, at 8). While the Banneker court found
that WMATA would have conducted the same investigation absent the potential litigation, this
Court is unable to make a parallel conclusion here. Indeed, the evidence suggests that Baylor would
not have engaged Pepper Hamilton to conduct the investigation in question absent the threat of
Title IX litigation. The work-product arising out of the Pepper Hamilton investigation is therefore
2. Waiver of Work-Product Privilege
Waiver is more narrow in the context of the work-product doctrine than in the context of
attorney-client privilege. Because the work-product privilege exists “to promote the adversary
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 17 of 21
system by safeguarding the fruits of an attorney’s trial preparations from the discovery attempts of
an opponent,” “the mere voluntary disclosure to a third person is insufficient in itself to waive the
work product privilege.” Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989). Disclosure
typically only waives work-product protection with respect to any document actually disclosed.
S.E.C. v. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006). Subject-matter waiver is generally limited to
instances where the quality and substance of an attorney’s work product have been directly placed at
issue in the litigation by the party asserting the privilege. See, e.g., Feld v. Fireman’s Fund Ins. Co., 991 F.
Supp. 2d 242, 255 (D.D.C. 2013) (finding waiver where a party “placed the work of his attorneys
directly at issue”). For example, parties invoking the advice-of-counsel defense in litigation are
routinely ordered to turn over work product supporting this defense. E.g., Simmons, Inc. v. Bombardier,
Inc., 221 F.R.D. 4, 9-10 (D.D.C. 2004) (finding waiver of the work-product privilege with respect to
documents critical to resolving an “advice of counsel” defense).
Although Baylor has impliedly connected the Pepper Hamilton investigation to this
litigation, (See Def.’s Mot. P.O., Dkt. 97, at 4–5 (filing in which Baylor concludes its summary of
actions the university has taken to prevent sexual assault on campus with a reference to the Pepper
Hamilton investigation)), it has not directly invoked Pepper Hamilton’s work as a defense. Baylor’s
answer in this case, for example, includes no reference to the Pepper Hamilton investigation. While
Plaintiffs argue that Baylor will use the investigation as part of its defense in the future, such
speculation is insufficient, at this time, to satisfy Plaintiffs’ burden to show broad, subject-matter
waiver. Should Baylor directly invoke the Pepper Hamilton investigation as part of a substantive
defense to Plaintiffs’ claims in the future, the Court will entertain a motion by Plaintiffs re-urging
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 18 of 21
3. Necessity of Work Product to Plaintiffs’ Case
An exception to the work-product privilege exists where a party seeking privileged materials
“shows that it has substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3). At this time,
Plaintiffs have not made this showing with respect to any work product produced by Pepper
Hamilton in the course of its investigation.
The Court will, however, allow Plaintiffs to re-urge necessity at a later date. It reminds
Plaintiffs of the very high burden required to prove that they “cannot, without undue hardship,
obtain” the materials they seek, or their substantial equivalent. The Court is therefore likely to only
entertain narrow and specific requests for necessity where Plaintiffs have evidence demonstrating
that they have been unable to obtain the information sought through other means.
C. Scope of Remaining Protections & Privilege Log
While the scope of the work-product protection is quite broad, it is not as broad as Baylor
asserts in its briefing. Baylor cannot withhold the names of individuals Pepper Hamilton interviewed
or the documents and data it produced to Pepper Hamilton on the basis of the work-product
privilege. As an initial matter, Baylor has not met its burden to demonstrate that this information
reveals attorney work product. The fact that a person was interviewed by Pepper Hamilton or that
certain documents or cell phone records were produced does not necessarily reveal why the
information was part of the investigation or what role it played in the investigation. 6
Alternatively, even if this information was protected as attorney work product, Baylor has
made a limited waiver of that protection. Baylor has released specific names of individuals that were
The only statements in the declarations made by the attorneys who worked on the investigation that relate to this
argument are that “Pepper Hamilton gathered information from and conducted interviews of Baylor employees” and the
assertion that the “the mechanical compilation of information” reveals the thought process of counsel. (See Def.’s Resp.
Mot. Compel. Ex. 3–4, Dkts. 104-4–104-5). These vague references to data collection do not demonstrate that it was
counsel who decided who to interview and what information to collect nor that any release of that information would
reveal the mental impressions of Baylor’s counsel.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 19 of 21
interviewed and revealed specific sources of data reviewed by Pepper Hamilton. (Pls.’ Mot. Compel
Ex. E, Dkt. 93-5). Just as Baylor could not release half of a memo written by Pepper Hamilton and
withhold the other half as protected, Baylor cannot release the names of certain individuals who
were interviewed and certain data sources and withhold the rest as protected attorney work product.
In light of this analysis, the Court concludes that interview memoranda, notes, emails,
presentations, and other “documents and tangible things that [were] prepared” as part of Pepper
Hamilton’s investigation, and have not been released, are protected. Additionally, questions that
directly seek the mental impressions of Baylor’s counsel need not be answered. For example, Baylor
did not name specific individuals and data sources in its Findings of Fact or Recommendations and
thus need not reveal which documents and interviews formed the bases for those documents. 7 In
addition, the documents selected by Pepper Hamilton to be used in an interview, recordings of
interviews conducted by Pepper Hamilton, and interview notes made by Pepper Hamilton need not
Baylor argues that, because such a large volume of materials were collected and produced to
Pepper Hamilton, the burden of completing the same production to Plaintiffs—and the requisite
privilege review 8—would be out of proportion with the needs of this case. Baylor also argues that
many of the documents produced to Pepper Hamilton are not relevant to Plaintiffs’ claims.
However, Baylor also argues that any narrowing based on the scope of documents reviewed or used
by Pepper Hamilton reveals their attorneys’ mental impressions and work product.
Baylor cannot have it both ways. Pepper Hamilton was hired to review Baylor’s institutional
response to matters under Title IX and related authorities. Presumably, Baylor and Pepper Hamilton
7 For example, Baylor need not respond to RFP 12 because doing so would reveal the mental impressions of counsel,
but must respond to RFP 11. (See Pls.’ Mot. Compel Ex. A, Dkt. 94-1).
8 Although the Court has deemed the attorney-client privilege arising out of the Pepper Hamilton investigation waived,
there may still-protected attorney-client communications within the documents produced arising out of other
communications between Baylor and its counsel.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 20 of 21
did not collect documents or conduct interviews that they did not expect to reveal information
about the school’s compliance under Title IX. The data collection and interviews conducted are
therefore likely to be relevant to Plaintiffs’ claims. To the extent Baylor can agree with Plaintiffs on
the production of a smaller subset of that data based on ESI terms, they may do so. While the Court
encourages Plaintiffs to engage in negotiations regarding a reasonable limiting of the scope of
documents to be produced, the Court will not entertain requests by Baylor for further protection
based on relevance or burden. 9
Next, Plaintiffs argue that they cannot properly challenge Baylor’s claim of work-product
privilege without a more detailed privilege log. Baylor contends that anything more than a categorical
privilege log will reveal the mental impressions and strategy of their counsel.
Federal Rule of Civil Procedure 26(b)(5) requires that, when a party withholds information
under the work-product privilege, they must “describe the nature of the documents,
communications, or tangible things not produced or disclosed--and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”
Fed. R. Civ. P. 26(b)(5). The Court agrees with Baylor that much of its work product cannot be
itemized in a privilege log because doing so could reveal core attorney work product, such as
litigation strategy. The Court will, however, order that Baylor produce an itemized privilege log for
attorney work product that is primarily fact-investigation oriented. This includes interview
recordings, notes, and summaries; notes and summaries based on the review of documentary
evidence; and any other documents that summarize or synthesize evidence, such as chronologies or
timelines. As the Court ruled earlier, any documents responsive to a request involving Pepper
Hamilton that are withheld or redacted on the basis of attorney-client privilege must also be
included in an itemized privilege log.
For documents already produced to Plaintiffs, Baylor need not produce the documents a second time, but may identify
them by bates number as part of the documents produced to Pepper Hamilton.
Case 6:16-cv-00173-RP Document 168 Filed 08/11/17 Page 21 of 21
Finally, production of documents and information due to this order shall not be considered
waiver with respect to claims of privilege in any other case in state or federal court. Documents
produced by Baylor pursuant to this order shall be subject to the protective orders already entered in
this case where applicable. In addition, the privilege logs Baylor produces pursuant to this order shall
be treated as Classified Information.
Plaintiffs’ Motion to Compel Pepper Hamilton Materials, (Dkt. 93), is GRANTED IN
PART AND DENIED IN PART in accordance with this Order.
SIGNED on August 11, 2017.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?